Some MOJ readers will be interested in this statement by Professor Larry Lessig of Stanford Law School, on why Barack Obama is a much better candidate for the presidency than Hillary Clinton.
Thursday, February 7, 2008
Interesting Statement on Barack Obama
"Religion and the Constitution" at Princeton
If you are in the area, consider coming to this conference, on "The Contributions of William H. Rehnquist to Constitutional Jurisprudence", tomorrow at Princeton. The conference is co-sponsored by the James Madison Program there and by the Program in Law and Public Affairs. I'll be speaking on "Religion and the Constitution"; Kent Greenawalt and Donald Drakeman will be responding. There are also panels on Federalism and Constitutional Criminal Procedure.
Wednesday, February 6, 2008
The Big Day
So, Super Tuesday is done, the Holiday partying has subsided, the college-football season is (thankfully) a fading memory, the commercial-fest -- I mean, Super Bowl -- is done . . . and so, now, finally, today we can get to what really matters: Duke v. Carolina. Go Devils.
Reaction to Subjective Experience of Punishment
Michael Simons, criminal law scholar at St. John's University School of Law, had this to say regarding some of the questions raised in Rob's post about the subjective experience of punishment:
"The main problem with considering subjective experiences of punishment (an idea to which I'm theoretically amenable) is that it tends to disadvantage the already disadvantaged. In other words, offenders whose lives already involve significant suffering (the poor, the homeless, the unemployed, the hungry) will need to be punished more to experience some predetermined level of suffering, while offenders whose lives involve substantial pleasure (the rich, the employed, the happily married) will need to be punished less to experience an equivalent level of suffering. Aside from the obvious injustice of a preferential option for the rich, differing punishments run counter to other instincts about retributive desert (e.g., that the rich offender is more culpable than the poor offender)."
A Lenten Fast
From the Office of the Readings for Ash Wednesday, taken from Isaiah 58
The Lord says -
“Is not this the fast that I choose:
to loose the bonds of injustice,
to undo the thongs of the yoke,
to let the oppressed go free,
and to break every yoke?
Is it not to share your bread with the hungry,
and bring the homeless poor into your house;
when you see the naked, to cover them,
and not to hide yourself from your own kin?
Then your light shall break forth like the dawn,
and your healing shall spring up quickly;
your vindicator shall go before you,
the glory of the LORD shall be your rear guard.
Then you shall call, and the LORD will answer;
you shall cry for help, and he will say, Here I am.
If you remove the yoke from among you,
the pointing of the finger, the speaking of evil,
if you offer your food to the hungry
and satisfy the needs of the afflicted,
then your light shall rise in the darkness
and your gloom be like the noonday.
The LORD will guide you continually,
and satisfy your needs in parched places,
and make your bones strong;
and you shall be like a watered garden,
like a spring of water,
whose waters never fail.”
The Subjective Experience of Punishment
Punishment theory is a recurring topic here on MoJ, and Princeton's Adam Kolber has posted an interesting paper that might prompt more conversation: The Subjective Experience of Punishment. (HT: Solum) Here's the abstract:
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.
There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.
I have no idea how this would work, but it raises a good question: should a Catholic legal theory of punishment focus more on the defendant's experience of retributive judgment or on society's legitimate expectations of retributive judgment? Is the measure of "justice" viewed primarily through the defendant's perspective or through society's? Or both?
Tuesday, February 5, 2008
Obama-Mania
Tonight is the Minnesota caucus, and my attraction to the candidacy of Barack Obama has encountered a couple of stumbling blocks. First is the fact that George Clooney and a slew of Hollywood types have seen fit to endorse him, which must give one pause. Second, more seriously, Obama was outspoken in opposing the Born Alive Infant Protection Act in the Illinois Senate, which is probably old news for many MoJers. The same measure passed the United States Senate by a vote of 98-0. Not a promising vehicle for pro-life progressivism, to say the least.
A follow-up on the quotation of the day
Thanks to Rob for giving us the link to the Carnegie Foundation’s summary of its report on Educating Lawyers: Preparation for the Practice of Law. I shall read the summary, and I hope to be able to read the full report which is presently not available on line. I do have a preliminary reaction to the student at the “very selective private law school” who asserted, “Law schools create people who are smart without a purpose.” This student does not specify if he or she is without purpose, but it is apparent that there is evidence of this phenomenon at least in the school attended by the student whose opinion is reported. There are several issues needing further study on this student’s view. The first is: will any purpose satisfy this student, i.e., any purpose will be sufficient so that “smart” students will be fulfilled if they believe in euthanasia, abortion, infanticide, etc.? If so, this is problematic. A second question follows: assuming that morality has a role in defining purpose (and I think this is vital to defining purpose), by what standards is this morality to be determined? I think there is evidence that smart people (including lawyers and, therefore, law students) who have no objective moral compass don’t always do smart things notwithstanding their purpose. RJA sj
Monday, February 4, 2008
"A Prolife Progressive's (Fictional) Run for President"
A new blog, "Prez4Life," is developing the fictional narrative of a "pro-life progressive" -- a former Minnesota Democratic senator -- running for president as an independent. It looks interesting, both for its effort at serial blog fiction incorporating real campaign developments, and for the vision it imagines. The author is, at this point, anonymous and unknown to me (despite the reference to the "pro-life progressivism" conference at St. Thomas Law a few years back).
Tom B.
Quote of the day
In the recent Carnegie Foundation report, Educating Lawyers: Preparation for the Practice of Law, one quote in particular jumped out at me from the section reporting on law schools' failure to engage students seriously in the process of moral formation. As reported on page 142, a student at a "very selective private law school" explained to the researchers, "Law schools create people who are smart without a purpose."
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