This is a melancholy and sensitive short piece by the poet and essayist Charles Simic on the closing of libraries in this country. When I was a kid, I spent long periods of time in the local library where I grew up, and some of Simic's reflections about the nature of library reading -- a kind of leisurely macerative quality -- rang true for me. My most recent extended library experience was at the New York Public Library tracking down some 19th century British articles and magazine pieces on microfiche. That was fun too (what a library!), but more like the sort of directed reading that one does on the Internet. I wonder whether libraries will still exist for my children's children.
Thursday, May 19, 2011
Death of the Library
Monday, May 16, 2011
Rao on the Multiple (and Conflicting?) Meanings of Dignity
I haven't had a chance to read all the way through this paper by Professor Neomi Rao, but the introduction looks really good.
Chaucerian Legal Ethics
I have sometimes thought that somebody should write an article about the Man of Law in The Canterbury Tales, and in particular what his character, and his tale, suggests about certain...perennial issues in legal ethics. Rob? Here is the description of the lawyer in the Prologue (in modern English):
A sergeant of the law, wary and wise,
Who’d often gone to Paul’s walk to advise,
There was also, compact of excellence.
Discreet he was, and of great reverence;
At least he seemed so, his words were so wise.
Often he sat as justice in assize,
By patent or commission from the crown;
Because of learning and his high renown,
He took large fees and many robes could own.
So great a purchaser was never known.
All was fee simple to him, in effect,
Wherefore his claims could never be suspect.
Nowhere a man so busy of his class,
And yet he seemed much busier than he was.
All cases and all judgments could he cite
That from King William’s time were apposite.
And he could draw a contract so explicit
Not any man could fault therefrom elicit;
And every statute he’d verbatim quote.
He rode but badly in a medley coat,
Belted in a silken sash, with little bars,
But of his dress no more particulars.
Wednesday, May 11, 2011
Action, Inaction, and Control
With the arguments in the Fourth Circuit dealing with the constitutionality of the PPACA now over, it appears that for the action/inaction argument to get off the ground (if it should get off the ground), some firm theoretical basis for making the distinction needs articulation. There are some nice posts over at Volokh discussing the basis for the distinction. In a previous post, I suggested that criminal law, like other fields, draws the distinction, and Jonathan Adler makes some arguments well worth considering about the classical liberal view of the importance of the distinction.
I want to offer a speculation here about the nature of the distinction, at least at criminal law, but possibly with applications to the Commerce Clause area, though I am not sure at all precisely how. The speculation is purely theoretical -- it's an attempt to begin to think about what the nature of the distinction between action and inaction might involve -- and so it does not depend on any specific limitations about what Congress can or can't do under Article I or any structural limitations that might apply in any given field.
My speculation is that at least one criterion through which the action/inaction distinction might be analyzed is control. Where a person is in a position to exercise a sufficient quantum of control over some external event, that person can be held (morally, legally) responsible. Generally speaking, it is appropriate to assign criminal liability, for example, when a person "acts" but largely, if not only, because a person is more likely to be in a position to control his actions than not. If a person is not able to control his actions, we do not assign criminal liability, oftentimes by excusing the person. That is, we regulate (through criminal law) many kinds of actions because people are generally -- in the main -- in control of their actions.
Conceptually, the very same thing might be true for omissions/inactions. In criminal law, one who is in a position of sufficient control over whether not to do something is often punish-worthy. Consider a statute criminalizing the failure to pay income taxes (referenced in one of the comment threads over at Volokh). The reason that inaction/omission is punishable in such circumstances is that individuals are in a position of consummate control over the decision whether to pay or not. No one objects to the lack of an act in such cases, and the reason is control. Or how about the failure to act when one has put another person in a position of danger. Again, the issue is that by taking charge of the situation by creating the danger to the victim, one has placed oneself in a position of greater control than would otherwise be the case.
If, for purposes of regulation (in the criminal sphere, or elsewhere), the question of control is key, that might indicate that there is no categorical divide between action and inaction. The critical issue, insofar as regulation is concerned, is the differential degree of control over what one chooses to do, and chooses not to do. While it will often be the case that one has greater control over one's actions than one's omissions, that certainly will not always be the case. Perhaps most importantly, the label of action or inaction will not itself be able to resolve the question of when control over an action/omission is sufficiently strong to warrant regulation.
UPDATE: In another interesting post, Orin Kerr explicitly raises the relationship between actus reus and omission liability in criminal law and the action/inaction distinction. Orin correctly notes that what makes it possible to punish for omissions is the existence of a duty to act, and he lists the traditional categories where such a duty exists. But for me, that only pushes back the inquiry a step. Yes, there is a duty in such cases. But the question is why we impose a duty. I think that the answer relates again to the issue of control. We have carved out certain categories of omission liability in criminal law because in those situations (e.g., parent-child relationships, entering into a contract, voluntary assumption to care for another person, creation of a danger to another -- see Orin's cruise control/pedestrian example), the person who omits to act has a substantially greater capacity to control the situation than do other people. Moreover, the advantage of my control explanation is that it can explain omission liability in those cases where there is not a traditional "duty" -- such as failure to pay your taxes.
Tuesday, May 10, 2011
Summer Reading List Bleg: Constitutional History
I am trying to bone up (i.e., learn) as much as I can about constitutional history over the summer (and thereafter), and am constructing an aspirational, impossibly long, reading list for myself. I am trying to be worthy of this absolutely fabulous new text-book, which I am planning to use next spring.
While the subject is not related to CST proper, I'd be grateful for your suggestions in the comments about excellent books on the subject (and if there is a component of intersection with CST, even better). I am looking not so much for constitutional theory per se as for constitutional history with a distinctively legal (doctrinal or theoretical) valence. For example, first on my list is Akhil Amar's America's Constitution: A Biography.
How Not To Argue Against Torture
This column by Dahlia Lithwick from a few days ago struck me as right on the merits, wrong on the manner of argument. And for those who think tone and style don't matter, so long as the arguments are right, I must disagree. Particularly with a subject as fraught as the justifiability of torture -- as seemingly dependent on who does what to whom, how recently one has suffered serious losses, how big the stakes appear to be -- the style of argument makes a big difference.
As I said, I agree on the merits with Lithwick (mirabile dictu). Torture is wrong, whether it leads to useful information or not. I also agree with the very different point, further down the page, that correlation does not necessarily imply causation. That is a worthwhile and important contribution, but it is an empirical point that requires -- not Lithwick's rhetorical splashing about -- but greater capacity to test the effectiveness of various techniques for eliciting information. As it stands now, there is a 'tu quoque' quality to the argument -- we don't know for sure that torture elicits reliable information, and we don't know for sure that it doesn't.
Having said that, I disagree almost entirely with the rest of the tone. First there is the languid, supercilious dismissiveness of others' views ("Do we have to have another national debate about torture? Really do we have to?"), as well as the characterization of anything which does not match up with the view advanced as "stupid" and "self-serving propaganda." "A bunch of Bush officials" are cast down for obloquy -- sui generis moral reprobates. But in reality, the debate endures because it is an enduring question. It would be a mistake to assume that with changed political circumstances necessarily come changed moral views. Indeed, there is a danger that when those whom one admires hold the reins of power, one is more susceptible of being blind to missteps.
Next, there is the puzzling statement that "the only reason we are having this discussion at all is because we have tortured people." But of course -- the only reason that we have discussions about nutrition is that people eat things. The only reason that we have discussions about the justification of punishment is that people commit crimes. The only reason that we have debates about self-defense is that people sometimes attack one another. If a matter is of human concern, it is often proper to have discussions about it. Torture is no exception.
Third, there is the proclamation that the discussion of torture attending the killing of Osama Bin Laden is a "national embarrassment" because we are not debating the effectiveness of other intelligence-gathering mechanisms. I do not understand why that should be embarrassing. I don't feel embarrassed. Other intelligence-gathering mechanisms may or may not carry the same moral freight as the torture issue. If they do not, then it is no surprise -- and certainly nothing to be embarrassed about -- that we are not talking about them in public fora.
Those that believe torture may be justified, writes Lithwick, "are now using half-facts and unverifiable assertions to ask another question: Does torture work? Unsurprisingly, they claim that it does. That's nice. Let's ignore them." I could not disagree more. Indeed, I take it that Lithwick herself, in writing this column, is not ignoring them. She is engaging with them. But the style of engagement leaves much, in this reader's view, to be desired.
Lawrence Joseph Honored
My colleague, Lawrence Joseph, has been honored by the University of Michigan; its graduate library has recently acquired his professional and personal papers. Larry's most well-known book, Lawyerland, is a very interesting work of fiction about the law.
Thursday, May 5, 2011
Is Vengeance Forbidden?
In the discussion of the killing of Osama Bin Laden here (see below for various posts and comments), I have been struggling with the notion that the motivation/justification of vengeance seems to be categorically off the table -- an unequivocally forbidden reason for wanting to kill -- at least for Catholics, and perhaps for Christians generally. Contemporary theories of punishment, to the extent that they are analogous (perhaps they are not), likewise generally disdain vengeance, preferring instead to rest on deontological or consequentialist bases. It was not always so for theories of punishment -- and as some authors (e.g., Paul Robinson and John Darley) are finding out, popular ideas of retribution and vengeance are not so easy to disaggregate.
But I've got a different question for MOJ readers. For Catholics, is vengenace totally off limits? I ask the question in all humility, as I genuinely don't know. I anticipate that someone might cite Romans to me -- "'Vengeance is mine,' saith the Lord." Fair enough -- but the admonition here seems to be not that vengeance is morally wicked (after all, it is God's) but that human beings should act with great caution when they are motivated by vengeance. They ought to temper their vindictive instincts because they (unlike God) are not in an epistemic position to act purely from vindictive motives (cf. John 8:7).
Does that mean that human beings should repress totally the emotion of vengeance? I have difficulty believing this.
Wednesday, May 4, 2011
Imminence, Unlawful Aggressors, and Proportionality in Self-Defense
Below, in a thought-provoking post by Eduardo, I express some reservations that the Catechism's provisions on "legitimate defense" are applicable to the killing of Osama Bin Laden. I hope I did not derail that thread by petulantly resisting the hypo, but I think it might be worthwhile to spell out a few reasons for my view.
Part of the reason that I continue to question whether it is appropriate to characterize the killing of Osama Bin Laden as governed by the legitimate defense section of the Catechism deals with the traditional requirements in criminal self-defense of imminence, proportionality, and the resistance to unlawful aggressive force. I believe that each of these elements of the criminal law of self-defense makes an appearance in the Catechism in the "legitimate defense" section (sections 2264-67). And I believe that none of them has a role in the military killing of Bin Laden.
First, imminence. In criminal law, a person is not justified in using defensive force of any kind (deadly or non-deadly) unless the threat is imminent. The requirement has been challenged by scholars, but I think it is a good one. Kimberly Kessler Ferzan has argued that the requirement of imminence individuates those aggressive threats which a human being feels in some way compelled, just in virtue of being human, to respond to for purposes of self-protection. One would not be a human being without the primal instinct toward self-defense in the face of an imminent threat, but absent imminence, it's a different story. Second, unlawful aggressive force. It is this kind of force, and only this kind of force, which triggers the possibility of self-defense in criminal law. Note that the requirements of imminence and unlawful aggressive force relate to one another. One would not get a self-defense instruction if there was evidence that, for example, 10 years ago, somebody used deadly aggressive force on you, but when you actually killed the aggressor, he was asleep or even resisting you with non-deadly force. Most states also retain the rule that self-defense is unavailable to the initial aggressor, unless that aggressor stands down and communicates his withdrawal. Third, proportionality. Whatever self-defensive force is used must be proportional to the aggressive force. Deadly self-defensive force in response to a non-deadly aggressive threat is not justified.
One sees each of these three components in ss. 2264-67. Imminence and response to unlawful aggressive force are addressed together, and the Catechism even notes the issue of "[l]ove toward oneself" as the motivating issue in response to imminent aggressive force. Proportionality shows up in the example given in s. 2264: "If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful. . . . Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's."
None of these elements of self-defense is applicable to the killing of Bin Laden. The threat that he posed, at the time when he was killed, was not imminent -- at least insofar as he posed a deadly imminent threat. He may have been using unlawful aggressive force (though I wonder about this too -- unlawful according to what law, exactly?), but it is now known that he was unarmed at the time. Applying criminal law principles of proportionality, the most that one could say is that any proportionate self-defensive force should have been non-deadly. He should have been wounded, but not killed. But the military was not instructed to apply principles of criminal law (quite rightly, of course). It was instructed to "kill or capture" -- which I have since learned is the standard instruction when killing the target is the aim of the mission.
Greg Sisk, in a previous post, pointed up other provisions of the Catechism which might apply to the killing of Bin Laden. That might be right -- I'm not certain those apply either. Maybe it's the case that nothing in the Catechism is on point. But if that's the case, I don't think we should squeeze the round peg of a military killing into the square hole of criminal self-defense. Bin Laden's killing, if it is justified, doesn't require justification through those principles.
UPDATE: In a story reported here, Attorney General Holder suggests that Bin Laden could have been killed by our military forces had he offered no resistance. If that is true, we are at an enormous distance from the domestic criminal law of self-defense, as well as what is contained in the portions of the Catechism discussed in this post.
Monday, May 2, 2011
The Perils of Restitution as an Aim of Punishment
Restitution is fast becoming one of the most powerful functions of punishment. Nowithstanding some loose connections with retribution, I've expressed some reservations here about restitution -- as well as victim vindication generally -- at least as a core aim of criminal punishment.
For those who are interested in this subject, may I recommend this terrific new piece by my colleague, Adam Zimmerman (co-authored with David Jaros), The Criminal Class Action, which documents and analyzes some interesting and problematic developments with respect to the increasing prominence of this punishment aim.
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