Easy Cases Make Bad Law

Chris Lawrence, on Facebook, brings attention to Eugene Volokh on the racist-frat-at-Oklahoma explusions. Volokh comes to the reasonable conclusion that offensive racist speech may be censured in a number of ways, but expulsion from a public institution is not one of them. This puts me back in mind of my best unrealized paper idea from my academic days: "easy cases make bad law." People who study law know why hard cases make bad law--they're idiosyncratic instances that are unlikely to repeat in a manner conducive to the generalizable form law must take, virtually guaranteeing unanticipated consequences--but easy cases do, as well.

The impetus for the idea came from studying the formation of the Nuremburg Tribunal law: France, Britain, Russia and the US get together to figure out how to improve of the then-reigning plan for dealing with senior officials in the Nazi government: summary execution. One can read the US representative's report, which includes minutes of the discussions of the four representatives, and be horrified at the way the law was put together. Sometimes standard legal procedures were followed, sometimes not; sometimes appeal was made to the basic principles of legality, sometimes they were conspicuously avoided; sometimes discussions were had in great detail, sometimes central problems are waved away. No issue is more depressing than the treatment of 'aggressive war,' a concept everyone seems to know and no one is able to define in a way that separates out Nazi from Allied actions. The IMT punts on the question, and makes little use of the category--and it's still a problem 50 years later during the writing of the Rome Treaty (that formed the ICC), where everyone once again agrees that aggressive war is a problem and no one knows exactly how to define it.

It's not that the IMT was bad--under the circumstances, it was pretty good (the frequency with which the US and the Soviet Union agree on matters of legal principle should be a little disturbing). It was certainly preferable to summary execution. No, the problem was the basic situation in which the deliberation was happening. There was no particular reason to doubt that senior Nazi officials were guilty of something, probably many things. A legal system that works provides procedural safeguards and returns the 'correct' result. But: there are a lot of different institutional arrangements that can do this. The question of the system's suitability is not whether it can produce the right outcomes here, but in other, more difficult cases. On this, the general unwillingness of international criminal law to treat Nuremberg as a legitimate precedent is telling.

Back to the racist frat case. It feels satisfying to expel people who were doing something that obviously wrong, who were doing it without shame; it feels good to be able to act with maximum force for a good cause. But it's bad policy, because it won't work as well on more complicated cases: we can't throw everyone out who says anything some people find offensive.* There's also a connection to the internet's economy of shame: it feels good, or satisfying, to make someone lose their job for posting offensive material on the internet--no one's going to feel too bad for those dudes who decided Curt Schilling mentioning his daughter was a good pretext to write vile, sexist stuff about her--but it's no solution to anything. Sustainable practices--good, fair, stable practices--need a better context, need serious thought devoted to potential long-term ramifications, the difficulties of scaling up behaviors and institutions, and the facts of human fallibility when forgiving offenses or implementing justice. Most of all, there needs to be recognition that there are always a wide variety of options in play, and sometimes it makes sense to choose one other than the most extreme, even if it doesn't feel as satisfying.

*I was teaching a course on human rights when Kony2012 broke (remember that?), fortunately over Spring Break that year. By the time classes were back in session, the ICC had just convicted Thomas Lubanga for similar crimes to Kony's, for which he is expected to serve something like a dozen years in jail. The students were confused and dismayed, but I had to remind them: you can't throw the book at everyone who does something you don't like, even if they did many bad things. If you give life in prison to someone who used child soldiers, what are you going to do with the person who commits genocide?

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