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?

The Problem With "On the Killing of Trayvon Martin by George Zimmerman"

It passes so quickly it might go unnoticed:

4.) I think Andrew Cohen is right -- trials don't work as strict "moral surrogates." Not everything that is immoral is illegal -- nor should it be. I want to live in a society that presumes innocence. I want to live in that society even when I feel that a person should be punished.

Trials are nothing but moral surrogates, and have been for a long time. The two big components of trials have always been in tension, and that tension has been more precarious in the US than is commonly admitted: there are procedural rules that are to be followed--presumption of innocence et al--and whether the outcomes are just. As it turns out, people have very little patience for procedurally legitimate but unjust outcomes.

Justice is the tail that wags the dog: if the outcome of the trial is deemed just, then procedural questions are minimized or overlooked; if the outcome is 'wrong,' then there must have been a procedural error somewhere. (Trial procedures being what they are, there's frequently such an error to latch onto.) To see how this works out, one needs only look back as far as the DOMA and Prop 8 rulings: what matters to the vast majority of people is that the outcome is 'right.' The legal nitty-gritty and the further consequences of the ruling are immaterial.

That America has a commitment to the rule of law, the presumption of innocence, and all the rest, is one of those stereotypes that we tend to believe without much reflection on whether these enter into the actual reaction to cases as they arise. Assuming that people will react to trials as moral surrogates explains pretty much everything we see.

A Thought on the Prop 8 Case and Ethical Obligations

In re: this ("The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law") and this ("With today's decision, the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land"):

In college they told us about the dispute resolution triad--every civil or criminal case has two competing parties and someone tasked with resolving the conflict. On two ends, this is not a problem at all: the arbitrator will be convinced of the fairness of their ruling, and the winning side will be happy to have won. The problem of administering law is convincing the party that loses to accept the result. It does this in equal parts by claiming neutrality--considering the legal merits of each argument and not the people arguing--and the most vigorous possible defense of one's position. The lawyers are not expected to be neutral: their job is to produce the best possible result for their side. The system requires people to behave impersonally: there are roles, and the roles must be filled. A criminal defense lawyer who tanks a case because they believe their client to be guilty has committed an ethical violation, even if the person is in fact guilty and the punishment they receive is wholly deserved.

The problem with the Prop 8 case is that the state failed its ethical duty to its citizens. The court was right to hold that the petitioners lacked standing--it's hard to see how it could be granted here and not to many, many other petitioners who had less of a case. I am not particularly interested in the merits of Prop 8 itself, nor in the referendum system that produced the law. The problem is that the state did not fulfill its prescribed role: to defend the laws independently of what it thinks of them. The state officials represent the people, who live in a state with referendum laws: if a referendum passes it's a law no less than one that goes through the state legislature. It's not the place of the state to decide which laws it wants to defend in court or anywhere else: if the rule of law holds up as an idea, it needs to apply equally and all the time. Just like the ethics of the lawyers actions are independent of the guilt of their client, the actions of the state in judicially defending the law should be the same regardless of the wisdom of the law (after all, the court can always strike the law down on its merits).

The most interesting implication of this would be a countering view that contends that state officials can and do make discretionary choices all the time about when to apply, enforce, and prosecute under certain laws (and much Supreme Court hay has been made from these: Griswold and Lawrence come to mind). But this seems to prove what a work-to-rule strike proves: that the collection of laws we have is too vast and complex to be enforced as written. Unresolved is the question of why this state of affairs should be considered desirable.

Who knows how the ACA decision will come out, but a couple general points worth reiterating:

1. I'm surprised at how many people are surprised that judges are (at least sometimes) political actors, and not simply impartial arbiters of the law. Some of this outrage, from both sides, is feigned by people who know better; some of it appears to be genuine. The Supreme Court, no less than any other judicial body, is subject to political pressure: it's why Marbury v. Madison is decided as it is, it's why the Court didn't decide habeus corpus cases until after the Civil War, it's why the Court backed down after FDR's court-packing scheme, it's why Brown v. Board had to be argued three times. Legal realism, y'all.

2. The Supreme Court is not democratic. This is intentional. It is not a flaw. Democratic norms are all well and good, but in pure democracies people tend to occasionally make poor decisions, and so our government is filled with non-democratic pockets whose purposes are to do other things: in the Supreme Court's case, to protect rights and liberties and understandings of law that might otherwise be placed aside for temporary and inadvisable political reasons.

3. That judges are political actors does not compromise the value of their judgments, right or wrong. It's not inconceivable that people who hold an office might put aside their considered political opinions, or temper them, when deciding a case. And political arguments of expediency and legal arguments from principle are often hard to distinguish. To validate this, one would have to look at individual decisions, and conclude there was no plausible explanation for the views expressed therein but political argumentation. Which, I imagine, would be quite hard to do.