Feb 17, 2010 Orin Kerr
I am a big fan of the criminal law scholarship of Paul Robinson. This article in particular is a valuable work of scholarship that should be helpful to any professor or student of criminal law.
To understand the value of the article, consider the beginning of first-year classes in criminal law. The standard way to teach criminal law is to begin with the two basic reasons why we punish criminal conduct: Utilitarian reasons, such as deterrence, and retributive reasons, such as to achieve “just deserts.” Utilitarian theories are easy to explain and are intuitive to most students. On the other hand, criminal law professors generally struggle to teach retributive theory. The topic seems impossibly vague: Different academic theorists have different theories as to what they personally think retribution should mean, but those academic theories often seem quite apart from what most citizens actually feel. The result is an uncomfortable gap in which professors teach retribution without offering a clear sense of exactly what retribution actually is or how retributive theories should play into arguments about criminal punishment.
This article, co-authored by Robinson and Penn psychology professor Robert Kurzban, argues that whatever the difference among views of retribution and justice among theorists, widely-shared perceptions of justice exist among laypersons in a particularly important set of punishment questions. That is, there are types of criminal law problems that generate pretty fixed notions of retributive punishment among most people, as well as other types of criminal law problems that do not.
They make the argument primarily based on a series of experiments. In the first set of experiments, test-takers were provided a list of 24 different short scenarios involving possible criminal acts. The crimes included thefts, assaults, robbery, rape, various types of homicide, and other kinds of physical and property-based crimes, all in a range of situations, including some that brought up issues of self-defense, duress, the insanity defense, and the like. The test-takers were asked to rank the 24 scenarios in order of how much criminal punishment, if any, the wrongdoers deserved. The results revealed a tremendous amount of shared intuition among test-takers: They shared a great deal of agreement as to what facts deserved punishment and what scenarios deserved more or less serious punishments.
In the second set of experiments, test-takers were provided a list of 12 short scenarios involving crimes that have generated significant public debate: drunk driving, drug offenses, late-term abortions, prostitution, and a few others. Again, the test-takers were asked to rank the scenarios. This time, however, test-takers revealed a wide range of variation in their views, with different study participants disagreeing as to which crimes were more or less serious and how they compared to the traditional offenses.
The authors conclude with some normative ideas that they develop in subsequent work, the gist of which is that criminal law theorists need to grapple with these surprisingly fixed notions of justice in a wide range of traditional crimes. Whatever theorists may think people should feel as a normative matter, as an empirical matter, members of the public share surprisingly fixed notions of justice in traditional crimes—and especially the kinds of crimes discussed in a criminal law course.
From the standpoint of law reform, then, reformers likely need to accept these shared intuitions as settled. And from the standpoint of teaching criminal law, I would add, professors need to recognize that there are relatively fixed and surprisingly hard-wired judgments widely shared in society that help to generate the legal rules found in criminal law codes and casebooks.
Feb 11, 2010 Ron Wright
Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice. He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.
Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades. It is an exceptionally timely topic. Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality. By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio. Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years. Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought. Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases.
The second major component of this article is a review of the far-flung literature on “restorative justice,” a method of responding to crimes that emphasizes the experience of the crime victim, both during the adjudication of the charge and in the selection and execution of the punishment. After summarizing the diverse literature on this topic (drawn from criminology, psychology, and other disciplines) Simmons moves to the heart of his project: he draws out the connections between these two phenomena.
Both private policing and restorative justice emphasize the experience of the crime victim, and both grow out of frustration with the public enforcement system. Just as private couriers respond to shortcomings at the U.S. Postal Service, private policing and restorative justice appear when victims of crime get no satisfaction from public prosecutors, criminal court judges, and public corrections officials. In this economic analysis, private firms spring up to meet a demand.
Simmons then confronts a dilemma: private firms have largely succeeded in the realm of policing, but not so in the arenas of criminal adjudication or criminal punishment. Private police now identify an enormous number of criminal suspects after the fact, but there is nowhere to send them. The victims of the alleged crimes have few satisfying alternatives to public criminal adjudication or public criminal punishment. The capacity of restorative justice programs such as victim-offender mediation is tiny, typically measured in the hundreds.
Private capacity to impose something akin to criminal penalties is expanding when it comes to small crimes. In some of the most interesting and original research presented here, Simmons surveys journalistic sources for evidence that the purchasers of private enforcement impose their own low-level punishments. For instance, many large retailers (including Wal-Mart) only issue warnings to persons they accuse of stealing small amounts of merchandise for the first time. Property owners eject perpetrators from the premises; employers fire their employees accused of theft and other crimes.
What about private adjudication and punishment for more serious crimes? Simmons suggests (pages 962-967) that parties should resort more frequently to victim-offender mediation in a broader range of cases, without waiting for public prosecutors to file charges or for criminal court judges to refer cases to mediation. The article explores the possible uses of mediation in serious property crimes, a few crimes of violence in organizational settings (such as employee assault cases), and even intra-family violence. He envisions public prosecutors as monitors of this private system, standing ready to file charges in the public system if the private outcome does not adequately protect public interests.
As a matter of positive theory, this is a wonderful synthesis. Simmons offers an economic and historical lens for connecting several different unstable trends in criminal justice today. Each of these trends can be understood as part of long-term fluctuations between public and private control of criminal sanctions. This article explains why the privatizing trend reaches law enforcement at the start of the process and punishment at the end of the process, but not the adjudication stage in the middle. Readers can see why dissatisfaction with plea bargaining, sentencing guidelines, crowded prisons, and domestic violence arrests—critiques of criminal courts that span from right to left on the political spectrum—all flow together into a demand for private criminal justice.
At the same time, I believe that this article is less fully developed in terms of normative theory. Simmons does not explain in a satisfying way why the private-initiated adjudications that he imagines have not already taken off, given the obvious sources of demand and funding for it. The article also raises a few questions about the desirability of the private criminal justice system for some important groups of “customers.” Is there any reason to believe that innocent defendants will opt out of the private system at rates any higher than factually guilty defendants? If not, this is troubling, since criminal mediation begins with the shared premise that the accused person has harmed the victim.
Finally, there are many unexplored questions here of institutional competence. While Simmons declares—in a bit of overstatement—that “the Constitution is the source of all significant limits on public police powers” (page 929), we actually see a great deal of legislative activity in arenas such as wiretapping and (more recently) eyewitness identification procedures. Much fruitful work in the future might explore which aspects of private criminal justice are likely to attract the attention of legislatures.
Jan 21, 2010 Jennifer Chacón
One of the most interesting (and frequently distressing) aspects of teaching and writing about immigration law is the opportunity it affords for studying the interplay between immigration regulations and the criminal law. A number of scholars, including contributing editor Jack Chin, have turned their attention to this interplay before. More recently, in Rethinking Drug Inadmissibility, Nancy Morawetz explores how changes to drug laws and to the inadmissibility standards in the federal immigration law have generated an inflexible, zero-tolerance immigration policy on minor drug use that is in dire need of reexamination.
Because her article highlights the interaction between the criminal law and the immigration regime, it is essential reading for anyone interested in criminal justice. It is also an interesting read for anyone interested in how a few small and relatively thoughtless changes to a complex statutory scheme can have tremendously harsh practical effects. Finally, it is a critical read for everyone who hopes to have a better understanding of upcoming legislative attempts to enact some form of comprehensive immigration reform. As Morawetz urgently notes, “[p]roposals for comprehensive immigration reform in 2007 all included, as a minimum requirement, that the individual be ‘admissible.’” Id. at 182. Thus, absent legislative attention, the sweeping drug inadmissibility rules that Morawetz discusses in this article will likely bar a number of noncitizens with very old and very minor past drug use from normalizing their immigration status, even if the equities of their individual case should dictate a different result.
In the first section of her article, Morawetz discusses the changes to the immigration laws that have generated the harsh modern drug inadmissibility rules. The Anti-Drug Abuse Act of 1986, rushed through in the wake of the death of Len Bias, replaced the then-existing provision that had been interpreted to bar only those convicted of “illicit” drug possession with a provision that cross referenced the law or regulation of a state or foreign country ‘relating to’ a controlled substance. As Morawetz notes, this revision to the drug exclusion ground “opened the way for drug exclusion to automatically expand with state laws that made prosecution easy.” Id. at 172-73. It also meant that from that point forward, drug inadmissibility was keyed not to federal standards, but to the law of the jurisdiction where the individual commits the offense. This has generated not only an expansive but also an uneven application of the bar.
According to Morawetz’ account, the Immigration Act of 1990 compounded an already bad situation. In that Act, Congress consolidated the drug inadmissibility grounds with the grounds for inadmissibility for crimes involving moral turpitude (CIMTs). The effect was to expand the drug inadmissibility grounds to include not only drug convictions, but also admissions of violations of drug laws. Moreover, as the statute was reorganized, the exceptions that were carved out for CIMTs (for youth or petty offenses) did not apply to drug crimes. Interestingly, there is no indication that Congress deliberately set about to heighten the drug inadmissibility bar, and Morawetz suggests that it was a largely accidental result of statutory reorganization.
Finally, Morawetz notes that in enacting the Immigration and Nationality Act Amendments of 1981—the one moment in recent legislative history when Congress did consider expressly the question of waivers for drug inadmissibility—Congress, with the urging of the administration, created an extremely narrow waiver that neither reached “many circumstances that Congress had previously found worthy” of exception, nor allowed for flexibility to cope with the ever-expanding drug laws. Id. at 180. The only available waiver for drug inadmissibility was, and remains, for simple possession of 30 grams or less of marijuana.
In the next section, Morawetz traces out the implications of the inflexible drug admissibility rules. Morawetz first notes that the bar does not simply affect noncitizens who are seeking to enter the country. It also affects many people who are already here and have deep ties to the United States, including those who are seeking to adjust from a temporary visa to a permanent immigrant visa (a green card), and those who are otherwise eligible for relief from removal because of longstanding ties to the country. As previously noted, the bar is also embedded in proposals for legalizing the undocumented.
Morawetz then notes that while the legal changes would be merely academic in the absence of serious enforcement “there are many signs that the drug inadmissibility ground is being applied expansively and that the government has begun to train officers to actively seek out admissions of past wrongdoing that can then be used to exclude or deport the unwary.” Id. at 184. Her discussion of the interrogation tactics encouraged by Federal Law Enforcement Training Center materials highlights the fundamental problem that arises in the context of immigration questioning, where many of the procedural tools used to curb constitutional violations by law enforcement do not apply. Morawetz warns of an increased likelihood of arbitrary law enforcement and racial profiling—a danger that she argues will be magnified by the increasing participation of local law enforcement in immigration enforcement. Finally, Morawetz notes that changes in substantive criminal laws (which have been expanded in many jurisdictions to facilitate drug convictions) and criminal procedure (which has been fundamentally retooled to facilitate the war on drugs) have generated a situation where “drug inadmissibility grounds will be easier to prove in a greater number of cases for noncitizens who have lived in the United States in some capacity.” Id. at 192.
Morawetz argues that the time is ripe for legislative reform of drug inadmissibility rules “because they are counterproductive, allow for arbitrary enforcement of the law, and are totally out of proportion to legitimate interests.” Id. at 193. Her article provides a persuasive case for these claims. She also includes a list of three specific technical fixes that would go a long way toward rationalizing the drug admissibility bar. Alternatively, she proposes the formation of a commission charged with proposing reforms to inadmissibility grounds in a context less highly politicized than that which has historically constrained Congressional action on this issue.
Dec 17, 2009 Susan Bandes
Criminal procedure and criminology have developed along oddly parallel tracks. Criminal procedure is rights-based and court-centric. It cares about policing and crime control not as subjects in their own right, but as objects of constitutional limitation. The field implicates the regulation of police behavior, but has traditionally paid little attention to police attitudes or police organizational culture. It implicates crime control, but has paid little attention to the social, political and cultural context in which the criminal process unfolds. This focus seems increasingly myopic. Most of the promising innovations in police reform and crime control have little to do with judicial enforcement of constitutional rights.
It’s been almost two decades since Robert Weisberg’s memorable skewering of criminal procedure scholars for failing to engage social science in general and criminology in particular. Robert Weisberg, Criminal Law, Criminology, and the Small World of Legal Scholars, 63 U. Colo. L. Rev. 521 (1992). More recently, David Sklansky, in his important article on democracy and policing, made a similar charge. David Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699 (2005). The situation has been improving. An increasing number of criminal procedure scholars are investigating crime’s social context (for example Jonathan Simon and Bernard Harcourt), conducting their own empirical work (for example Dan Kahan, Tracey Meares and Jeffrey Fagan), or paying close attention to empirical evidence on issues like false confessions or suggestive lineups.
Eric Miller’s terrific article Putting the Practice into Theory agrees with both Weisberg and Sklansky that criminal procedure needs to engage more seriously with criminology. His unique contribution is his argument that criminology is not merely ignored or misconstrued. The problem he identifies is that criminal procedure doctrines are often premised on unstated criminological assumptions about policing and crime. These assumptions tend to be sheer speculation, and yet they are often outcome-determinative.
Take the exclusionary rule, which is by any account a core concern (Weisberg called it a fetish) of criminal procedure. The discussion about the rule and its exceptions is rife with unsupported assumptions about what deters cops and whether magistrates are deterrable. This omission is problematic in its own right. But the greater omission is the failure to investigate the impact of the exclusionary rule at the organizational level. When the Court finally turns to this question, in Hudson v. Michigan, 547 U. S. 586 (2006), it is to declare that the exclusionary rule’s work is now done. The Court assumes that the rule is rapidly outliving its usefulness, given the increased professionalism of modern police forces, the improvement in internal police discipline, and the increased availability of alternative remedies, including citizen review.
The Court, in Miller’s words, “thus stakes its regulatory regime upon a criminological claim about the institutional structure of the police, and police training.” Miller, supra, at 64. It refers to criminological literature, but in a “slapdash” manner. Miller, supra, at 65. It provides no evidence for its empirical assertion that citizen review enhances police accountability. And in a notorious misstep, the Court relies on the work of criminologist Samuel Walker to support its argument that increased police professionalism renders the rule obsolete, though Walker himself credits the rule itself for increasing police professionalism.
Criminal procedure is built around certain well-trod tensions: bright lines rules versus particularized decision-making; the primacy of the warrant versus the primacy of reasonableness; judicially-created remedies like the exclusionary rule and Miranda warnings versus various alternatives. Miller demonstrates that regulatory questions lurk behind these debates. Should regulatory standards be uniform or discretionary? What types of screening or monitoring work best? At what stage(s) should screening or monitoring for compliance with standards take place? What actors or institutions are best suited to monitor compliance? Miller, supra, at 38. He argues that rather than confront these regulatory questions head-on, standard criminal procedure discourse simply assumes that police institutional structure takes a certain form. Miller, supra, at 50.
For example, Miller argues that the familiar debate between bright line rules and particularized decision-making ought to be part of (or at least informed by) a broader regulatory debate. Is a top-down, managerial model of police regulation preferable to a model that encourages street-level cops to develop policy based on their experience and pragmatic good sense? For Miller, the problem with a bright line rule case like New York v. Belton, 453 U.S. 454 (1981), is that it assumes the existence of a managerial model in which top brass generate clear rules that effectively guide street-level cops. It never actually investigates whether the model is in place, and if so, how well it works. The problem arises when the discourse—judicial or scholarly—simply shifts between models without acknowledging or evaluating their underlying criminological assumptions.
Miller’s article is part of a stellar new symposium issue on the question “What Criminal Law and Procedure Can Learn from Criminology,” edited by David Harris and Joshua Dressler, and with articles by Harris, Eric Luna, Richard Leo and Jon Gould. The whole symposium is a must-read. Miller’s article adds a critical dimension. It’s a reminder that criminological assumptions will permeate criminal procedure whether or not criminology is taken seriously. The choice is whether to speculate and assume, or to bridge the disciplinary divide.
Dec 3, 2009 Gabriel "Jack" Chin
David Alan Sklansky,
One Train May Hide Another: Katz
, Stonewall, and the Secret Subtext of Criminal Procedure, 41
U.C. Davis L. Rev. 875 (2008).
David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967). Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment. The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today. Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.
Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself. Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths. The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls. Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision.
Remarkably, the phrase “reasonable expectation of privacy” originated in arguments that the police should not spy on men in bathroom stalls. In a 1966 special project, the UCLA Law Review published an empirical study of arrests for consensual sodomy in California. More than half “were made in public restrooms. Most were for sexual conduct directly witnessed by the arresting officers, typically, it seems, from hidden observation posts.” Sklansky, supra, at 887. The study criticized toilet surveillance, arguing “that the Fourth Amendment should protect ‘reasonable expectations of privacy’ in ‘semi-public places.’” Id. at 894.
The study built on ongoing litigation in California employing the same phraseology. In 1962, a pair of California Supreme Court decisions held that the police could not observe people in closed bathroom stalls from hidden vantage points. In a case involving Park Rangers observing men in bathrooms at Yosemite, the Ninth Circuit disagreed. Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981 (1966). However, Judge Browning’s dissent contended that the evidence had to be suppressed because defendants had a “reasonable expectation of partial privacy.” Id. at 260.
The UCLA report was noticed; for example, Look Magazine discussed it in a 1967 an article on “The sad ’gay’ life.” Similarly, while the Court ultimately denied certiorari in Smayda in spite of the conflicting decisions, Sklansky shows that it was not a routine rejection. Justice Douglas voted to take the case, and clerks for Clark and Warren also recommended a grant. Not coincidentally, the Chief’s clerk had been editor in chief of the UCLA Law Review when the study was being prepared.
Sklansky does not claim to have proved the phrase “reasonable expectation of privacy” came directly from jurisprudence involving gay men. However, he makes a compelling argument that it could have. He also points out that if Katz was not revolutionary in other areas, it did change toilet surveillance: “courts in a range of jurisdictions read Katz to provide Fourth Amendment Protection at least in enclosed toilet stalls. In doing so, they generally stressed precisely that aspect of the Katz opinions that scholars have treated as a red herring: Justice Harlan’s description of a telephone booth as a ‘temporarily private place’” Sklansky, supra, at 893.
This begs the question of why the Court would do such a thing. The Court was not broadly sympathetic to the rights of gay men and lesbians. Indeed, in Boutilier v. INS, 387 U.S. 118, 124 (1967), six justices were untroubled by a cruel statute excluding from the United States all immigrants “afflicted with homosexuality.” But perhaps gay people were like ex-Communists, whose repression, however tolerable in principle, had to be controlled lest unchecked enforcement destroy the lives of innocent people.
This part of the story begins with the 1950s “Lavender Scare”, a purge of gay people from federal employment as security risks susceptible to blackmail; “as many as 5,000 may have lost their jobs.” Sklansky, supra, at 906. “[T]he Lavender Scare quickly spread outward from investigations of government officials to embrace many other sectors of American life.” Id. at 907. Police around the country invested more resources in discovery and prosecution of gay men.
Sklansky draws on several forms of evidence suggesting that establishment opinion thought criminal suppression of gay activity went too far. In Kelly v. United States, 194 F.2d 150 (D.C. Cir. 1952), the court through Judge Prettyman reversed a conviction of solicitation for oral sodomy, explicitly reasoning that the charge was grave, yet easily falsifiable and could be preferred against ordinary, innocent citizens. A single police officer’s claim to have been propositioned, the court held, was insufficient to prove guilt. Another telling cultural artifact was Advise and Consent, a bestselling book, play and then hit film about Washington politics which included the tale of a Senator “driven to suicide by the politically motivated disclosure of a brief homosexual affair he had had during World War II.” Sklansky, supra, at 909. In the end, criminal enforcement of consensual sodomy became disfavored in the Model Penal Code, for example, because corruption of the criminal justice system and the associated invasions of privacy outweighed the cost, not because on principle gay people were entitled to live their lives without being charged with crimes.
Of course, no one will be surprised that the Court is influenced by considerations that do not appear in their opinions. But this tale of how legal change actually occurred will intrigue students of the Court and inspire further examination of the complicated interaction of doctrine and culture.
Nov 5, 2009 Donna Coker
Deborah Weissman has made an important contribution to the debate in domestic violence and criminal justice scholarship regarding the current focus on criminal justice system responses to domestic violence. Her article seems particularly timely in light of the current economic crisis.
A number of legal scholars have criticized US domestic violence policy for its singular focus on criminal law narratives and criminal justice responses. This focus obscures the social and economic forces that increase the incidence of domestic violence and that magnify women’s vulnerability to violence. Further, mandatory arrest and no drop prosecution policies enacted in many jurisdictions have negative secondary effects for some victims and, in the case of unemployed batterers, may actually increase recidivism rates.
Weissman agrees with these criticisms, but goes a step further. She argues that what we need is a new paradigm—one that replaces a focus on criminal justice responses as the primary public response to domestic violence. This paradigm shift requires us to recognize that economic hardships can create the fertile ground for the occurrence of domestic violence. Weissman has in her sights, in particular, the massive changes in the lives of U.S. workers resulting from what is commonly referred to as “globalization.”
Weissman writes: “Structural economic dislocation, outsourcing, and plant closings (and in their wake chronic under- and unemployment, declining wages, diminishing benefits, and disappearing pensions), all hallmark features of globalization, have wrought havoc on communities across the United States.” 2007 B.Y.U. L. Rev. 387, 388 (2008). According to a number of studies she cites, this havoc includes increased rates of domestic violence.
Large plant closing in the 1990s precipitated a downward spiral of further business closings, diminished social services as tax revenues declined, high rates of foreclosures, and declining populations. Even when jobs were replaced, the community was left with a feeling of deep economic insecurity. Wages and benefits declined.
Widespread unemployment and community social disorganization weaken social controls. Rates of alcoholism, drug abuse, and vandalism increase, as do rates of domestic violence. Unemployment and economic uncertainty are correlated with increases in mental health problems such as anxiety disorders, insomnia, headaches, and stomach ailments; an increase in alcoholism and drug abuse; and a substantial increase in mental hospital admissions.
Men and women may experience the meaning of unemployment differently. “The very understanding of masculinity is linked with a man’s ability to provide for his family.” Id. at 425. Changes in the gender division of labor within households may also contribute to the occurrence of domestic violence. “Patriarchal hierarchies that may no longer be transacted through performance of socially constructed [gender] roles in the economic realm may be exercised in self-destructive behaviors and abusive conduct in the home.” Id. at 428-429.
Weissman does not argue for decriminalization of domestic violence, nor does she argue that economic stress should become an excuse—in either the doctrinal or the vernacular sense—for domestic violence. Rather, she argues that domestic violence activists should make common cause with unions and other activists who are struggling to retain jobs, improve working conditions, and foster economic development. Sentencing and abuser treatment should include assistance with job and economic resources. Restorative justice and progressive community policing programs that link individuals to services may assist in preventing future violence. Funding for battered women’s services should include assistance with employment and skills.
Weissman’s is an ecological account. She moves the unit of analysis away from individuals as well as away from generalized gender hierarchy to the specifics of neighborhoods. What distinguishes her approach from that of other sociological accounts of criminal offending is her audience. (Jeffrey Fagan and Tracey Meares provide particularly well-drawn accounts of the link between neighborhood disorganization, harsh law enforcement, and high crime rates. See Jeffrey Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox in Minority Communities, 6 Ohio St. J. Crim. L. 173 (2008).) She is speaking primarily to activists—domestic violence activists, union leadership, and community organizers.
The current economic crisis makes Weissman’s analysis more critical than ever. Unemployment rates are soaring in communities that were already suffering before the current crisis. African-American communities have been particularly hard hit by the one-two punch of the foreclosure crisis and high unemployment. The “tough-on-crime” 1980s and 1990s fostered—indeed, demanded—that domestic violence policy be focused in the criminal justice system. Have times changed? If ever there was a time to focus policy and activism on the link between increases in domestic violence and economic stress, that time is now.
Oct 27, 2009 Jonathan Simon
Gregory J. O’Meara, S.J., The Name is the Same, But the Facts Have been Changed to Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42 Val. U. L. Rev. 687 (2008).
Gregory J. O’Meara, S.J., an Assistant Professor at Marquette University Law School, has written a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules that is likely to escape the attention of many criminal law teachers and practitioners who would benefit from it. On the surface it purports to be a careful doctrinal analysis of the Supreme Court’s hidden expansion of the ineffective assistance of counsel doctrine, in defiance of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA), 28 U.S.C. Sec. 2254(d) (2008), prohibition on even the Supreme Court using Habeas cases to make new legal rules. From Strickland v. Washington, 466 U.S. 668 (1984), to the most recent cases, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005), O’Meara shows that the Court continues to express loyalty to the logic of the Strickland rule. However, when the analysis is extended to the facts of recent cases, O’Meara shows convincingly that the Court has found relevant facts explicitly treated as irrelevant in Strickland. Readers who get a bit farther in discover that the article is also a rather copious introduction to the late continental philosopher and theorist of narrative, Paul Ricoeur. Unfortunately, neither of these highly technical subjects is likely to attract the general teacher or practitioner of criminal law, but this is precisely who should read the article.
Indeed, the discussion of AEDPA, as important as it is for capital lawyers, is really only a case study of a very important argument about the role of factual construction in legal change. Drawing on the work of Anthony Amsterdam and Jerome Brunner, Minding the Law (2000), O’Meara sets out to convince lawyers of something many practitioners appreciate but which law students (and teachers) strenuously resist, i.e., the idea that facts rather than law are primary craft of legal advocacy (or judicial construction). As O’Meara compelling demonstrates with the Strickland line of cases is that rigid controls on law leave judges free to change norms by expanding their vision of relevant facts. There are parallels with Mark Kelman’s classic article Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1982). Kelman identified a number of techniques by which courts routinely rework facts, for example, time framing which stretches or shrinks the time frame in which the defendant’s actions are considered. In this article, O’Meara reaches into the formidable and largely legally unplumbed depths of the late philosopher Paul Ricoeur, to develop a systematic analysis of how facts get changed. Ricoeur analyzes the work of non-fiction writers as a three stage process. The first stage is one of “documentation” in which a factual archive established. The second stage is one of explanation, in which certain facts from this archive are selected. In this process, a key dimension is the “scale” in which facts are framed. Since scale in narrative can be subtle (unlike in architecture or engineering), narratives can be significantly shifted by resetting the scale (or density) with which facts are explained. The third phase, that of narration, is where the scaled array of facts are connected with a set of “because” clauses which weave a causal story into them. While many legal scholars influenced by Robert Cover have attended to the importance of narration, few have noticed the earlier work of scale setting which largely determines the range of causal explanations that will seem relevant. By bringing out this missing dimension of narrative work, O’Meara has advanced a systematic understanding of fact exegesis in law.
For Ricoeur, history epitomizes non-fiction narrative. While the fiction writer is held only to aesthetic judgments, the non-fiction writer is accountable to public debate on the adequacy of her account to the common understanding. Drawing on this fascinating exegesis O’Meara analogizes lawyers (judges and legal scholars as well) to historians, obliged to provide the history of singular moment (an act or a lower court decision). According to Ricoeur, the historian’s can reinterpret a common history by varying the density with which the facts of a particular event are sampled and presented in a narrative to change the meaning of a historical sequence. According to O’Meara, the lawyer (judge, scholar) changes precedent by varying the density with which the facts of a case are represented in a brief or an opinion. He then applies this model to show how the Court’s legal fealty to Strickland by varying the “density” with which the facts of a particular case are presented. O’Meara’s application of this analysis to the recent ineffective assistance cases is compelling. But the analogy is worth independent development. While historians generally focus on scales of decades, like 19th century Russia, or France during the Revolution, lawyers and judges find themselves confronted with more micro-level events; e.g., a homicide, or a police interrogation. Yet once the differences in scale are noted, the problems of method are strikingly similar. Both are primarily focused on developing a body of largely textual but sometimes live witness information into a workable archive. Both need to make selections of which facts to present (it is an illuminating game to simply compare the facts in majority and dissenting opinions in the same case). Both ultimately need to weave a causal story through the selected facts. In portraying lawyers and judges as historians, O’Meara reminds us of the enduring ambiguities that afflict both fields and provide the resource for change.
This is also a way of recasting the early 20th century legal realist project and the article does a wonderful job of reviewing some of the central ideas and protagonists of the realist movement as anticipatory of the narrative/cognitive approach O’Meara is extending as much as of the empirical social science to which it often compared itself.
Cite as: Jonathan Simon,
Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction, JOTWELL
(October 27, 2009) (reviewing Gregory J. O’Meara, S.J.,
The Name is the Same, But the Facts Have been Changed to Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42
Val. U. L. Rev. 687 (2008)),
https://crim.jotwell.com/historians-of-the-singular-lawyers-judges-and-the-work-of-factual-construction/.
Oct 26, 2009 Michael Froomkin
Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Donna K. Coker
University of Miami School of Law
Professor Jonathan Simon
Associate Dean, Jurisprudence and Social Policy Program
Faculty Co-Chair, Berkeley Center for Criminal Justice
University of California, Berkeley School of Law, Boalt Hall
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Susan A. Bandes
Distinguished Research Professor of Law at DePaul University College of Law
Professor Mario Barnes
University of California, Irvine School of Law
Professor Jennifer Chacón
University of California, Davis School of Law
Professor Gabriel J. (Jack) Chin
Chester H. Smith Professor of Law, Professor of Public Administration and Policy, & Co-Director, Program in Criminal Law and Policy
Professor Margareth Etienne
University of Illinois College of Law
Professor Mary D. Fan
American University, Washington College of Law
Professor Aya Gruber
University of Iowa, College of Law
Professor Angela P. Harris
Executive Committee Member of the Center for Social Justice,
University of California Berkeley School of Law, Boalt Hall
Professor Elizabeth E. Joh
University of California, Davis, School of Law
Professor Orin S. Kerr
The George Washington University Law School
Professor Dan Markel
D’Alemberte Professor, Florida State University College of Law
Professor G. Kristian Miccio
University of Denver, Sturm College of Law
Professor Christopher Slobogin
Milton Underwood Professor of Law, Vanderbilt University Law School
Oct 25, 2009 Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve.
Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.
Ordinarily, a Jotwell contribution will
- be between 500-1000 words;
- focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
- begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.
Initially, Jotwell particularly seeks contributions relating to:
We intend to add more sections in the coming months.
References
Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.
- Please keep citations to a minimum.
- Please include a hyperlink, if possible, to any works referenced.
- Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
- Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.
Technical
Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.
Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to ed.jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.
Oct 19, 2009 Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.
Tell us what we ought to read!
How It Works
Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.
For the legal omnivore, the ‘front page’ at Jotwell.com will contain the first part of every essay appearing elsewhere on the site. Links will take you to the full version in the individual sections. There, articles will be open to comments from readers.
The Details
Learn more about Jotwell:
