Category: Legal Ethics


Torture for Tots

Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.


Measuring Justice(s) in Louisiana

An article in today’s New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer – a comparative law scholar – had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.

Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court’s justices and relevant case outcomes.

Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:

Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .

Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

Not having seen the article itself, it’s hard to evaluate the quality of the authors’ empirics. If they’re even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.


More Things Not to Do in Court

A weekend treat:

A Rowan County District Court judge held a local attorney in contempt Wednesday for reading a men’s magazine during a court session, according to a contempt order filed in the Rowan County Clerk of Court’s Office.

Judge Kevin Eddinger found Salisbury attorney Todd Paris in contempt after he saw him reading a Maxim magazine with “a female topless model” on the cover, according to the order.

When Eddinger gave Paris a chance to respond he apologized and “stated in his view the magazine was not pornography, was available at local stores and that he did not intend contempt,” the order said.

Eddinger fined Paris $300, gave him a 15 day suspended jail sentence that remains in effect for a year and placed him on unsupervised probation, according to the order.

Although I can understand the judge’s ire, this seems like an overreaction to me. Is Maxim really so shocking so as to:

“interrupt[] the proceedings of the court and impaired the respect due its authority. In addition, the contemnor’s actions were grossly inappropriate, patently offensive, and violative of Rule 12 of the General Rules of Practice. Courtroom staff, law enforcement, members of the Bar and the general public shall be able to conduct courtroom business in an atmosphere free of the display of offensive material as demonstrated by the contemnor, thus necessitating this action.”


Bringing a Lawyer to a Gun Fight

englishlawyer.pngTonight, I was reading “Why I am Not a Lawyer,” in Joseph Epstein’s In a Cardboard Belt!. Epstein wonders about the decline and fall of the American lawyer.

“[How did they go from] America’s natural aristocrats, from an almost priestly cast, to figures an increasingly large share of the population look upon as, chiefly, dangerously expensive to do business with, hopelessly pugnacious, and people for whom life is much better when they play no part in it. Something has happened to the practice of law over the past fifty years to cause it to lose its grandeur, and, in many quarters, even its dignity. To allow that one is a lawyer nowadays even gain[s] you the automatic contempt of strangers.”

How did this happen? Epstein suggests that we’ve lost some of our well-roundedness – he refers to Oliver Wendell Holmes Jr. as a shining model of the past. Holmes was “tremendously well rounded” “splendidly well read in all realms of civilized interest” and could “doubtless have served in the Department of Philosophy at Harvard with his friend William James.” (Heller ignores Holmes’ cold dislike for actual people.) Today, (Heller alleges by contrast) lawyers are “businessmen, entrepreneurs, operators, hustlers….”; they lack virtue because they are seen to be partisan; they lack loyalty because the have monetized their partnerships; and the law has lost “its old and grand mystique . . . it is [instead] business, an efficient form of moneymaking and not much more.”

There’s quite a bit here. But it’s worth starting with the observation – made in the context of today’s political debates – that politicians too are castigated for being partisan, but most risk-averse voters chose candidates who can withstand such fights with more ease. As a commentator on Talking Points Memo wrote (in evaluating the Clinton/Obama choice):

“I’m reminded of people who hate lawyers because they’re too contentious and sleazy and aggressive — but when they get sued, they insist on getting the meanest bull dog of a lawyer they can find.”

That is, in the old days, lawyers were gentlemanly, courteous, learned, but probably something less than zealous advocates for their clients. Lawyers today offer better – more sophisticated, thoroughly researched, and nuanced – arguments than lawyers in the past; their deals are more carefully worded. We’ve lost the public good of the Bar’s reputation, but we’ve (probably) improved client service. Or to put it most provocatively, I’d prefer to hire a team of attorneys at a mid-sized legal firm to the brilliance of Holmes or Brandeis. They’d work harder.

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An Ethics Puzzle

My friend and Suffolk colleague Andy Perlman has a neat little question in ethics and morals over at Legal Ethics Forum. I recommend it heartily. (Personally, I think this is an easy application of the Categorical Imperative, but decide for yourself!) But while you are over there, ignore the crass pandering for votes, and if by some chance you do click through to the ballot for best blog in the “Lawyers Behaving Badly” category, think about how much your support would mean to my Legal Profession Blog colleagues, Alan Childress and Mike Frisch.


Bootstrapping Against Capital Punishment

Bootstrap_1.jpgWe’ve been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.

Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, “states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.” Doug sums up:

Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.

My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy’s continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.

Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn’t have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren’t a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that “Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.” Well, no kidding!

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

(Image source: Wikicommons)


Judicial Bullies on T.V.

David Lat highlights the following video, featuring an encounter between a faux judge (former Florida Circuit Court Judge Marilyn Milian, now the private dispute resolution “judge” on the People’s Court) and a faux lawyer (a current Miami Law student). I know that this is supposed to be entertainment, but I’ve got to say, it felt like a case study in Steven Lubet’s Bullying From the Bench. Judicial temperament means never having to say you are sorry, but only because you don’t flip out on the parties before you.

Now that you are finished watching the bullying (I knew you couldn’t help yourself) click through to Lat’s thread, where the commentators have a really interesting discussion going on.


New Summer Program

This is an exceptional new summer law study program open to both law students and interested law professors. Summer Study in Italy, will take place from June 6- July 21 2008. Three weeks in Rome follow by three weeks in Florence. Students will be lectured by Professor Chadsworth Osborne, Jr., and Hugo Valencia, and several esteemed representatives of the Italian legal system — such that it is. Six hours of credit available from a choice of 4 courses. Groups outings will be arranged to important and historic sites. All inclusive tuition is $3000. This includes housing but not airfare and meals. However, the airfare should be highly discounted as you do not actually have to travel to Italy to participate. Video transmissions will include classes, meals, and all outings so you will be able to absorb the beauties of Italy while at home. Why eat at Italian McDonalds when the program permits you to stay at home and eat at your local McDonalds or any other restaurant of your choice. The program fillled quickly last year and was a huge success. Applications are found at Privilegelaw. See you in Roma!!


Is Sorting Law School’s Only Function?

17402.jpgBainbridge and others are abuzz over Rush and Matsuo’s paper, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of the Factors Which Were Related to Bar Examination Passage between 2001 and 2006 at a Midwestern Law School. The paper reports that simply taking “bar courses” generally does not improve performance on the Bar Exam.

The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense. I’d bet that a large minority of all law professors, and a majority of law professors hired since 1990, haven’t sat for the Bar in the jurisdiction hosting their law school. It would be surprising if teaching behind this veil of ignorance could significantly improve test scores for marginal students. You can’t teach to a test you haven’t seen.

But if that’s true, two questions come to mind. The first has been addressed by some commentators already, and boils down to: if not bar courses, what courses should law students take? Josh Wright responds: antitrust! Sam Kamin disagrees: professors you like! As for me, I offered the following comments in a package of diverse suggestions on this topic from my colleagues distributed to our first year students at the end of the Spring term:

I recommend that you select courses that are challenging and intrinsically interesting. This means tailoring course selection to your abilities (take a tax course, especially if you are afraid of math); and interests (recall what made you excited about the Law before coming here). The data I have seen do not correlate Bar passage with any particular package of courses, but rather with your overall performance and work ethic. Certain employers may expect to see foundational courses like corporations and evidence on your transcript, but I believe those expectations are the exception rather than the rule. The bottom line: take classes that will make you want to come to school in the morning.

Maybe such advice is helpful, maybe not. But regardless, it doesn’t answer the big (second) question, which is this: is there a point to law school beyond sorting students?

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Shunning Duke’s Faculty

listening_statement_p.jpgA little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?