Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten

In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence – and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?

Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for “pre-emptive abortion” of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues – so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the “inncoent” fetus and the “guilty” murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I’m merely questioning how one can call the killing of the adult any more or less “retributive” than the abortion, if the factor that created culpability – say, a mental illness – existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender’s free will.

The obvious retort to all of this is that the criminal law does not allow execution – or even conviction – of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M’Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will – the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably – must not that abortion opponent exclude from execution any person who cannot control his act?


The Digital Person: Now in Paperback

digital-person-1.jpgI’m pleased to announce that my book, The Digital Person: Technology and Privacy in the Information Age, is now out in paperback and has a much more affordable price. From the cover blurb:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Links to reviews of the book are at The Digital Person website.


KPMG: A Contracts Cornucopia

A few weeks ago, Judge Kaplan of the SDNY denied KPMG’s motion to dismiss the KPMG defendants’ complaint against it for indemnification of the defendants’ legal fees. (See coverage at TaxProf, and for background, my previous post.)

The opinion is really fascinating. Although I disagree with parts of Judge Kaplan’s analysis, I think it will ultimately come to be seen as a paradigmatic modern contract case, and classic casebook fodder.

I’ll assume your background with the underlying facts, and jump right back in where we left off. Why is the opinion worth casebooking?

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Compulsory Education At Age 8

Today I attended an ABA Roundtable session on children at risk. The discussion was led by Karen Mathis, president of the association. One of the most remarkable facts that surfaced during this conversation was that, each year, 3000 kids don’t start in the Philadelphia school system until age 8. Apparently only Pennsylvania, and one other state, begin compulsory education at such a late date. As one can imagine, many of these 8 year olds start first grade at a huge disadvantage compared to kids who entered school at age 3 or 4. While these aged youth may be lagging educationally, they’re physically out of place as well. Compared to the 5 and 6 year olds, the older children are sometimes massive. And that physical gap explodes around the time these children are in 6th grade (at age 14.) As a result of the behavioral difficulties that follow, many kids in this cohort drop out – at age 16 or 17- while they’re still in middle school.

I found this state of affairs both surprising and sad. With all the other challenges we have focusing kids on education, who knew that we were failing at this most fundamental level: the minimum age for compulsory education?


More on the Origins of the Footnote Fetish

A few weeks ago, I blogged on my theory of the legal footnote fetish, arguing that it arose out of the reliance of American lawyers on American editions of English treatises where the most important material was in the footnotes. Today, while doing research on another project, I came across additional evidence in support of my theory. S.M. Phillipps’s Treatise on the Law of Evidence was published in England in 1815. (There had been earlier English editions.) A year later, John A. Dunlap published an American edition to the treatise. In his introduction, Dunlap discussed — of course — his footnotes:

The design of the editor was, principally, to collect the decisions of the different courts in the United States, connected with the subject of the following work, the undoubted merit of which justly entitles it to a preference to all former treatises on the law of evidence. The exuberance of the subject itself, and a solicitude to insert every thing which could be deemed useful, have swelled the notes greatly beyond what was originally expected and intended: and yet the learned reader will perceive tha they might have been made still more extensive; that much has beeen omitted by design, and much, no doubt, through inadvertence.

My claim is that law review editors inherited from this tradition of Americanizing English treatises the same “solicitude to insert every thing which could be deemed useful” no matter how much it might “swell[] the notes greatly beyond what was originally expected and intended”.


The Declining Value of Elite Universities?

This paper, by Kim, Morse, and Zingales, looks interesting:

We study the location-specific component in research productivity of economics and finance faculty who have ever been affiliated with the top 25 universities in the last three decades. We find that there was a positive effect of being affiliated with an elite university in the 1970s; this effect weakened in the 1980s and disappeared in the 1990s. We decompose this university fixed effect and find that its decline is due to the reduced importance of physical access to productive research colleagues. We also find that salaries increased the most where the estimated externality dropped the most, consistent with the hypothesis that the de-localization of this externality makes it more difficult for universities to appropriate any rent. Our results shed some light on the potential effects of the internet revolution on knowledge-based industries.

Related Links:

Hoffman, Becker, Posner and the Purpose of the University

Posner, Summers’ Resignation and Organization Theory

Ribstein, Who owns universities?

Zittrain, Universities as Companies


Should Female Legal Academics Blog?

In Yale Pocket Part, two new essays raise the question of whether women in legal academics should spend time blogging. Only one of the essays discusses this question explicity — Rosa Brooks in her candid and thoughtful What the Internet Age Means for Female Scholars? However, for women academics deciding whether to blog, I think the other essay, Brian Leiter, Why Blogs are Bad for Legal Scholarship may also be a must read.

In her essay, Brooks describes gendered challenges to academic success. The most salient is the time many women spend engaging in caretaking and housework — to the detriment of scholarship. The fact that women are often more pressed for time than men might suggest that valuable time should not be spent blogging. (Why am I not finishing the paper I am working on right now instead of musing about blogging!?)

However, Brooks also notes that not only must legal academics write great scholarship, they also have to ensure that their scholarship is read and noticed. Typically, conferences, colloquia, and visiting semesters are the best ways to promote scholarship. More women than men are also hampered here by family obligations or working spouses who are unwilling to uproot themselves for cross-country semesters or years. So, Brooks suggests, the internet provides a convenient way to advance own’s ideas and name. Though she observes that blog culture can be hostile to women and overly testosterone driven, Brooks seems cautiously optomistic that the internet and blogging might prove quite useful to women:

I can think of several younger scholars—including some women—whose careers have clearly been helped by blogging and commenting on blogs, activities that have gotten them noticed by people who then go on to read and be impressed by their more “serious” work. It’s too soon to say, but I suspect that the Internet age may gradually help eliminate the practice of making visits a predicate of lateral faculty offers. To the extent that blogging can help people get to know a scholar’s style of thinking, why put everyone to the trouble and expense of term- and year-long visits?

Enter Brian Leiter. Leiter appears hostile to blogs as means for those not already recognized as legal superstars to promote their ideas. He says so quite explicity:

[M]y sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.

It seems therefore, that Leiter (and any who agree with him) will give little credence to ideas posted in the blogosphere unless an already established legal superstar (those with pre-Internet gravitas) provides an introduction or some other sort of cover. Now, I presume Leiter would respond that he is not arguing that an idea or theory is mediocre simply because it is advanced by someone not already known by the heavy weights of the legal academy. However, the challenge for those not already in the club is to find vehicles for their work to be read. Once it is read, hopefully it will be judged on its merits. If Leiter’s view is widely shared, blogs will not prove useful alternatives to conferences or visits.

So –for women deciding whether to spend precious time blogging, the big question appears to be whether Leiter’s view will prevail.


The Strategic Use Of The Death Penalty

A BBC Newshour report, this morning (autdio link) suggests that Indonesia’s decision to execute three Christians yesterday, for their role in a 1998 Christian-Muslim conflict, might have been strategic. For example, there are several Muslims on death row for the Bali bombing. And other Muslims are facing trial, and potentially the death penalty, for the same Sulewesian rioting that gave rise to yesterday’s executions. The commentators suggested that in order for the Muslim government to execute Muslims, it may have been strategically wise to execute the Christians first.

This may be a cynical use of death, but I wonder whether some states have run similar calculations. African-Americans are disparately represented on American death rows, vis a vis their percentage of the overall population. The race critique of capital punishment has had a fair degree of traction (compared, at least, to many other criticisms.) Do some jurisdictions attempt to protect their capital scheme from such attacks by executing whites at a faster rate than African-Americans, notwithstanding the overall demographic of death row? In Alabama, for example, from 1999-2005, across two gubernatorial administrations, 12 of 17 people executed were white. And from 2002-2005, all eleven people executed were white. This in a state where almost half of death row is populated by African-Americans. I recognize that each case proceeds at its own pace – to some degree – but I’m curious whether the goal of legitimizing capital punishment ever plays into the decisions of which individuals a state seeks to execute first. (And yes, I do think it’s worth noting that at this final stage, there might actually be an anti-white bias in imposition of the sanction, notwithstanding my suspicion that – at earlier stages – the bias seems to cut the opposite way.)

This is not an accusation. I don’t have any answers. I’m simply curious about the degree to which all decisions about the death penalty – from charging all the way to seeking a warrant – might be driven by the needs of external legitimacy, rather than by broader moral, or narrower individualized, concerns.


In House Counsel And The Selection Of Law Firms

Over at What About Clients, Dan Hull wonders whether an overwhelming portion of large corporation legal work could be handled as well by small boutiques as by the mega firms that typically garner such business. Quoting Paul Clifford, a law firm consultant, he suggests that only 10% of these clients’ work qualifies as “bet-the-firm” material – matters that you cannot trust to anyone but the biggest and most sophisticated shop. The rest, he hopes, is up for grabs.

Dan poses the question in terms of quality: can small firms handle sophisticated corporate matters on par with the biggies. The answer is clearly yes. Excluding particular cases – not only bet-the-firm matters, but ones that require serious resources due to size or speed – I imagine that high quality mid-size and boutiques have the capacity to do much work that currently lands in large firms. The question, then, is why the big firms so often get this business. There are lots of reasons, but in many cases they start here: the in-house counsel.

What motivates the work distribution decisions of in-house counsel? They are supposed to maximize the quality of outcomes in cases. And they have to stick to a budget. When a case is really important, fidelity to both the company and their own personal buttocks requires bringing in a top-flight firm. In lesser cases, one might expect counsel to be more cost conscious – and thus more open to smaller firms. But two factors cut the other way. First, if the attorney came from a big firm – as so many in-house counsel do – he or she may have personal connections that bias the decision. These connections aren’t just friendly; in some cases an attorney is looking to maintain the option of returning to the private sector. In addition, in certain cases – particularly ones that he or she sees as losers – counsel may be motivated to send the case to a pricier shop simply so that he or she can say “we lost, but it wasn’t my fault. I sent it Cravath.”

So a small firm looking to lasso corporate business needs competitive pricing. But because the hiring process is driven not only by price and corporate risk, but also by personal concerns of in-house counsel, small firms will always have more difficulty piercing the corporate market. That may not be best for business, but it certainly conforms to human nature.


Mental Illness And The Death Penalty

The ABA’s Florida death penalty assessment team, headed up by Chris Slobogin of the University of Florida, has released its report on the state’s capital scheme. Unlike the Alabama team, this group did not endorse a moratorium in the state. It did, however, raise a number of concerns including (among others): the large number of exonerations, inadequate compensation for conflict counsel, racial and geographic disparities, and the large number of people with mental disability on death row.

Although we did not address this at length in the Alabama report, my experience suggests that a shocking portion of people on death row have some mental illness. I suspect that many people would be troubled to learn the degree to which death rows warehouse people with mental disabilities. There has been relatively little empirical work on this question, though a recent study prepared by the U.S. Department of Justice, Bureau of Justice Statistics, showed that 55% of male inmates in state prisons, and 44% of men in federal pens, have mental health problems. I feel pretty confident that death row inmates ore no less than typical on this front, and probably disproportionately evidence mental health problems. It is possible that these problems are the product of imprisonment itself – SuperMax prisons, for example, are brutal – but there is certainly research suggesting that most folks on death row have a pre-existing history of either mental illness, mental retardation, or brain injuries.

There are a several issues involved in the execution of people with mental illness. First, there are the moral questions. Is it fair to execute a person who makes decisions under the influence of brain illness or damage? Can such acts, no matter how heinous, ever carry sufficient moral culpability support death? A separate issue, for those who oppose abortion on the grounds of a predictable disability and simultaneously support the death penalty, is whether one can later support execution of a person whose behavior results, at least in part, from a disability that would not have justified abortion. If a person maintains these two positions, is she essentially arguing that the offender is allowed to be born on the chance that the disability will not result in a killing? But what if future research shows that particular disabilities are high predictors of future violence. Would a “death sentence” for the fetus then be justified?

There are also separate issues of the sort previously raised by the Court. Can a mentally ill person really assist counsel? Does execution of mentally ill people serve the purposes of punishment

Then there is the human rights issue. Does allowing execution of mentally ill people undermine our credibility as human rights activists around the world?

Some people will argue that these judgments are properly left to juries as they weigh aggravating and mitigating factors. Perhaps. As long as we have capital punishment, someone will have to make these tough calls at some stage – and I don’t have any more faith in judges than twelve citizens. But the only way a jury can make a fair judgment is if the defendant’s counsel effectively investigates and presents relevant facts. Sadly, based on recent ABA reports (such as the one from Alabama), too many defense lawyers aren’t up to the task. And that makes it awfully hard for juries to do their job properly.