Ciceronian Review

Balloton Cherries

At Slow Food last week I discovered Balaton Cherries. (They were the cherry part of a Chandler walnut and Balaton cherry ice cream.) Not quite to the level of art, still extraordinarily good. The cherries were slightly less sweet than the usual, with a good deal more and more complex flavor. Of course, I had been drinking a bit by then, so not the perfect tasting context for reporting (but consumption is something else, and as an art consumer I care more about the latter than the former). If anyone comes upon a source for Balatons, please drop me a line.

Web Page Is A Crime

Once again Utah leads the way on speech and crime. Down in Utah County (home of BYU, safely distant from the corruption of the big city of Salt Lake) the police have arrested two high school students for posting a web page in which they "threaten jocks". (The article notes that the "screed," which had been up two weeks, singled out "Mormons and jocks" for disfavorable comment. Oh, we're all safe because the two were booked into juvenile detention. Police had "no choice" because it was "scarily" like "what happened at Columbine." Well, except for the fact that there is no indication that either of these two owned or had access to guns, have any history of use of weapons, that there is in fact no reason to think this is anything but adolescent silliness (no, not the police, the little terrorists).

Those in state may recall that two years ago we were blessed with a prosecution for criminal libel, based on a high school student's web page. (See, e.g., SL Trib., 08/04/00 - subscription required). There, the offense seems to have been that the school principal's feelings got hurt, and the student said mean things about people who said -- that's right -- mean things about him.

Technicalities: Mea Culpa & Apologia

The discussion of procedure in recent days by Clerk and others here and here about technicalities and procedure in connection with rights is intriguing. The discussion started with a reference to the decision of the D.C. Circuit overturning Poindexter's conviction for lying to Congress (951 F.2d 369 (D.C. Cir. 1991) and then included the decision of the Nevada Supreme Court (71 P.3d 1269 (Nev. 2003)) holding that the Legislature could not rely on supermajority voting requirements to fail to fund pubic education. I had an initial reaction (immediately below), one which I think was wrong. In the process of thinking more about the discussion, I got to wondering about other contexts in which 'getting off on a technicality' plays out.
Innocence: Poindexter clearly was not innocent -- he did lie to Congress, he did engage in fraud. He clearly violated the law in a number of other respects, and did so intentionally. Noting that the reversal of conviction was based on procedural failures may underplay the nature of the defect in process, as it did concern (in effect) the Fifth Amendment, but it is not inaccurate. It is not unfair to describe the reversal in a way which does not suggest innocence. Similarly, North did the crimes he was initially convicted of, and the reversal was a decision that he was innocent. The majority's interest in protecting Fifth Amendment rights is admirable, at least in some lights (i.e., if the D.C. Circuit consistently applied these sorts of standards to someone other than white collar defendants - but that is beside the present point).
Empty Rights. The other object of complaint was a decision that the legislature could not use procedural devices to avoid a constitutionally mandated duty. The Nevada Constitution requires state funding of public education. (Art. II, Sect. 6.) Governor is thought a bad decision because, it seems, the Court gave short shrift to other provisions establishing a supermajority vote on funding issues. Presumably the fact that the procedural barrier is constitutional is of some weight. It could not be that rules of the legislature could shield it from a duty to enforce or fulfill substantive constitutional rights. (If simple house rules could be sufficient grounds then anytime a legislature decides it does not like a constitutional mandate it can simply not fund enforcement or execution, which would make the substantive right a chimera.) If the specific substantive right is trumped by procedural constraints, then the substantive right still is too much at risk. A minority could again eviscerate the right. Having placed the substantive right in the constitution, its destruction should come through removal, not through manipulation of budgets. The fact that it is the legislature, rather than an executive agency or officer, that is being ordered about should not alter the outcome.
Mea Culpa & Apologia. I think my initial reaction was wrong on a couple of scores. First, and most painfully obvious, I conflated Poindexter with North. True, both get referred to, but still a mistake. Second, the point of the arguments made was that the idea that one gets off on technicalities does seriously undervalue the integrity of legal processes, it does violence to the notion of constitutional rights. That point is right, at least it is if one believes that constitutional law is constitutive of political legitimacy. But something I do want to retrieve and defend - the two complaints don't sit together. If substantive rights can be eviscerated by procedural maneuvers, there is real danger that the guarantees of a constitution are empty. (The unfair examples: The Soviet and PRC Constitutions were and are full of rights that don't matter.) Or, put another way, I think one ought not think both that North/Poindexter illustrate the importance of procedural integrity in service of a constitutional right and condemn Governor for not permitting procedural maneuvers to eviscerate a constitutional right. In both, if we assume good faith from the courts, the decisions aim to vindicate the substance of rights.

Technicalities

T. Sandefur picks up on a discussion by the gracious Clerk of technicalities in the law, viz., 'getting off on a technicality,' which Sandefur discusses in the context of the Nevada Supreme COurt's decision that the Legislature could not refuse to fund public eeducation (which appears to be an enumerated right in that state - I wil need to check). There are actually a couple of different discussions here, First, there is a bit of sly example selection here. Oliver North getting off on a technicality and over-riding the Legislature. But if procedural propriety were anything like the controlling value suggeted by the gentlemen, it would effect a remarkable transformation in the law. Some small examples -- default judgment would be automatic; no difference in the treatment of pro se and represented parties; abandonment of notice pleading; so long preclusion doctrines. Both Clerk and Sandefur (seconded by Will Baude at Crescat Sententia talk of the law (or more likely, rule of law) as mainly procedural. This is a curious view. On lots of measures, it is a mistake. The US Code has relatively little on procedure, and in similar fashion the state codes are short on procedure and long on substance. Indeed, when you get down to thinking about it, even due process (or Due Process for those from Yale) is less about adherence to pre-announced procedures than about the substance of whether there was a fair hearing. No doubt, the division between procedure and substance is itself no more than a convenience.
The point on which I think they are right is the talking about people 'getting off on a techicality' is wrong-headed. Guilty of crime means convicted, and enforcing the substantive standards of proof, etc., is extremely important. (On the other hand, there is no doubt that North lied to Congress along with committing other violations of law.)

Raboni/Palma - Chorus

Chorus

How many lies we're liberated from
when a friend dies! The anguish, the apprehension
that some untruth will find its way to him
all suddenly nonexistent once again.
And when we've watched his gaze as it slowly slip saway
down on the floor or stands spellbound in the darkness,
our heart is resurrected uncomplicated, proud
of our hypocritical ancestors and our lazy ways.

Coro

Da quante bugie ci libera la morte
di un amico! L'angoscia, il batticuore
che una menzogna gli sia rivelata
ridiventano nulla in un istante.
E dietro il suo sguardo che lentamente s'inclina
al paimento della stanza o s'incanta nel buio
il nostro cuore risorge cosi semplicw, fiero
dei nostri falsi antenati e delle oziose abitudini

US Citizens As Enemy Combatants

The Federal Government has "announced" its policy on the detention andinterrogation of citizens detained as enemy combatants. Aside from the fact that the speakers are anonymous (why is that I wonder?), the announcment is intriguing. The policy now is to give citizens access to counsel only after there is no point to having counsel.

Moral Combat

Heidi Hurd published an interesting book on civil disobedinece (Moral Combat). In between the torments of discovery in a case that raises genuine Rule 11 issues (one of the things which happens when judges get to know attorneys is that the judges ignore the rules and let the good buddy litigate things in the belief that somewhere down the road something will turn up to make the case something more than risible, even if far from enough to get to trial) and drafting the inevitable motion for summary judgment, I have been reading Prof. Hurd’s book. Today starts a series recording some thoughts in reaction to that work.
Hurd’s view seem to me to arise from basic commitments about the nature of morality and moral epistemology. Reconstructed, I understand her argument, in the first instance, to be this:
Rightness of conduct is not tied to or dependent on epistemological claims. That an action is right has no useful implications for the question of knowledge (or even reasonable belief?) that it is right. This claim follows from her view that the rightness of an action is objective and not epistemic. In the context of law, this in turn entails distinguishing between, on the one hand, culpable and non-culpable conduct, and, on the other hand, between justified and unjustified conduct. Determinations of culpability turn on epistemic evaluations. Culpable action is action the actor believes to be wrong or which the actor unjustifiably believes is right. (The ‘unjustifiably believes’ is Hurd’s phrasing. I would have expected the standard to be ‘unreasonably believes.’ It could be that justification here necessarily incorporates a reasonableness standard; I need to check that.) In any event, the line between culpable and non-culpable is based on assessment of the intent and epistemic state of the actor. Culpability is a normal condition for punishment. Justified and unjustified are derived from consideration of the relationship of the action and actor to rightness. As I understand it, an action is unjustified if it is not right, and, conversely, an action is justified by rightness. Rightness, for Hurd, is a function of the degree the action satisfies objective criteria specified by the best normative theory. Right actions are justified. The justifiability of an action determines the justifiability of preventing such conduct.
So, to put a little clothing on the apparatus, an action may be prevented to the extent that it is unjustified. The state may prevent actions through punishment (presumably as one among a variety of methods, although Hurd skips over that in this book). A justified action therefore is one that should not be punished. It is also true under this approach that an unjustified action need not be punishable, because it may not be culpable. For example, if the action is unjustified but the actor is non-culpable because the actor justifiably believed the conduct was right (or justified). There are then two modalities for normative assessment: the objective standards of justifiability and the epistemic standards of culpability. Presumably the latter are characterized as a kind of social convention regarding beliefs, a floating world of conventions and conventional (or maybe intersubjective) agreements about reasoning and beliefs. The former should be something else, but I am unsure how that is to be.
The ‘objective’ standard is characterized as ‘degree the action satisfies objective criteria specified by the best normative theory’. So the criteria (indicating degree of satisfaction) are objective, but the theory for which they are criteria is not (‘best normative theory’ can’t be an interestingly objective category – the point of that description has to be to forestall questions of truth regarding the normative theory). I would expect that ‘objective’ here is intended to require that the criteria be things about the world which are either, in an uncritical sense, true (questions of fact would be a way to say it) or about which there is no real possibility of sane dissent. I am not sure that I have a good sense of what would count as objective criteria. I have a good enough sense of what would count as reasonable reasoning processes and reasonable beliefs about factual questions, i.e., beliefs about the state of the world and how the world works, but I would be disinclined to talk about that as objective criteria of much of anything, unless ‘objective’ is emptied of ordinary meaning. One example would do it: what to do about people who talk to God? Maybe the Pope does. Certainly the President of the LDS Church talks with God. Having conversations with God would seem like a good source of information, God being the creator and animator of it all. On the other hand, it is hard to take talking to God seriously. I don’t know how any of this gets handled on objective criteria. But this kind of worry can be resolved, I think, with a moderate amount of work and some good faith engagement. Doing that highlights what I think (for now, anyway) is a more fundamental problem, which is that it seems difficult to specify what would count as objective criteria until after the ‘best normative theory’ is identified.
I have to return to the unhappy in purgatory – the associates struggling with msj.

Prof. Bainbridge on Prudence

Prof. Bainbridge has a long comment today about the War in Iraq. In the course of that commentary is a brief passage about the U.S. having "cut and run" in Southeast Asia. That comment I find curious, and wrong in several important ways. First, it is a rather odd way to talk of a war that lasted over several decades and cost something over 3 million lives, about 50,000 of which were US military, and billions of dollars. It is also an odd, and by now unjutfiably myopic misreading of the relevant history. Having aided French efforts to re-establish colonialization in Indochina, and having manufactured governments whose committments often ran no further than the collection of money, talking of "cut and run" is, even as short hand, unduly tendentious. I too grew up in a military family in a military town, and it was the heart of active force deployments in the War in Indochina. Memories, of course, differ. The officers I grew up around did not complain about "cut and run." They complained about race war in the ranks, about political cowardice and confusion and hypocrisy. They complained about the senior officer corps -- the likes of Westmoreland -- who didn't have a clue about anything other than politics.

Such "cut and run" remarks are redolent of Dick Cheney -- always ready to rattle sabers he won't wield. Maybe I am misreading a comment made by the way. That is at least possible, if not probable. The topic for Prof. Bainbridge is, after all. Iraq, not Indochina.

Civil Disobedience

Professional ethics – call it legal ethics – ends up as somewhat indirect discussion of civil disobedience, at least when talking about the “foundational” aspects of legal ethics. Even worrying about the boundaries of confidentiality ends up taking one to the question of civil disobedience. I suppose one might not think of legal ethics as law, and so not connected to civil disobedience. I think a plausible argument can be made that the rules of professional conduct are law. In addition to the sanctions, and the fact that most of the time (well, in the states in which I am admitted) the bar is ultimately controlled by the Supreme Court, there is the fact that the professional standards end up as parts of the rules of court, and rules of court are law. I am doubtful that anything much turns on this point, but it’s really very early and I am short on coffee (elixir of life in this dim world). To get back to the point, legal ethics intertwines with the questions of civil disobedience in such a way that our commitments as to the latter will necessarily inform our commitments as to the former. The reason to care about that, in my view, is that it leads us to consider the question of whether normative theory – or values – are or should be consistent. (Consistent is not quite the right technical terms, I know.) That is, we get to the question of whether there are irresolvable conflicts in duties, whether the normative claims on our social lives are ultimately normalizable. The question here is distinct, I think, from whether there are irresolvable conflicts in moral views and whether the demands of justice and morality are consistent, and whether moral duties are ever in conflict. It is a different question insofar as one is willing (or able) to believe that there are distinct sources (and kinds) of normative structures. Of one is a natural law theorist, then that last sentence is either false or nonsensical (even if it were to be rewritten to be both articulate and accurate, neither of which is a virtue of the sentence at the moment). If, on the other hand, one (has seen the light and) adheres to a positivist theory of law, the issue of inconsistent normative demands is a live question.

Bradley Wendel has a interesting discussion of the relationship, starting from the legal ethics side of the question. Reduced (in the cooking sense) to a sentence, Wendel’s take seems to me to be that legal ethics has to derive from the general account of the normativity, which is to say authority, of law, and therefore departures from the norms of legal ethics by lawyers are justifiable only where (the instant apparent) law has been more or less completely severed from the general justificatory account. (I.e., the moral horror exception discussed a little bit below.) (Wendel has a broadly coordination theory justification in mind.) In other words, lawyers are under a duty (i.e., a professional duty) to a fair amount of immoral stuff (in the technical sense of ‘stuff’). As a factual description, that is quite right. I don’t know whether Wendel would accept this implication, but I think it is there. I don’t think it is defect, though I suppose many would.

Election Reform

I expect there will be a good deal of commentary on the Supreme Court's decision on election financing. It would be good to keep in mind that financing campaigns should be thought about in the connection with districting and re-districting decision (gerrymandering). In a peculiar moment I find myself in agreement with Schwarzchild on the Right Coast. The more or less complete disappearence of contested Congressional races is bad for democracy and worse for the country. It is the same on the state level. (It is a peculiar moment because I find, as is obvious if one reads down the blog further, that the views advanced on the Right Coast are, uhm, how shall I say, consistently wrong.)