Tuesday, March 30, 2004

Legal Academia

As someone who is considering a career as a legal academic, I am becoming more and more familiar (and vexed) with the path to the lectern. It is certainly an odd route, and one that encompasses at least one major contradiction. There is an obvious and systemic prejudice against practitioners, except insofar as they may serve as adjuncts of clinical faculty. Contra, there is an equally strong requirment that prospective professors practice law at one of the big firms in a big city, but for no more than four or five years. In case, you doubt this, take a look at the cv of any junior faculty member- nowhere on there is the word partner, but there is practice "experience."

What is confounding about this is that to those familiar with big firm practice, there really is not much practice going on in the first few years. You are essentially Mr. or Ms. Due Diligence. Maybe after a couple of years, you might do some real lawyering, but just as you are getting your hands dirty, you jump to academia. So why do future faculty members not just go the route similar to the induction process in other academic fields- doctoral studies, post-doc fellowship (maybe), gypsy scholar, etc. Because it is hard to buy the argument that they practice in order to gain experience that will be helpful in the classroom. If that was the case, they would practice for more than a couple of years and there would be a lot more experienced attorneys on our law faculties.

It would seem that this path is a helpful propaganda tool for legal academe. Despite growing numbers of graduate type students in law schools, the vast majority of people are there in furtherance of a professional goal. And, if law faculties were devoid of folks who had some, however little, practice experience would undermine its standing as a professional school.

But maybe there is a better way. Law schools could maintain a professional school image by increasing their clinical offerings (as many schools have done in the past twenty years) while eliminating the requirement that non-clinical faculty need their five years at Skadden Arps. The route would still include a prestiguous clerkship, but instead of the brief foray into practice, why not replace it with either a JSD or LLM and a requirement for more original research and publications (much like other academic fields).

Of course, this is just one person's opinion. And my bias is probably quite obvious in that I really see no need to do the big firm thing for a few years in order to be a good law professor. I would prefer that my scholarship speak for itself.

Sunday, March 28, 2004

Light Reading

This is one of three books I picked up last night. It is quite good, so far. My question is whether anyone else is interested in the intersection of criminality and morality? Or, am I just that nerdy?

Professionals or Intellectuals?

Matthew Yglesias: Base/Superstructure

This post by MY follows up on something Kevin Drum wrote about (and Mark Schmitt followed up on) with respect to the ideological slants in the blogosphere. The point being that the right is generally represented by libertarian-ish folks and that the left tends to be an amalgam of center lefties like yours truly.

Matt and others have posited that this is an unsurprising result of the demographics of bloggerville, given its preponderance of "students, academics and professionals." I am a bit confused, though, by the inclusion of professionals because Matt goes on to say that these people are not engaged in the real world. I think perhaps a better classification might be intellectual.

The term can be applied both to academics and non-academics alike. Many folks who work for a living are also intellectuals, whether they be lawyers, consultants, carpenters or plumbers. An intellectual is someone who looks for deeper meaning in life and the events around her. And it is not inconsistent to have one's head in the clouds while both feet are planted firmly on the ground.

I would also like to believe that one can blog and still be engaged in the real world. While there is a danger of becoming lost in a world of ideas, I find that a trip to the grocery store or the gym usually rouses me from my intellectual daydream.

Bad Cases Make Bad Law

5th Circuit gives police new power in searches

The old adage is all too true. This headline probably gives all of us who care about constitutional protections a chill. It is the details of the case, though, that are most unfortunate.

Here, police went to arrest a man at his trailer. They were told by another resident that the man was in the bedroom and invited the police in. Upon searching the bedroom the police found three weapons, but not the man (he was found later in the woods). At trial, the guns were not permitted as evidence because the judge concluded this was an illegal search.

The 5th Circuit Court of Appeals ordered a rehearing of the precedential case and as a result of their decision on rehearing have expanded the scope of permissible searches. It would seem to the ignorant observer (me) that the guns obtained ought to be admissible, as another resident invited the police in and told them that the putative criminal was in the bedroom. It would be logical that the police would look in the closet and under the bed. This ought not be the type of case where a court issues a broad reform of police search powers, though. And hopefully this decision will be read narrowly.

Looking at it from another perspective we may want to consider whether the invitor only had authority to grant access to common areas of the residence. Perhaps there is another threshold to be overcome to enter the private bedroom of the other person. Given that police did not have a search warrant, perhaps it would be best in those situations to require an affirmative act of permission by the bedroom's master to allow police access. Then we might also have to inquire as to who has the authority to grant access to a shared bedroom.

At bottom though, this whole mess could have been avoided had the police come armed with both a search warrant and an arrest warrant.

Felons and the Right to Vote

Fighting for Florida: Disenfranchised Florida Felons Struggle to Regain Their Rights

The partisan politics of this issue aside, this is a major problem for small "d" democracy. While stripping felons of their voting rights during their time of incarceration, and perhaps even parole, seems like a reasonable punishment, the failure to automatically restore those rights upon release from the criminal justice system is inexcusable.

In committing a felonious act, these individuals have distanced themselves from the rest of society. A punishment that includes loss of some of the rights of citizenship, aside from the loss of liberty resulting from incaceration or loss of mobility due to parole, is certainly just.

As part of that punishment, though, is a notion that once it has been served, the person's debt to society (such a loathsome term) has been paid off. And, that individual should have his full citizenship rights immediately.

By continuing to deny a felon's voting rights until such time as the review board decides to restore them, the state is extending the punishment longer that contemplated by the sentencing authority. The review process itself is tantamount to double jeopardy and ought to make anyone who believes in the 5th Amendment's protections wince.

Saturday, March 27, 2004

Criminal Injustice

Bishop Gets Probation for Hit-And-Run

The Arizona bishop (Thomas O'Brien) who struck and killed a pedestrian was sentenced to a mere four years of probation and 1000 hours of community service, despite the prosecution seeking six months of jail time. Not only had the bishop failed to stop (he claimed that he saw no one, just heard a loud sound), but he failed to contact police after the diocese informed him that he may have been involved in an accident. If this does not seem like indifference to human life and to the values we as a society are supposed to hold, then I am at a loss to figure out what is.

Beyond the question about whether or not the bishop received unequal justice is that of whether the retributive interest of justice has been served. The judge noted that O'Brien would have to face "the quiet whispers and glances of others for the rest of his life." But what about the dead victim? He will not take another breath, and I am quite sure his family would trade a hundred lifetimes of quiet glances just to have their loved one back.

If we are to live in a just and decent society, people must be punished for their infractions against society's legal code. While public shame (cf, the Scarlet Letter) may serve as a sort of punishment, it ought to be ancillary to criminal sanction that is appropriate to the crime. And who in good conscience can believe that four years of probation and 1000 hours of community service are commensurate with a life taken.

Friday, March 26, 2004

Back to the Issue at Hand (see below)

(note: Although I had intended a longer discussion of the pros and cons of criminalizing fetal injury that occurs during the commission of another crime, I have realized that there is ample yelling from both sides of the abortion debate already out there. So rather than recite my concerns with respect to the potential for turning such a statute into a sword to eviscerate abortion rights, I am going to spend my time here on the philosophical dimensions of crime and culpability and intent.)

The crime of injuring or killing a fetus during the commission of another crime presents us with an opportunity to examine the role of punishment in our society. It is normally narrowed down to three distinct, and at times conflicting, aims- retribution, rehabilitation and deterrence. In the perfect world that we like to hypothesize about, punishment would be tailored to serve both ends (perhaps not equally, but nearly so).

For the sake of argument I will dispense with the psychological battle over whether rehabilitation is possible for all criminals and accept that it is (I actually do not believe it is, but that is not the focus of this piece).

The criminalizing of fetus injury is a good case to use to clarify some of the issues surrounding the confluence of morality and criminality. It was Bentham who posited that morality and law were concentric circles with morality encompassing the smaller sphere of law. And while this, I think, is a fairly accurate description of the law in general, it still leaves open the dilemma of just how close the outer limits of the criminal law circle are to the morality circle.

Quite obviously, no society can come to a point where its law reflects the exact same area as morality. Simply because morality is not a static or objective concept. Even the most monolithic society will have a difficult time staking out two equal circles of crime and morality. But that should not foreclose the inquiry as to where the inner law circle lies.

There are, it would seem, certain fundamental moral values that we all share. I would suggest that we might all agree that homicide is immoral and therefore a logical act that lies within both the moral and law spheres. We might further agree, as a society, that injury to a fetus is morally wrong and should also be subject to criminal sanction.

Yet, even if we accept that further notion there is still the question of punishment and how it ought to be determined and which of our two remaining aims ought to shape how this crime is punished. There may be a distinction we would like to make between death or serious bodily harm to a fetus that was the result of a knowing action versus that which was unknown. We might further wish to think about the distinction between knowing and intended versus knowing yet unintended.

This is where we have to examine our underlying beliefs about the goals of criminal law. Let us first turn to the notion of deterrence. It might be said that a criminal scheme that grading crimes according to the distinctions made above would provide some sort of deterrent effect that might prevent an actor from knowingly and intentionally injuring a fetus (MPC malice); or, knowing and negligently (MPC reckless) bringing about injury to a fetus; or, in the most hopeful sense, provide an incentive not to do harm to women, period.

However, all of these suppositions rest on the ideal that deterrence is actually possible. It is a dubious assumption that the putative criminal actor is rational, and therefore susceptible to criminal penalties as disincentives to act. What proponents of the deterrence school would have us believe is that the batterer would think twice and halt his plan simply on the knowledge that his victim was pregnant. Even at the margins it is hard to believe that there is an actual chance for deterrence, at least partially because of the lack of knowledge of the criminal sanction. But even more so because the act of battery is in and of itself a fairly irrational act.
(note: I realize that what I am arguing here may lead to the conclusion that crimes are committed by some sort of compulsion and without the type of volition or free will that might then lead us to examine whether there is ever culpability.)

Does such a finding with respect to a lack of deterrent effect mean that this crime should be a strict liability crime? Perhaps not. If we accept that there are gradations of blameworthiness, there is no reason why the threshold offense might not be strict liability with increased punishments for higher levels of culpability as determined by increased mens rea requirements.

This would dovetail nicely with our notions of retributive justice in that there is some form of punishment for fetal injury no matter what the attendant level of knowledge on the part of the defendant. However, as the actor's level of knowledge increases to negligent to reckless to malicious it would make some sense that he would face stiffer sanctions as society's outrage over his act increases.

Again, though, this may also be a part of our hypothetical fantasyland. First, divining the defendant's mens rea, absent some affirmative statement, is not a science. There is ample opportunity to find a particular defendant negligent when in fact he was reckless. The distinction between grades is often vague and difficult for a room of jurors to grasp, and is prone to large error. Further, and perhaps more important, is whether we want to make a distinction between levels of knowledge. We might rather draw the line between knowing and not knowing, with the former carrying a much stiffer sanction. It would seem, from a practical matter though that the line might be best drawn at the level of negligence (know or should have reasonably known). In the former example, where grades were based on level of knowledge the result might be that an actor could disclaim knowledge even though the putative victim was clad in maternity wear.

Even still, there remains an additional mens rea problem. What is it that the defendant has knowledge of- that the victim is with child or that his actions are likely to harm the fetus. This may sound to some like a distinction without a difference, but think of this case- the defendant robs victim who is pregnant; the victim informs defendant that she is pregnant; defendant places a gun to victim's head and the apprehension of death causes such trauma as to result in miscarriage. If we use knowledge of likely effect as the mens rea test, then this defendant quite likely has not violated the law unless he knew or reasonably could have foreseen that placing a gun to his victim's head would result in miscarriage. That would certainly be a most difficult row to hoe.

One final note is to see the striking similarity all this has to the felony murder rule. There, many jurisdictions have backed away from the rule, deciding that the defendant did not have the requisite intent to commit murder and is therefore not culpable. Suffice to say that I think those jurisdictions are wrong, especially California and its merger doctrine. But I think that the same objections that have been made to the felony murder rule can be made here. And it falls back on intent and how that factors into culpability and punishment. Essentially, the argument is this- one should only (in most circumstances) be punished for what he intended to do. Yet, the actor who commits murder during an armed robbery, just like the robber who injures a known pregnant woman, must be held accountable for his actions. Not just because they are likely, but because it is the right thing to do if we are to serve any notion of retributive justice.

Conflicting Thoughts

Senate Outlaws Injury to Fetus During a Crime
I am still trying to figure out where I stand on this, and plan to write something longer about it later. The brief version is that I think there are valid reasons for increased criminal penalties for those who KNOWINGLY injure or kill a fetus in the commission of a crime. However, I am sensitive to the slippery slope here with respect to abortion rights.
Like I said, more later.

Monday, March 22, 2004

Updated Roll

Please note the new links section on your right. When I have a moment, I will add a new section of links to blogs, but it will be small. These changes are meant to reflect what I think is important and I hope you will consider supporting one (or more) of these organizations.

Living in a Material World

The past few weeks have been spent pondering my future. Not just the immediate trials and tribulations of finding a summer job in law nor the somewhat more intermediate question of whether to transfer back east for next fall, but the more eternal quest for meaning and guiding or ordering principles for life.

I came to law school with the express purpose of positioning myself for a big firm job in transactional practice. For most of my adult life I had been involved in public service in one form or another, but I thought that in order to be a grown up I needed to start considering my economic needs and how my income would allow for a certain degree of financial stability for myself and a future family. In my mind I rationalized away any conflict with my innermost need to engage in work that was somehow in the public good through a series of mental judo moves. Whether it was telling myself that a career in public finance would be helpful to others by securing funding for building schools and hospitals or imagining myself as some sort of regulatory sheriff protecting the interests of pensioners as an SEC attorney I got quite good at satisfying myself that what I was doing was not some sort of selfish indulgence.

Unfortunately, such self delusion can last only so long. And in the past month or so I have moped around, grasping and groping for an answer to why I was so unhappy. Was it that my family and girlfriend were a thousand miles away? Was it my frustration with the administration and general unhappiness with my law school? Or, maybe there was something much deeper behind my malaise.

After thinking through my emotional highs and lows over the past many years, one thing stuck out. Each time I have disengaged from public service, misery has soon followed. Something deep inside me needs the sort of satisfaction that comes from helping others and being engaged in a community. I seem able to weather short periods of detachment, but after a certain point there descends on me a feeling of absence.

It has been just over a year since I left my last position in government. A good chunk of the intervening time has been spent filling out law school applications, moving and beginning law school. And, the blog has (had) been my way of trying to be engaged in something larger than just my own little world. But more and more I felt as though I was ranting from a soapbox in a deserted town square. And the more I heard the echoing of my own voice, the more I was turned off by its tendency towards shrillness and felt that I was becoming bitter and cynical.

There has always been a certain level of frustration present in my refusal to accept society and its institutions as they are. I am not one to merely sit back and let the current take me where it may lead and this can cause problems in both my personal and professional life. But from that same fountain of emotion comes my passion to do good. It is vitally important to me, and to my well being, that I be engaged in creating what I believe to be a good and just society.

This dawned on me the other day in an interview that I had with the Family Court. When asked why I wanted the position I told them because it was something that I needed, not wanted. I needed to be doing the sort of work that would impact kids' lives; that if I did not have this sort of opportunity I would feel guilty for taking three years of my life off to attend law school.

The obvious corollary to this is that I am, more or less, consigning myself to a life of relative poverty as either a government or public interest lawyer. (nb: unless I opt for the law professor track) And thus I am back to exactly where I was about ten years ago- a mountain of debt with a meager potential income. To say that it is frustrating is beyond understatement. Thinking about how much some of my classmates will earn when we leave law school inspires a bit of envy, and the realization that I may actually have a life outside of work does little to reduce a mortgage sized education debt. Sure, I can assuage myself with knowing that the work I will be doing has much more intrinsic value than shuffling around some papers in furtherance of some tax avoidance scheme.

But I come back to something a very dear friend said to me many years ago. He said that there was something terribly wrong with a society that places such a higher value on helping the rich get richer than helping suicidal kids get better. I suppose, though, that if that was not the case and our society valued the important work that millions of teachers, lawyers, childcare workers, social workers, etc. do each and every day I would have considerably less work to do in making this a better and more just place.

Monday, March 15, 2004


musclehead will be on an extended hiatus. I am calling it a sabbatical just in case I decide to come back to this space in the future. But as of right now I really do not have the time or the inclination to keep it up. Just a glance at the page will show that I have not been keeping much, if at all, over the past few months.

What I would really be interested in is a group blog similar to Crooked Timber or Crescat or any of the other intellectual collaboratives. So, if anyone is in the market for an additional member or wants to create something new, drop me a line here.

Saturday, March 06, 2004

Vacation, All I Ever Wanted...

Ahh.. spring break. A time to relax and enjoy life. And, more importantly, to get the heck out of the Midwest. A little New York will hopefully clear my mind and I will be back to posting regularly sometime soon.

Vacation, All I Ever Wanted...

Ahh.. spring break. A time to relax and enjoy life. And, more importantly, to get the heck out of the Midwest. A little New York will hopefully clear my mind and I will be back to posting regularly sometime soon.

Monday, March 01, 2004

They Really Must Think We Are Dumb

How else can one explain this bit of political rhetoric by a candidate for U.S. Senator from Illinois- "corporations pay 14% of their income in taxes; the average family pays 25%", then he says something about that being unfair and how he will change it.

But let us not get carried away. Who are these nameless, faceless corporations? More importantly, where do their earnings go, if not to taxes? A corporation is made up of individuals, from minimum wage folks up to the top paid CEO, all of whom are paid with the corporation's revenue. And profits are distributed to share holders through dividends.

So, if we raise the effective tax rate for corporations to equal that of the average family, what might occur? Well, that depends on the elasticity of demand of the products that a particular company makes. Absent near elastic demand, the consumer of the good or service will bear a portion of the increased tax. The other victim of the tax increase would be the corporation's shareholders, who are most likely large institutional investors, such as retirement plans and mutual funds. Or, the corporation could squeeze dollars out of its process, by increasing efficiency or technology or dampening wage increases. No matter how one looks at the result, it is not the corporation who actually absorbs the cost of a higher tax rate.

After all, what is a corporation? It is not a thing anymore than it is a group of people. You cannot hurt "it" without harming its component parts, which are people, or without passing along the effects to consumers. But what you can do, apparently, is use political rhetoric to villify the engines of economic prosperity when you are a Democrat running for the U.S. Senate.