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Ideology and Crime: A Further Chapter
David W. Garland
In 1965, Leon Radzinowicz delivered the James S. Carpentier Lectures to an Ivy League audience in uptown Manhattan. The venue was Columbia University Law School--a great and venerable institution that my colleagues at New York University now think of, fondly, as the second best law school in the City. Back in 1965, however, Columbia was the unchallenged centre of legal education in New York, and the Carpentier Lectures were a prestigious occasion that bestowed considerable honour upon both the lecturer and the subject of his lecture. The following year these Columbia lectures were published as a short book entitled Ideology and Crime: A Study of Crime in its Social and Historical Contexts. When I took my first class in criminology in 1974, as a student in the newly formed Department of Criminology at Edinburgh University (headed by Derick McClintock, who had worked with, or for, Radzinowicz for 25 years) Ideology and Crime was at the top of the reading list. If the point of an introductory text is to give an accessible overview of the subject and to convince the reader of the subject's importance in the wider scheme of things, then Ideology and Crime did its job brilliantly. In 1965, a person taking a cool, hard look at criminology would probably have described the subject as a fledgling sub-discipline with a dubious history, uncertain scientific credentials, and a very tenuous claim to academic respectability. Needless to say, this was not the image evoked by Ideology and Crime. In Radzinowicz's urbane, polished prose, criminology is portrayed not as an upstart subject, scrambling to claim a place in the academy, but as a central current in mankind's struggle for enlightenment, a crucial element in the formation of a modem civilisation, a humanistic science connected to the very heart of cosmopolitan culture. As Radzinowicz tells it, criminology's story is set amid the grandeur of European culture, in an age of scientific progress and social reform. And, in the process of telling this story, using all his considerable powers of language and imagery and historical allusion, Radzinowicz ensures that the prestige of these noble origins is effectively transferred to the struggling new subject. In the span of this short book, and in an impressive feat of rhetorical power and historical conjuring, criminology's status and significance come to take on world-historic dimensions. This is institution-building raised to a fine art—firing the imagination as a preliminary to raising the funds and building the buildings. It seems likely from the circumstances that Radzinowicz's appointment as a Carpentier Lecturer had been the result, at least in part, of urging by members of the New York Bar Association, who were at that time campaigning to establish an 'Institute of Criminology and Criminal Justice' in New York City and who had already commissioned Radzinowicz to produce a short report on that subject. If so, his sponsors must have been delighted by his bravura performance. Ideology and Crime opens with a characteristically arresting passage: “The first modem penal ideology [which he calls ‘the Liberal Position’ or ‘classicism’] was forged during that memorable turning point in human affairs, the eighteenth century, and tempered in the fires of more than one revolution. It was forged in Europe at a time when Europe was the centre of the world. Its precursors were French philosophers at a time when France was the centre of Europe. Negatively it was part of the revolt against many ancient abuses, positively it was part of a new view of man in relation to himself and to society.” Undergraduate readers coming to this story for the first time could be forgiven for being swept away by Radzinowicz's magisterial prose and fully convinced of the subject's world-historic importance. And why not? Government ministers, major philanthropists, charitable foundations and university authorities were also moved by claims such as these. Indeed, in the catalogue of causes that produced the Cambridge Institute of Criminology and the criminological establishment that has emerged in Britain over the last 40 years, Radzinowicz's rhetorical skill, his historical vision and his demonic energy must certainly figure as forces that played a key role. Ideology and Crime remains today my favourite historical introduction to criminology. To describe it as a history of criminology isn't exactly correct, however. Rather, it is a succinct outline of the intellectual and political frameworks that have shaped penal policy and practice from the eighteenth century to the present day or rather, to the day before yesterday, since the penal landscape of 1965 is very different from the one that we now confront, as Radzinowicz himself would later point out.
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Of Crimes and Criminals: The Development of Criminology in Britain
David W. Garland
This chapter presents an interpretation of the historical development of criminology in Britain. Any such history is inevitably a contentious undertaking, entailing theoretical choices and rhetorical purposes as well as the selection and arrangement of historical materials. Whether they acknowledge it or not, histories of the discipline necessarily come up against fundamental issues—What is ‘criminology’? What are its central features? How are its conceptual and historical boundaries identified? In what institutional, political, or cultural contexts should it be situated? It may therefore be useful to begin by outlining some of the theoretical assumptions that underpin the interpretation offered here. I take criminology to be a specific genre of discourse and inquiry about crime—a genre that has developed in the modern period and that can be distinguished from other ways of talking and thinking about criminal conduct. Thus, for example, criminology's claim to be an empirically grounded, scientific undertaking sets it apart from moral and legal discourses, while its focus upon crime differentiates it from other social scientific genres, such as the sociology of deviance and control, whose objects of study are broader and not defined by the criminal law. Since the middle years of the twentieth century, criminology has also been increasingly marked off from other discourses by the trappings of a distinctive disciplinary identity, with its own journals, professional associations, professorships, and institutes. One of the concerns of this essay will be to try to explain how such a discipline came to exist as an accredited specialism, supported by universities and governments alike. My broad historical argument will be that modern criminology grew out of the theoretical debate by other means. The recovery of a lost theoretical tradition, the reinterpretation of the subject's early history, claims and counter-claims about the true ‘founders’ of the discipline, or critical summaries of previous patterns of thought, are all ways in which the subject's history gets drafted into current controversies and made to do duty for one side or the other. The history of the discipline has, on a few occasions, formed the central subject matter for a book or an article. Most of these excursions into historical criminology are minor attempts to attribute importance to a particular author whose influence upon the subject is felt to have been slighted, but some historical writings have more ambitious intentions. Books such as Mannheim's Pioneers in Criminology (1960), or Radzinowicz's Ideology and Crime (1966)—both published by leading figures in the process of discipline-building-played an important role in shaping the contours and self consciousness of the discipline, and sought to enhance its status by invoking a distinguished Enlightenment past and a progressive scientific mission. The collection entitled The History of British Criminology (Rock 1988a)—edited by one of the sociologists who helped remake British criminology in the 1960s and 1970s—professes similar discipline-forming ambitions, aiming to introduce new generations of criminologists to a revised history more in keeping with contemporary interests and understandings. It is not just the textbooks that have to be adjusted when a discipline changes; history must also be rewritten. The received history of the discipline, often simplified into a tale of icons and demons (Beccaria, Lombroso, Burt, Radzinowicz . . . ), a few key distinctions (classicism, positivism, radicalism . . . ), and an overarching narrative in which ideological error is gradually displaced by the findings of science ( e.g., the myth of the born criminal and its subsequent debunking), plays a small but significant role in shaping the horizons and reference points of contemporary criminology. A discipline's practitioners work with a sense of where their subject has come from and where it is going, which issues are settled and which are still live, who are the exemplars to imitate and who are the anathemas to be avoided. Perhaps most importantly, the received history provides practitioners with a standard-issue kit of collective terms and shared values. Thus, for example, anyone who learned about the discipline's history from the textbooks of the 1970s and 1980s would find it hard to identify with the methods and aspirations of ‘positivism’, even though this term was broad enough to include virtually the whole discipline prior to the rise of 'labelling' theories and the associated anti-positivist critiques. The standard textbook account of criminology's history begins with the writings of criminal law reformers in the eighteenth century, particularly Beccaria, Bentham, Romilly, and Howard. These writers are said to have characterized the offender as a rational, free-willed actor who engages in crime in a calculated, utilitarian way and is therefore responsive to deterrent, proportionate penalties of the kind that the reformers preferred. This ‘classical school of criminology’, as it is usually called, was subsequently challenged, in the late nineteenth century, by writers of the ‘positivist school’ (Lombroso, Ferri, and Garofalo are usually cited) who adopted a more empirical, scientific approach to the subject, and investigated ‘the criminal’ using the techniques of psychiatry, physical anthropology, anthropometry, and other new human sciences. The positivist school claimed to have discovered evidence of the existence of ‘criminal types’ whose behaviour was determined rather than chosen and for whom treatment rather than punishment was appropriate. Subsequent research refuted or modified most of the specific claims of Lombroso, and restored the credibility of some of the 'classicist' ideas he opposed, but the project of a scientific criminology had been founded, and this enterprise continues, in a more diverse and sophisticated way, today. This standard textbook history is, of course, broadly accurate-it would be very surprising if it were not. But the broad sweep of its narrative and the resounding simplicity of its generic terms can be profoundly misleading if they are taken as real history, rather than as a kind of foundational myth, developed not for historical purposes but for heuristic ones.
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Sociological Perspectives on Punishmen
David W. Garland
This four-volume collection deals with the causes and prevention of crime as well as the treatment and punishment of its perpetrators. While taking a sociological approach to the subject, the articles gathered in this collection reflect the diversity of related fields and theoretical traditions which inform the study of crime - including economics, history, psychology and anthropology. The set provides an historical overview of the development of the study of crime and a picture of the field as it currently stands.
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Jacob Katz on Halakhah, Orthodoxy, and History
Moshe Halbertal
Jacob Katz's research touched upon patterns of continuity and change in central domains of Jewish history. He investigated medieval Jewish society's attitude toward its Christian environment and its transformation when Jews began to integrate into European society from the late eighteenth through the nineteenth centuries. He examined the internal structure of traditional Jewish society in Central and Eastern Europe and its disruption with the rise of Hasidism and the Haskalah. And last, but not least, he analyzed the emergence of Orthodoxy as a response to the crisis of traditional society, and the advent of Jewish nationalism in the modern age. Beyond his major achievements in these areas, Jacob Katz made a unique methodological contribution to social history. He taught us to think not only about events and people, but also about structures and patterns. His writings on these varied subjects exhibit a marvelous and unique sense of language clear, penetrating, and restrained. His writing neither praises exorbitantly nor condemns ruthlessly. His sentences are careful, considered, and economical. This restraint is manifest in his work even when he discusses complex subjects, such as relations between Jews and non Jews or the rise of Orthodoxy, subjects that invite the scholar to involve himself, to appraise different positions, and to render a verdict. Katz analyzes these subjects in detail and in a most incisive way, but he abstains from expressing a position and from making value judgments. Yet, after many years of scholarship, Jacob Katz broke his silence and took a stand. With the dedicated help of Emanuel Etkes, Katz prepared his last book, ‘Et Laḥkor ve-‘Et Lehitbonen (“A Time to Study and a Time to Reflect”), which not only crystallizes his position on methodological issues in history, but also reflects his views on Israeli society—its hopes and predicaments. The fact that this time of reflection came in his later years, as his final bequest, means that this book has the quality of a will and testament. It is a fascinating personal verdict, which demands the special attention of his students and readers. My essay, which concentrates on Jacob Katz's last book, is, therefore, not devoted to a detailed analysis of one of the many subjects with which he dealt as an historian. My aim is to explicate his value stance, to address how Katz used historical investigation to shape and support such a stance, and how, in tum, his position may have shaped his direction as an historian. I shall focus on the connection between Katz's great historical and structural analysis of the rise of Orthodoxy and his judgment and assessment of its role in modem-day Israel. Katz articulated his principled value stance with a two-front polemic: his response to the critique of Zionism as advanced by the “new historians” and his reservations concerning the attitude of the State of lsrael toward Orthodox Judaism, in both varieties, the Ḥaredi or ultra-Orthodox and Religious Zionism. Although, on the face of it, these are two entirely different issues, a unifying concept lies behind Katz's response. He makes a methodical defense of classical Zionism based on a clear-headed view of national sovereignty—the sovereign government, in Weber's definition, has a monopoly on the legitimate use of force, and a sovereign power is judged on the basis of whether it uses too much or too little coercion. In contrast to the critical attitude of the “new historians,” Katz identifies entirely with the decisions made by the Yishuv leadership during the Holocaust. Since Ben-Gurion understood that the Yishuv was powerless to do anything to change the fate of European Jewry, he refrained from investing resources in that direction. An investment of resources in a lost cause, when those same resources were critical for the future struggle for national independence, was for Ben-Gurion a luxury that the Yishuv could not afford. Ben-Gurion rejected his critics' contention that such an investment would fulfill a sentimental moral obligation. Ben-Gurion acted as a statesman, and his greatness lay in not allowing his emotional instincts to determine his political decisions. Katz makes a similar argument about the creation of the Palestinian refugee problem. When the War of lndependence began, Ben-Gurion believed that the Yishuv would not be able to survive without a Jewish majority and a broad territory. His critics err in assuming that the outcome of the struggle was clear from the start. Yet this was not how it looked to those who held the political and existential fate of the Yishuv in their hands. In a state of existential danger a state can permit itself exceptional, painful measures. In both these matters Ben Gurion acted as a pragmatic politician and used force justifiably. In Katz's opinion, the “new historians” display a great deal of the wisdom of hindsight and very little political sense.
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Excuse: Infancy
Randy Hertz
The infancy defense, which dates back to the common law and is still recognized in some form or another in the vast majority of jurisdictions, bars the prosecution of children below a specified age (age seven at common law) and presumptively precludes prosecution of older minors (ages seven to fourteen at common law) in the adult criminal justice system (although, under modern statutes, children in the latter group are still eligible for prosecution in juvenile delinquency proceedings).
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The Significance of the Protocol for WTO Dispute Settlement
Robert L. Howse and Joshua Meltzer
This chapter illustrates how the biosafety protocol may be utilized by Panel and Appellate Bodies to interpret a number of concrete World Trade Organization (WTO) legal provisions that may well come into play in disputes about trade and biosafety. There is a widespread public perception that efforts by democratic governments to regulate environmental matters are coming into conflict with rules on free trade of the WTO. The WTO Appellate Body has emphasized the importance of using international law and policy on biodiversity. The precautionary principle has been explicitly incorporated into the Cartagena Protocol at a number of points. The biosafety protocol requires living modified organisms (LMO) intended for direct use as a food or feed or for processing to be ‘identified’ by the designation that they ‘may contain’ LMOs.
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Is Judicial Independence a Useful Concept?
Lewis A. Kornhauser
This chapter has two theses. First, I argue that the confusion over the meaning of judicial independence cannot be eliminated. Second, I argue that judicial independence is not a useful, analytic concept. It does not promote either our understanding of how courts function or the design of desirable judicial institutions. Debate over these issues of understanding and design would advance more quickly if we abandoned the use of the concept: Jurisprudential debates over judicial independence would explicitly address the controversial theories of adjudication that underlie current debates, while inquiries into the effects of various institutional features on judicial performance would proceed without a fruitless diversion into the role of judicial independence. These two theses are related. The ineliminability of definitional issues provides one reason that the concept of judicial independence is not useful. Consequently, the discussion begins with the question of definition. I then proceed to discuss the utility of the concept in social science and constitutional design.
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Democracy in America: A European Perspective on the Millennial Election
Mattias Kumm
There are still many for whom the basic constitutional structure of the United States is regarded as an attractive model for what the European Union ought to become. The attraction of the United States in this respect is obvious. The political structure established by the U.S. Constitution is perceived as having provided a remarkably stable institutional framework over a span of more than two centuries. During this time, the United States was able to develop from little more than a coalition of rebellious colonies into a global power whose cultural appeal, scientific prowess, economic prosperity, political clout, and military might have few if any historical equals. Most important, the U.S. Constitution as it is understood and interpreted today has established a federal system based on the universally appealing principles of liberty, equality, democracy, and the rule of law—the very principles the European Union professes to be based on. From this point of view, when the presidential election gives rise to intense public debate and a barrage of litigation, ultimately resolved by the Supreme Court on constitutional grounds, important lessons of principle promise to be learned. Given the extensive debates in Europe about how to constitutionally organize democracy on the level of the European Union, such lessons would promise to be both timely and useful. There are a variety of claims that undermine the idea that there is anything of interest that could be learned from looking at the United States generally and the events surrounding the 2000 election specifically. They all have in common that they are based on an exceptionalist account of either American democracy or European constitutionalism. First, there are two kinds of exceptionalist claims focusing on political culture. According to these accounts, nothing can be gained by engaging in a comparative endeavor because American democracy is exceptional. American democracy is sustained by a particular political culture that is unique to the United States and that once again became apparent in all its glory (according to one account) or all its monstrosities (according to another account) during the postelection battles of the last presidential election. Second, there are exceptionalist accounts focusing on the institutional structure of the respective constitutional orders. According to the first, the U.S. electoral system is tied to a highly idiosyncratic, historically contingent, constitutionally entrenched procedure, the study of which could not possibly be helpful to illuminate anything except the quirks of American history. According to the second, the European Union is an entity that should not be thought of as a federal structure, nascent or otherwise, because European integration is a project sui generis, whose specific features are not appropriately understood when grafted on to a federalist conceptual map. In the following I briefly describe these positions in greater detail. As will become clear, the 2000 election has thrown light on some basic features of constitutional democracy in federal systems that challenge widely held views about U.S. constitutionalism and undermine exceptionalist accounts of European constitutionalism. As the responses to the election indicate, it is no longer obvious whether the conception of constitutionalism that underlies American constitutionalism today should be conceived as a federal one properly understood, whereas there are no such grounds for doubt on the level of the European Union.
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U.S. Policy on "Female Genital Mutilation": Threat of Economic Pressure Internationally, Enactment of Criminal Sanctions at Home
Holly Maguigan
Surgeries on female genitalia have been performed for at least twenty-five hundred years. Today they occur routinely in forty countries—in Africa, in the southern part of the Arabian Peninsula, and, to a smaller degree, in India, Pakistan, Malaysia, and Indonesia. The World Health Organization estimates that 130 million women and girls have been subjected, at ages ranging from infancy to adulthood, to some form of female genital cutting. Drawing on the experiences of the twenty-eight African countries in which the surgeries are routine, Amnesty International's Zan-Akologo described the reasons for the endurance of the practice: “Though there are no laws that make female circumcision obligatory, the social pressure on women is enormous. In most cases the women in these societies in Africa cooperate with the practice, and continue to force it on the next generation of girls. These women are dependent on men, and therefore they have no alternative but to fall in line with the custom. In those parts of Africa men are still the only ones who make decisions, and it is they who set the standards for women's conduct.” U.S. government sources suggest that as many as 168,000 girls and women in the United States have had their genitals cut or are at risk for the procedures. These are overwhelmingly immigrants or the first-generation daughters of immigrants. Since 1996, the U.S. Congress and the legislatures of fifteen states have passed laws against “female genital mutilation.” Most statutes are criminal only, although some have civil provisions. The question addressed in this chapter is not whether efforts should be made to eliminate the practice. It is, rather, whether these new statutes provide the appropriate tools to combat female genital mutilation (FGM) here or in other countries. Particular attention will be paid to criminal anti-FGM laws. The problem with these statutes is not simply that they are unlikely to keep girls and women safe from the procedure. Rather, and more importantly, the problem is that they are virtually guaranteed to drive FGM underground and increase the danger to those on whom it is performed. It should be noted at the outset that the surgeries themselves vary widely. The least invasive entail either ritual “nicking” or the removal of a small portion of the clitoris. Others involve removal of all or part of the clitoral tissue. In the most significant procedures, practitioners remove the clitoris and labia minora, incise the labia majora, and stitch together the labia majora to cover the urethral and vaginal openings (leaving a small opening for the passage of urine and menstrual blood). Various forms of the first type of female surgery—removal of part of the clitoris--were performed in the United States and the United Kingdom until the 1950s, ostensibly for the purposes of improving female mental health, discouraging lesbianism, and reducing the incidence of masturbation. During those periods the procedures were deemed medical and were fully legal. Now that female genital cutting is identified in this country as the practice of immigrants, however, it has been criminalized. Several terms are used to describe the procedures. The term “female genital mutilation [FGM]” is very common in the United States and used almost exclusively in its criminal context. Indeed, the very term expresses the disapprobation of the procedure. Isabelle Gunning urges the use of “female genital surgeries [FGS]” to reflect the variety of procedures performed. Nahid Toubia, a physician of Sudanese origin, and an activist in the United States and abroad who is opposed to the practice, uses both the terms “female genital mutilation” and “female circumcision” (although she notes that the practice is not analogous to male circumcision). The reasons for her choices are reflected in a statement issued by RAINBO (Research, Action and Information Network for Bodily Integrity of Women), an international advocacy organization which she founded: “Efforts to empower women cannot begin with using language that offends them. . . . We accept that the term female genital mutilation has been too widely used to be rolled back. In fact, we prefer to retain the term FGM at the policy level to remind everyone of the effect of this practice on girls and women. However, we advocate the use of the term female circumcision when dealing with affected individuals, parents, or other community members. . . . It is important that we respect the feelings and beliefs of individuals even as we inform them of facts contrary to these beliefs.” The decision to call the practice FGM for pragmatic and policy reasons, but to refer to it as FC in outreach and education efforts, reflects RAINBO's awareness of the complexity confronting opponents of the practice. It points to the need to choose one's strategy carefully.
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The Design of Marketable Permit Schemes to Control Local and Regional Pollutants
Jonathan Remy Nash and Richard L. Revesz
In recent years, there has been a steady rise in the use of marketable permits in environmental regulation. They have been employed as tools to control both air and water pollution, and have been implemented on local, regional, and national scales. These trading regimes—based upon a single market in emission permits—do not control the distribution of emissions throughout the trading region or prevent the formation of “hot spots” of pollution. In this chapter, we propose a marketable permit scheme that is consistent with the attainment of ambient standards and that does not significantly interfere with the benefits of trading.
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Notes for the Unpublished Supplemental Separate Opinions in Bush v. Gore
Burt Neuborne
These opinions were prepared for discussion in a constitutional law class. They are, of course, wholly fictitious; I have attempted to capture the voice of an opinion, without the use of the usual legal citations and technical arguments. They are designed to explore the legal issues raised in the actual opinion and to provoke discussion on judicial role. They are also designed to rebut the notion that the decisions of the various judges can only be explained by efforts to advance a favored presidential candidate.
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Constitutionalizing Democratic Politics
Richard H. Pildes
Bush v. Gore, for all its uniqueness, is not an isolated event. It is best understood, instead, as the most dramatic crystallization of a deeper, more enduring pattern in the contemporary relationship between democratic politics and constitutional law. This pattern might be called the “constitutionalization of democracy.” Over the last decade or so, powerful litigants – the major political parties, incumbent officeholders, candidates for the presidency—have increasingly raced to the courts and sought to subject the fundamental structure of democratic processes and institutions to constitutional constraint. And they have succeeded: Whether the issue is what kind of election primaries we are to have, or how we are to finance political campaigns, or how effective a role third parties and independent candidates will play, or whether disputed presidential elections will be resolved through political processes (such as in Congress), constitutional law in the las decade has come to play a central—often the dominant—role. Constitutional law now sharply constrains the possibilities for experimentation with the forms of democratic politics; constitutional law now limits the structural changes through which disaffection with the current practices of democratic politics can be given institutional expression. That constitutional law plays some role in overseeing the structures and processes of democracy is not, in itself, a surprise. Since the Supreme Court first held in 1962 that claims involving “political rights” could be resolved in the courts, constitutional law has regulated certain aspects of democratic politics. Representative institutions must be designed in accord with one person, one vote; the right of the adult, resident, non-felon citizens to vote has achieved the status of a fundamental constitutional right; electoral structures cannot be designed to minimize or “dilute” the voting power of certain identifiable groups, such as racial minorities. But these foundational principles from the Court’s initial foray into issues of democracy all rested, as I will show here, on a specific, relatively precise, and quite convincing set of functional justifications for why the Court had come to view constitutional oversight as necessary on selected, discrete issues. What is surprising over the last decade is that the Court now routinely deploys constitutional law to circumscribe the forms democracy can take in situations that bear no relationship to those that had originally justified constitutional intervention. As this essay will show, the Court now almost reflexively acts as if it were appropriate for constitutional law always to provide ready answers as to what makes democracy “best”—without the Court asking any longer whether there are appropriate reasons that democratic politics itself is not the proper forum in which to address those questions. This judicial constitutionalization of democratic politics is, perhaps, the single most important development in constitutional law over the last decade. But this development has attracted little academic or popular notice. Instead, as Judge Richard Posner rightly observes, scholarship on constitutional law and the Supreme Court has remained obsessed for several decades with issues of individual rights and equality. Issues concerning the structures of democratic governance, by contrast, have met with indifference at best, disdain at worst—as if sophisticated thinking has moved beyond formal politics to more “essential” issues of rights and equality. But the kind of democracy we experience is not some pure distillation of organic cultural and political forces. Democratic experience is a product, more than it often realized, of the institutional frameworks and legal rules that structure current democratic arrangements. Nor can we move “beyond” formal democratic politics to some other, more essential domain. For politics and these other domains—be they culture or economics—mutually influence each other. Many people, for example, are aware of the history of racial segregation and of Plessy v. Ferguson. Many fewer, however, understand the history of the massive disfranchisement of black citizens (and poor whites) in the South from 1890-1965 and the importance of Giles v. Harris. Yet for the brief window of time in which Southern blacks could vote, interracial political coalitions emerged; much about political culture and law, as well as social relations, differed in the era in which formal politics was open to black citizens. Segregation would not have endured for so long had black citizens not been expelled in the South, throughout most of the twentieth century, from democratic politics. After Bush v. Gore, the structures, institutions, and ground rules of democracy—and the role of constitutional law in assessing them—can no longer be avoided. If nothing else, Bush v. Gore will shape the agenda of discussion on constitutional law and the Supreme Court for some time. But if we analyze the election decision in isolation from the merging jurisprudence of democracy of which it is but one piece, we will miss what is least singular—and hence most likely lasting—about Bush v. Gore and the vision of democracy it represents. In this essay, I set the stage initially with a description of the broader political and cultural moment in which we seem to exist. I then turn to how the Supreme Court has responded to the challenges to existing democratic practices that this moment has spawned. My aim is first to chronicle this emerging jurisprudence of democracy, then to understand and explain what appears to be driving it. We will then be in a position to assess analytically what the relationship of constitutional law to democratic politics has become—and what it ought to be.
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Disputing Elections
Richard H. Pildes
The most incendiary issue any democratic system can confront might well be the selection of its chief executive when election results are disputed, obscure, and sharply divided. If we consider this issue from the perspective of democratic institutional design, we should anticipate that such situations are likely to arise eventually in any long-running democracy. In America, we have had disputed elections to the Senate and House regularly throughout our history and, on occasion, though not in the peculiar form of the 2000 election, for the presidency. From an ex ante perspective, then, we might ask what institutional structures and legal frameworks we ought to put in place, in advance of this charged moment, that are most likely to produce the most widely acceptable resolution to this potentially most explosive question. But we also now live in an ex post world, for this moment has happened and we are asked to look back and evaluate it: we have watched the American system struggle with this issue and generate a result whose merits—by which I mean whose public acceptance—will be disputed, as the essays in this volume demonstrate, for years to come. In this brief essay, I want to compare an ex ante perspective on disputed presidential elections with the actual institutional arrangements and legal structures that were in place and deployed to resolve, at least formally, the disputed 2000 presidential election. My aim is not so much to praise or condemn the Supreme Court’s resolution. Instead, I want to provide perspective, and, I hope, illumination, on both the general nature of the issue and the specific institutional and legal reasons so much controversy concerning that resolution was and remains inevitable.
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Multiple Regression
Daniel L. Rubinfeld
Multiple regression analysis is a statistical tool for understanding the relationship between two or more variables. Multiple regression involves a variable to be explained—called the dependent variable—and explanatory variables that are thought to produce or be associated with changes in the dependent variable. For example, a multiple regression analysis might estimate the effect of the number of years of work on salary. Salary would be the dependent variable; years of experience would be the explanatory variable. Multiple regression analysis is sometimes well suited to the analysis of date about competing theories in which there are several possible explanations for the relationship among a number of explanatory variables. Multiple regression typically uses a single dependent variable and several explanatory variables to assess the statistical data pertinent to these theories. In a case alleging sex discrimination in salaries, for example, a multiple regression analysis would examine not only sex, but also other explanatory variables such as education and experience. The employer-defendant might use multiple regression to argue that salary is a function of the employee’s education and experience, and the employee-plaintiff might argue that salary is also a function of the individual’s sex. Multiple regression also may be useful (1) in determining whether a particular effect is present; (2) in measuring the magnitude of a particular effect; and (3) in forecasting what a particular effect would be, but for an intervening event. In a patent infringement case, for example, a multiple regression analysis could be used to determine (1) whether the behavior of the alleged infringer affected the price of the patented product; (2) the size of the effect; and (3) what the price of the product would have been had the alleged infringement not occurred. Over the past several decades the use of regression analysis in court has grown widely. Although multiple regression analysis has been used most frequently in cases of sex and race discrimination and antitrust violation, other applications include census undercounts, voting rights, the study of the deterrent effect of the death penalty, rate regulation, and intellectual property. Multiple regression analysis can be a source of valuable scientific testimony in litigation. However, when inappropriately used, regression analysis can confuse important issues while having little, if any, probative value. In EEOC v. Sears, Roebuck & Company, in which Sears was charged with discrimination against women in hiring practices, the Seventh Circuit acknowledged that “[m]ultiple regression analyses, designed to determine the effect of several independent variables on a dependent variable, which in this case is hiring, are an accepted and common method of proving disparate treatment claims.” However, the court affirmed the district court’s findings that the “E.E.O.C.’s regression analyses did not ‘accurately reflect Sears’ complex, nondiscriminatory decision-making processes’” and that the “’E.E.O.C.’s statistical analyses [were] s flawed that they lack[ed] any persuasive value.’” Serious questions also have been raised about the use of multiple regression analysis in census undercount cases and in death penalty cases. Moreover, in interpreting the results of a multiple regression analysis, it is important to distinguish between correlation and causality. Two variables are correlated when the events associated with the variables occur more frequently together than one would expect by chance. For example, if higher salaries are associated with a greater number of years of work experience, and lower salaries are associated with fewer years of experience, there is a positive correlation between salary and number of years of work experience. However, if higher salaries are associated with less experience, and lower salaries are associate with more experience, there is a negative correlation between the two variables. A correlation between two variables does not imply that one event causes the second. Therefore, in making causal inferences, it is important to avoid spurious correlation. Spurious correlation arises when two variables are closely related but bear no causal relationship because they are both caused by a third, unexamined variable. For example, there might be a negative correlation between the age of certain skilled employees of a computer company and their salaries. One should not conclude from this correlation that the employer has necessarily discriminated against the employees on the basis of their age. A third, unexamined variable, such as the level of the employees’ technological skills, could explain difference in productivity and, consequently, differences in salary. Or, consider a patent infringement case in which increased sales of an allegedly infringing product are associate with a lower price of the patented product. This correlation would be spurious if the two products have their own noncompetitive market niches and the lower price is due to a decline in the production costs of the patented product. Pointing to the possibility of a spurious correlation should not be enough to dispose of a statistical argument, however. It may be appropriate to give little weight to such an argument absent a showing that the alleged spurious correlation is either qualitatively or quantitatively substantial. For example, a statistical showing of a relationship between technological skills and worker productivity might be required in the age discrimination example above. Causality cannot be inferred by data analysis alone; rather, one must infer that a causal relationship exists on the basis of an underlying causal theory that explains the relationship between the two variables. Even when an appropriate theory has been identified, causality can never be inferred directly. One must also look for empirical evidence that there is a causal relationship. Conversely, the fact that two variables are correlated does not guarantee the existence of a relationship; it could be that the model—a characterization of the underlying causal theory—does not reflect the correct interplay among the explanatory variables. In fact, the absence or correlation does not guarantee that a causal relationship does not exist. Lack of correlation could occur if (1) there are insufficient data; (2) the date come from inaccurate measurements; (3) the data do not allow multiple causal relationships to be sorted our; or (4) the model is specified wrongly because of the omission of a variable or variables related to the variable of interest. There is a tension between any attempt to reach conclusions with near certainty and the inherently probabilistic nature of multiple regression analysis. In general, statistical analysis involves the formal expression of uncertainty in terms of probabilities. That statistical analysis generated probabilities that there are relationships should not be seen in itself as an argument against the use of statistical evidence. The only alternative might be to use less reliable anecdotal evidence. This chapter addresses a number of procedural and methodological issues that are relevant in considering the admissibility of, and weight to be accorded to, the findings of multiple regression analyses. It also suggests some standards of reporting and analysis that an expert presenting multiple regression analyses might be expected to meet. Section 6-2 discussed research design—how the multiple regression framework can be used to sort out alternative theories about a case. Section 6-3 concentrates on the interpretation of the multiple regression results, from both a statistical and a practical point of view. Section 6-4 briefly discusses the qualifications of experts. Section 6-5 emphasizes procedural aspects associated with the use of the data underlying regression analyses. Finally, the Appendix delves into the multiple regression framework in further detail; it also contains a number of specific examples that illustrate the application of the technique.
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Corpus Delicti
Stephen J. Schulhofer
Corpus delicti literally means the body or substance of the crime. In law the term refers to proof establishing that a crime has occurred. Although misunderstanding about corpus delicti has been common, the term does not refer to a dead body. There is a corpus delicti of robbery, tax evasion, and, indeed, of every criminal offense. Moreover, even in a homicide case, a “dead body” is neither necessary nor sufficient to establish the corpus delicti. Testimony that a ship's passenger pushed the deceased overboard can establish the corpus delicti of murder even if the body is never recovered. Conversely, the body of a child killed in a fire would not establish the corpus delicti of murder, absent proof that the fire was caused by some criminal act. When a failure to prove some fact essential to the charge implies that the offense was not committed by anyone, the courts sometimes say that reversal of the conviction is required by the absence of a corpus delicti. It would be equally accurate, and less mysterious, to say simply that the reversal results from the prosecutor's failure to prove an essential element of the case. The principal significance of corpus delicti is its effect on the admissibility of evidence. Under the traditional rule, still followed in most states, a confession is inadmissible unless there is independent evidence of a corpus delicti. But some American jurisdictions now reject this traditional rule. In federal courts and in several states, a confession is admissible if its trustworthiness is established, even without independent proof of a corpus delicti. Some commentators argue that this approach offers a better way to meet concerns about the truthfulness of a confession.
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Rape: Legal Aspects
Stephen J. Schulhofer
In the eighteenth century, William Blackstone defined rape as “carnal knowledge of a woman forcibly and against her will.” This definition remains in effect in many American jurisdictions, and it has provided the starting point for revisions over the years. The legal aspects of rape include five topics concerned primarily with forcible rape—the purpose of rape law, the punishment for forcible rape, the elements of the offense, evidentiary issues, and practical concerns about enforcement. The sixth topic covered in this entry is nonforcible intercourse with a person under a statutory age of consent (“statutory rape”).
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Attempt
Stephen J. Schulhofer and Dan M. Kahan
To be punishable as a criminal attempt, conduct must consist of an intent to perform an act or to bring about a result that would constitute a crime, together with some substantial steps taken in furtherance of that intent. This article describes the historical development of criminal liability for attempts, the policies served (and disserved) by punishment in attempt cases, and the current scope of liability for attempts in American law.
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Endowment and Inequality
Daniel N. Shaviro
Tax policy literature, particularly that written by lawyers, often cites either income or consumption as an “ideal” tax base—the very thing we want to tax. Warren, for example, embraces the admitted tautology that “the personal income tax follows from, and is justified by, a societal judgment as to the appropriate distribution of income”. If we want to redistribute “income,” then of course it is the right thing to tax—although why it is the thing we want to redistribute remains unclear. On the other side of the debate, Andrews favors a consumption tax because “it ultimately imposes a more uniform burden on consumption, whenever it may occur, than does an [income] tax”. This distinction “keeps the tax from bearing more heavily on one person than another on account of differences in need or taste for particular goods and services, nor or in the future”. As we will see, there may be considerable appeal to Andrews’s argument that mere taste differences should not lead to unequal tax burdens. However, this argument can be taken a step further, as demonstrated in the following examples: 1. Two individuals differ only in their taste for consumption goods; otherwise, their circumstances are the same. One prefers to spend more on clothing, less on food; the other likes high-quality food but does not care so much about clothing. 2. Two individuals have the same wage rates and in all other respects are in similar circumstances. However, one prefers to work long hours in order to purchase more goods; the other prefers less work and therefore accepts having fewer goods. That the two individuals in the first example deserve to bear the same taxes probably seems obvious. We are not likely to regard the differences in taste as relevant to the sharing of tax burdens. Example two is essentially the same, except that the choice is not between food and clothing, but between leisure and goods. Bradford’s reasoning about the firs example, and is extendability to the second, rules out any possibility that consumption, income, or wealth could be the very thing we really want to tax. Consumption taxes burden decisions to work and thus the taste for work (or market consumption), while income and wealth taxes burden work and saving. Estate and gift taxes burden decisions to work, save, and engage in gratuitous transfers. All of these taxes, therefore, penalize tastes that have no obvious distributional relevance, and burden behavior that is not bad in and of itself and does not, at least not as obviously as pollution, impose external burdens on others. The defense of any of these tax bases therefore lies in its capacity to provide a crude proxy for some set of attributes that are relevant to distributive justice but cannot be observed directly. But what are these underlying attributes? While analysts are unlikely to agree on them completely, most would say that they have something to do with inequality. After all, if society did not agree that people who are better off should bear a greater tax burden, it presumably would not object to raising revenue through a uniform head tax (at least where benefit taxation was infeasible). Inequality, therefore, has a prominent place in a variety of views of distributive justice, although under any view it rests at least one “turtle” from the bottom. (I refer to the old story of the woman who claimed that the earth rests on the back of a turtle and, when asked what the turtle rests on, responded that it was “turtles all the way down.”) That is, the move from describing who is better off under some metric to claiming that tax burdens should vary by reason of the differences identified by this metric requires motivation. Many tax policy experts have recognized the conceptual need for a lower-lying distributional “turtle” than merely some definition of a tax base, such as the Haig-Simons income definition. The true, but unobservable, underlying measure that income is thought to represent, for reasons lying at least one more turtle down, can be termed “ability” or “ability to pay.” However, the spirit in which analysts typically discuss this hypothetical measure (or, more often, deliberately do not discuss it) was well illustrated by Simons’s argument that efforts to poke too far behind the supposed objectivity of an income definition “lead…directly back into the utter darkness of ‘ability’ or ‘faculty’ or, as it were, into a rambling uncharted course pointed only by fickle sentiments”. Such “hard-nosed” views notwithstanding, this chapter argues that consideration of the presumed underlying measure of inequality—for which, wealth, income, and consumption are merely rough proxies—is crucial to developing a coherent and defensible view of distributive justice. The following sections attempts to flesh out an underlying measure, which we might call “endowment,” “ability,” or “wage rate.” The third section considers this measure’s possible significance under two leading distributional approaches: utilitarianism, or weighted welfarism, and the liberalism, or liberal egalitarianism, much discussed in recent legal literature about taxation. It argues that conventional rejections of endowment taxation as an orienting idea—usually on the grounds that such taxation would require enslaving a beachcomber who could have been a Wall Street lawyer—are confused in key respects. The last section briefly concludes.
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Can the Hague Judgments Project be Saved?: A Perspective from the United States
Linda J. Silberman
The Hague Judgments Project was at a crossroads as the delegates to a first session of a Diplomatic Conference met in June, 2001 at The Hague. As has been reported, the Preliminary Draft Hague Convention on Jurisdiction and Foreign Judgments encountered formal resistance from the United States delegation and substantial informal criticism in other U.S. circles. This paper explains some of the difficulties that the Draft Convention presents for the United States and proposes some possible compromises for the negotiators at The Hague. It also offers details of an ongoing project undertaken by the American Law Institute (ALI) to address issues of jurisdiction and recognition as a matter of U.S. domestic law and to take account of the numerous federalism issues with respect to any implementation of a convention.
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The Hague Judgments Convention - and Perhaps Beyond
Linda J. Silberman and Andreas F. Lowenfeld
Arthur von Mehren has thought about recognition of foreign country judgments for well over half of his professional life, as an innovative scholar, as a teacher, and as negotiator on behalf of the United States. In the 1970s Arthur tried valiantly to help negotiate a bilateral judgments treaty between the United States and the United Kingdom, building on the invitation in the Brussels Convention (Article 59)3 that by such a treaty domiciliaries of third countries—i.e., the United States—could avoid the situation where, for example, a French plaintiff could secure a judgment against an American domiciliary on an exorbitant basis and then enforce that judgment in Great Britain, where the American (individual or corporation) had assets. Arthur will recall a very long lunch in Cambridge, Massachusetts intended to bring him into direct contact with the British insurance industry, whose leaders were very concerned about potential enforcement of American product liability judgments against British makers of toys or medicines. It was not clear that such a judgment would be denied enforcement absent a treaty, but the British industry, and eventually the British government wanted to make sure that no treaty would require enforcement of such a judgment. Arthur did his best to be understanding, even offering an amendment to the draft being discussed under which the court where enforcement was sought could examine the award of damages in the first forum-presumably by an out-of control American jury—and reduce the award to an amount more in line with awards rendered in its own jurisdiction. Such a provision might well have ended any chance of ratification of the U.S.-British treaty by the United States Senate. But the proposed treaty never got that far-proving once again the truth of Churchill's description of Britain and America as two nations divided by a common language. Arthur was disappointed but not deterred. If it was not possible to achieve a judgments convention one-on-one, why not utilize the skills and prestige of the Hague Conference on Private International Law, which in recent years had achieved substantial success in multilateral conventions on Legalization of Documents, Service of Judicial and Extrajudicial Documents, Taking Evidence Abroad, and Child Abduction. Arthur persuaded the U.S. government to try, and both he and the State Department are still trying. The crowning achievement of Arthur von Mehren's career—if it is achieved—will be the Hague Convention on Jurisdiction and Judgments in Civil and Commercial Matters. As this volume goes to press (Spring 2002) the success of the project is very much in doubt. Many people have already written it off. We think the project is worth saving, and we want in Part II to offer some suggestions for Arthur and his colleagues on both sides of the Atlantic—not as an American wish list, but as a basis for narrowing the gap that now seems to divide the negotiators. In Part III, we describe briefly a project stimulated by the current negotiations that would rationalize judgments practice in the United States even without a successful outcome at The Hague.
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Gambling
Jerome H. Skolnick
Gambling can be defined broadly as participation in any risk-taking activity. In law gambling is defined as a bet or wager (consideration), on a probability game or a sporting event (chance), with the hope of winning a payoff or prize (FCC v. American Broadcasting Co., 347 U.S. 284 (1954)). From a public health perspective, activities such as day trading in stocks, commodities, and futures markets have been said to mimic gambling games. Gambling has never in law or custom been considered inherently evil (malum in se). Why then is betting—or accepting bets—sometimes considered a crime? Reasons that can be singled out include the belief that gambling undermines the work ethic, is destructive of personality, invites fraud and deception, and engenders social decay. Such a view of gambling, although present in most English-speaking countries, is a minority viewpoint, especially in the United States, where a variety of gambling forms are permitted under differing legal regimes. These include casinos, lotteries, wagering on horse or dog races, electric gaming devices and slot machines, jai alai, and Internet gambling.
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Hobbes and the Principle of Publicity
Jeremy Waldron
Richard Flathman’s book Thomas Hobbes has many virtues, not least that it presents a Hobbes concerned above all with the rational integrity of the case that is made for absolute or near-absolute sovereign authority. “It is,” says Hobbes in a passage that Flathman highlights as a celebration of individuality, “unreasonable . . . to require of a man endued with Reason of his own, to follow the Reason of any other man.” Now, in context, this is an observation about the responsibilities of priests and teachers: “[F]or there is none should know better than they, that power is preserved by the same Vertues by which it is acquired; that is to say, by Wisdome, Humility, Clearnesse of Doctrine, and sincerity of Conversation; and not by suppression of the Naturall Sciences, and of the Morality of Naturall Reason; nor by obscure Language; nor by Arrogating to themselves more Knowledge than they make appear; nor by Pious Frauds; nor by such other faults as in the pastors of God’s Church are not only Faults, but also scandalls, apt to make men stumble one time or other upon the suppression of their Authority.” But it applies equally to the prerogatives of the sovereign. It may have been true of the inhabitants of Hobbes’s England that “not one perhaps of ten thousand knew what right any man had to command him.” But the answer was to teach them the basis of that right by guiding them, as active intellects, through reasoning supportive of political obligation that might as well have been their reasoning, rather than requiring them simply to submit passively to conclusions reached as a result of the reasoning of another. In this chapter, I want to take further this theme of respect for individual intellect, so prominent in Richard Flathman’s presentation of Hobbes. I would like to do so, too, in a way that advances Flathman’s agenda of forcing a confrontation (though not necessarily a hostile confrontation) between Hobbes’s thinking and ours, or in the words of Flathman’s editor, “between Hobbes and the architects, critics, reformers, and everyday participants of modern liberal democracies.” The connection is as follows: One of the most interesting positions constitutive of contemporary philosophical liberalism is a view about the relation between political order and truth. Liberals, particularly in the Enlightenment tradition, believe that political order can be sustained without myths or lies, without false consciousness, and without ideology (in the pejorative sense of that term). Enlightenment liberals are committed to what John Rawls has called the “principle of publicity”: A condition of a society’s being well-ordered is that “[t]he political order does not . . . depend on historically accidental or established delusions, or other mistaken beliefs resting on the deceptive appearances of institutions that mislead us as to how they work.” I believe that Thomas Hobbes accepted a version of this principle and that philosophically it is a fact of the first importance about his theory of politics that he did so. The principle of publicity can be applied wholesale or piecemeal. Its piecemeal application amounts to a requirement that particular laws always be accompanied by reasons that show exactly why the law is justified, that is, reasons that show what its purpose is and what assumptions, factual and moral, underlie it. Laws should be persuasive, not merely coercive. Hobbes certainly accepted that: “It belongeth to the Office of a Legislator, . . . to make the reason Perspicuous, why the Law was made.” I want to concentrate, however, on the principle of publicity in its wholesale application, that is, as it applies not just to particular laws but to the whole apparatus of state authority. For it is undeniable that Hobbes also accepted the principle in its wholesale application. He thought it essential for subjects to understand the true grounds of sovereignty, authority, and political obligation and to submit themselves to sovereign authority for the right reasons, not just for any old reason and not just as the upshot of any old propaganda that the sovereign and his counselors concocted. He accepted this, and he regarded his own mission qua philosopher as a contribution to this particular aspect or incident of authority. But it is less clear why Hobbes accepted the principle of publicity. Why did he think it important in a well-ordered society for people to be undeceived about the nature and justification of their political arrangements?
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Judicial Power and Popular Sovereignty
Jeremy Waldron
When the Supreme Court in Marbury v. Madison (1803) set out its answer to the question “whether and act, repugnant to the constitution, can become the law of the land,” Chief Justice John Marshall began from the following premise, which I shall call the principle of popular sovereignty: “[T]he people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness . . .” What is the relationship between this principle and the power that the Court said was vested in the judiciary – the power to interpret the Constitution and to strike down legislation at odds with the Constitution as it interprets it? In this chapter, I would like to investigate various understandings of judicial review in light of the principle of popular sovereignty. I am interested particularly in what commentator refer to as “judicial supremacy”—the idea that the courts have a privileged position in the constitutional scheme and that other branches of government should always defer to the courts’ interpretations of the Constitution, even when their interpretations are controversial and even when they implicate important issues of national policy. I shall argue that judicial supremacy sits ill with the American commitment to popular sovereignty and sometimes comes dangerously close a mythic identification of the Supreme Court with the sovereign entity--the people—who are supposed to be the source of all constitutional authority. The argument I shall make is not intended as a repetition of the familiar democratic case against judicial review. What Alexander Bickel refereed to, delicately but misleadingly, as “the counter-majoritarian difficulty” remains one of the central points of debate in American constitutional theory, but is not my subject here. Democracy is not the same as popular sovereignty and judicial supremacy is independent of—though it nicely complements—the arguments we hear every day about the affront to democracy in allowing a measure passed by an elected legislature to be struck down by a handful of unelected and unaccountable judges. I have argued elsewhere that when a community is divided about whether a legislative measure infringes fundamental rights, the matter should be settled by deliberation and majority voting among the people or their representatives and not by deliberation and majority voting among nine unelected justices. In this chapter, I will suspend that attack. Accepting the legitimacy of judicial review (for the sake of argument), I want to ask whether a particular form of that practice—a form pervaded by assertions of and deference to judicial supremacy—can be reconciled with the popular-sovereignty foundations of American constitutionalism.
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Justice
Jeremy Waldron
Editors Ira Katznelson and Helen V. Milner of Columbia University sought to “reflect the vibrant, often contested, diversity of political science while chronicling the past decade's scholarship and prompting thought about future directions.” Breaking away from a traditional organization around the four major fields of political science, the editors chose to create a framework that focuses first on the state, followed by democracy, then agency, and concluding with means of inquiry. This handsome, clothbound volume is an important resource for all scholars interested in reading across fields and includes an essential unified bibliography.
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Legal and Political Philosophy
Jeremy Waldron
This article deals with the relation between the subject matter—law as an aspect of politics—that seems to dictate the relation between disciplines. It discusses political culture considering the role that judges play in articulating public values. It mentions that a comprehensive study of political institutions must pay attention to law. This article describes briefly an array of connections between legal and political philosophy. It looks at which laws should be enacted, what decisions upheld and what decisions overruled, what constitutional amendments should be contemplated, and what general schemes for law reform should be adopted. This article further discusses the importance of the rules of recognition in Hobbes's theory. Finally, the article ends with a view that political philosophy fades into moral philosophy on the one hand, and on the other hand it is associated with something slightly different called political theory.
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