If a Theory Tends Toward Abuse, It's Probably a Bad Theory

Over at the Originalism Blog, David Weisberg writes about Michael Ramsey's post arguing that originalism has constrained the Supreme Court from actively outlawing abortion on Constitutional grounds. I criticized Ramsey's post here.

Ramsey was responding to Paul Waldman, who wrote in the Washington Post that Supreme Court nominees lied when they testified at their confirmation hearings that originalism was a neutral judicial philosophy. As Weisberg characterizes it:

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Originalists often defend their theory against criticism that judges and Justices fail to properly implement it by claiming that this a problem with practice rather than theory. Some have gone so far as to argue that originalism as a standard should be entirely divorced from considerations of implementation.  

Weisberg returns to this theme later in his post:

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

Both of the claims Weisberg makes fail to make a resounding case for originalism.

If an interpretive theory tends toward abuse, it is probably a bad theory. A theory of constitutional interpretation may, by its nature, lend itself to misapplication or use as a cover for political goals. It's a blanket assumption for most originalists that the broad family of theories that they label "living constitutionalism" (read: just about anything other than originalism), are such theories. Living constitutionalism tends to result in its adherents simply applying their policy preferences rather than engaging in interpretation. A substantial component of originalism's popular appeal is that it supposedly sidesteps this problem. The original public meaning of the Constitution is a verifiable Truth that can guide decisionmakers and prevent them from resorting to deciding cases based on their political whims. 

To be sure, this characterization of originalism versus living constitutionalism is an oversimplification of the academic literature. Much has been written by academics on various sides of the debate arguing for other normative reasons to accept originalism over alternate theories. But this discussion is largely isolated in the academic sphere. In politics and popular discussion, originalism continues to be praised for its constraining power--how it prevents "activist" judges from "legislating from the bench." At least, this is how originalism is praised when it is not used as a barely-concealed synonym for promising conservative results.

If originalism gets its appeal (or a substantial portion of its appeal) from its ability to constrain judges from deciding cases based on policy preferences, then it is concerning if judges use the theory as a cover to reach decisions based on political preferences. This is supposed to be the outcome that originalism should prevent, after all. Weisberg claims that this type of criticism can be leveled against practitioners of any theory, but this isn't always the case. Some theories of interpretation may call for readings of constitutional provisions that lead to certain types of policy outcomes or that have certain practical results. Such an approach would be unacceptably political if explicitly employed by a self-proclaimed originalist, but it defines the approach of the other interpreter. A theory of interpretation that largely is based on policy considerations is not mis-implemented when a judge decides cases based on those considerations. There may be other reasons for disliking the theory--but disingenuous implementation and a lack of transparency is not one of them.

But politicized decision-making is a problem for theories that purport to be neutral--particularly for theories like originalism that gain much of their popular appeal from claiming to be neutral. If a theory, by its nature, tends to be abused in practice--if, when implemented, it consistently results in decisions in line with political preferences rather than its proclaimed neutral principles--this is a problem for the theory. And as much as the theory's proponents may point to instances of misapplication of the theory as problems with judicial actors rather than the theory itself, these instances are evidence that the theory itself tends toward misapplication and abuse. If a purportedly neutral theory ends up being misapplied most of the time, that's a reason to have second thoughts about the theory itself. After all, all of this theorizing about law and interpretation doesn't have an impact on the real world until a court applies the theory.

I've argued elsewhere that originalism tends toward abuse--primarily to the extent that it cannot be rigorously and feasibly implemented, and that this leads to decisions based on other, largely political, considerations. Those like Weisberg who would dismiss this criticism as a problem with practitioners rather than the theory itself forget that law is shaped and enforced by practitioners. Losing this perspective all too often results in ignoring reality for the sake of theory and failing to appreciate the real world implications and consequences that motivate these discussions in the first place.

Bray: "On Legal Doctrines That Do Many Things"

Through Lawrence Solum's Legal Theory Blog, I learned of this excellent essay that Samuel Bray recently posted on SSRN. Its title is On Doctrines That Do Many Things. Here is the abstract:

Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. This distinction also appears in legal doctrines. Some do one thing and are meant to do it very well. Other doctrines do many different things. They serve multiple functions, though perhaps all imperfectly. Indeed, this is often a basis for criticism. Scholars have criticized many legal doctrines -- from the constructive trust to the Erie doctrine, from the irreparable injury rule to the standing requirement, from the collateral source doctrine to strict scrutiny -- on the grounds that they serve multiple purposes and are therefore incoherent. By contrast, judges seem to prefer these multi-function doctrines. They resist the scholarly projects of deconstruction and specialization. This Essay considers that contrast in perspective, and it explores the differences between single-function and multi-function doctrines. These differences include the type of decisions that must be made, the possibility of expertise, adaptability over time, and the relative burdens on the designer and the user.

Bray's essay is approachable, interesting, and enlightening. It is only nine pages long. I'm posting this on the eve of a holiday weekend. You have no excuse not to read the whole thing.

Finally, Some Useful Scholarship on the "Smell" of Law

From Lawrence Solum's Legal Theory Blog, I learned about this article, What is the Smell of Law? First Assumptions for the Semiotics of Juridical 'Matter,' by Maria Francisca Carneiro, Eliseu Raphael Venturi, and Laércio A. Becker. Here is the abstract:

This article is a semiological approach to a possible smell of Law, considering that the area of semiotics may include any of the five senses. Based on the perception of Law being represented by the Latin expression "Fumus boni juris", we conjecture here if the smell of Law would be the smell of smoke, also describing its structures. From that point on, we discussed the structures of the juridical matter.

For good measure, here's a paragraph from page six of the article:

The aroma of law is smelled before the sentence. Just think of the “smoke of a good right”. Well, the smoke (“fumus”) is not a gas, but a colloid, solid particles (micelles) in the air (“undone”, cf. remarkable image created by Marshall Berman), in a Brownian movement that is only observable thanks to the Tyndall effect. The smoke is a dissipative structure, related to the chaos theory (Prigogine). The Brownian movement is usually chaotic, which apparently means that the semiotics of the “smell of law” would in fact allow for an approach using the theory of dissipative structures. The theory of dissipative structures and the Principle of order through fluctuation contributed to the creation of a new mindset. The following aspects stand out in this new perspective: history, unpredictability, interpretation, spontaneity, disorder, creativity, accident and self-organization. This theory also states that the thought is always in process. It is temporary, not stable or fixed. Similar to the temporary restraining order that is based on “fumus”: temporary, unstable, subject to procedural fluctuations (and the procedural path is not a straight one, but one filled with different circumstances, therefore, fractal, that is, chaotic) that may repeal it or suspend it. 

Chief Justice Roberts has denounced legal scholarship as being too esoteric and disconnected from the practice of law. It is good to see that scholarship like Carnerio, Venturi, and Becker's paper exists to prove him wrong.

Baude's Reply on Zombie Federalism

A while ago, I posted a response to Will Baude's paper on Zombie Federalism. There, I argued that Baude's claim that states should decide whether zombies are "persons" was flawed because this approach could undermine a strong federal approach to the zombie menace, which I describe in this essay.

Baude responded to my argument here. He writes:

First, Smith’s essay automatically assumes that all zombies will be evil enemies of the human race. Maybe that is true, but what if it is not? And given that most of us do not believe in zombies in the first place, how much confidence should we give to our beliefs about what nonexistent zombies would be like if they did exist? 

Second, if Smith is right that all zombies would be an inherent threat to humanity, there is nothing to fear from federalism. No U.S. state would want to enable the decimation of the human race, and so no state would grant rights to evil zombies. 

Third, that means that zombie federalism matters if, and only if, there is disagreement, at the state level, about whether the newly discovered zombies really are evil. And in the case of disagreement on such a fundamental, existential question, why should we be so sure that we — or really, Congress, the president and the Supreme Court — know the right answer ex ante? Surely the federal government needs and has the power to manage spillovers, but that does not automatically imply a top-down answer to the hard fundamental questions. 

The one serious point is that much of the above applies, mutatis mutandis, to other cases of disagreement over fundamental questions.

The ZombieLaw Blog covers this discussion and adds some points on the matter here. I am proud to point out that a "zombified" image of me appears in that post as well. My colleague, Seth Fortin, points out that this debate has some interesting implications for government policies addressing race.

Baude raises some interesting points. In my capacity as the author of an essay where I urge the use of federal criminal law to prosecute the undead, I will stick by my guns that zombies will be evil. I would also argue that we can be sure that Congress knows the right answer to the zombie problem because Congress has already enacted the right answer into law in the form of broad federal criminal laws rife with strict liability crimes and mandatory restitution requirements.

I admit, however, that I may have been too quick to conclude that states will grant rights to zombies if they are given the freedom to do so. Most people will probably agree that zombies are dangerous, and will refuse to support policies granting personhood to zombies. Those people who feel a misguided sympathy toward zombies are likely to soon find themselves among the ranks of the undead. In this respect, Baude makes an interesting and important point about federalism arguments.

Banning Cruelty

Richard Fisher has a very interesting article at BBC Future entitled, Is it OK to Torture or Murder a Robot?  While the article begins with a discussion of studies of people's willingness and reactions to simulated harm and murder of robots, the article branches into a discussion of laws and regulations that ban cruel treatment in general, or treatment that normalizes behavior that society recognizes as harmful.

The article recounts an experiment run by Kate Darling, a researcher at MIT, who gave people cute-looking dinosaur robots that behaved like "helpless newborn pupp[ies]."  After allowing people to interact with the robots for a time, Darling asked that the participants destroy their robots.  This request was met with widespread resistance by the group, requiring Darling to ultimately reach an ultimatum that one robot needed to be sacrificed to protect the rest -- a request that was reluctantly met.

The article recounts Darling's reaction to this result, and its broader implications:

Darling, however, believes that we could go further than a few ethical guidelines. We may need to protect “robot rights” in our legal systems, she says. 

If this sounds sound absurd, Darling points out that there are precedents from animal cruelty laws. Why exactly do we have legal protection for animals? Is it simply because they can suffer? If that’s true, then Darling questions why we have strong laws to protect some animals, but not others. Many people are happy to eat animals kept in awful conditions on industrial farms or to crush an insect under their foot, yet would be aghast at mistreatment of their next-door neighbour’s cat, or seeing a whale harvested for meat. 

The reason, says Darling, could be that we create laws when we recognise their suffering as similar to our own. Perhaps the main reason we created many of these laws is because we don’t like to see the act of cruelty. It’s less about the animal’s experience and more about our own emotional pain. So, even though robots are machines, Darling argues that there may be a point beyond which the performance of cruelty – rather than its consequences – is too uncomfortable to tolerate.

Fisher goes on to note other laws that ban behavior that is viewed as cruel, or that normalizes cruel behavior.  He notes that bans on E-Cigarettes in public places persist despite the lack of health consequences to bystanders because this behavior normalizes public smoking.  And while simulating illegal activities such as rape or pedophilia with robots is not (yet) illegal, the thought of such activity seems to raise an instinctive negative reaction.

I think that Fisher raises questions that are important now, and that will become far more important as technology continues to develop.  While certain examples of carrying out illegal activities with robots are not yet illegal, as technology develops to the point where these robots are widely and cheaply available, the law may indeed develop to outlaw certain behaviors towards these robots.

And when technology does reach this point, will the law develop to make cruel treatment of robots illegal?  Will there be a rational basis for these laws?  How "human" will a robot need to appear in order for these laws to apply?  Would laws be correct to treat unsophisticated robots that look and act like humans more sympathetically than robots that do not appear human, but that have much more complex programming?

All of these questions seem forward-thinking, and, as stated, they don't have many current implications.  But the intuitions behind these questions seem to inform some of our current laws and regulation trends.  Asking and answering these questions may help us unearth and examine intuitions that underlie our current policies.

First Amendment Overbreadth vs. Fourth Amendment Exclusion and Good Faith

Under the overbreadth doctrine, a defendant who is convicted under a law that in some situations may violate the First Amendment can challenge her conviction on the ground that the law is overbroad.  This means that even if the defendant’s conduct is not protected by the First Amendment, the defendant’s conviction for this conduct can be overturned if she can successfully argue that the law under which she was convicted is overbroad.  The overbreadth doctrine is justified on the ground that those who would engage in protected speech that is outlawed by an overbroad statute would be chilled from this speech and would therefore never be convicted and challenge the law in the first place.  The overbreadth doctrine helps assure that laws that violate the First Amendment will be overturned by widening the scope of those who can challenge the law and by providing the incentive of a conviction reversal for those defendants who challenge the law. 

Compare this doctrine with the exclusionary rule and the good faith exception to this rule in Fourth Amendment law.  Under the exclusionary rule, if a search is found to violate the Fourth Amendment, the evidence the search uncovers is excluded from evidence.  The exclusionary rule is based on deterring peace officers from violating suspects’ rights by ensuring that evidence uncovered through a Fourth Amendment violation will be excluded at trial.  The argument behind the good faith exception is that officers who act in reliance on statutes or precedents are following the rules and not engaging in the abuse that the exclusionary rule is meant to prevent.  In Davis v. United States, 131 S.Ct. 2419 (2011), the Supreme Court held that “Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.”  Davis is part of a line of good faith cases that begins with United States v. Leon (1984) which allowed evidence from a search in “objectively reasonable reliance” on a search warrant that was later found invalid (United States v. Leon 468 U.S. 897)  These cases also include Illinois v. Krull, where the court held that the exclusionary rule should not apply to searches done by police officers who act in reasonable reliance on statutes that are later found invalid (Illinois v. Krull, 480 U.S. 340 (1987)). 

The justification for the good faith exception does not address the point that police behavior may still have an abusive effect even if it is sanctioned by precedent or statute.  There also seems to be no acknowledgment of the point that applying the exclusionary rule may get the attentions of judges and legislators when they are drafting laws and opinions and prompt them to be more cautious in the future.   

Under the good faith rule, it would seem that if a defendant whose Fourth Amendment rights were violated successfully challenges her conviction on this basis, resulting in the overturning of the unconstitutional law or precedent that justified the search, the evidence from that search would still be admitted against the defendant because it was obtained in good faith.  Contrast this with the end result of an overbreadth challenge: a defendant whose own conduct is not protected by the First Amendment, and therefore whose rights are not violated by the conviction, can challenge the overall law on the basis of the First Amendment and, if successful, her conviction is overturned.  

Both of these amendments textually prohibit government actions, but the two sets of doctrine each has spawned seem worlds apart. These two approaches indicate how the Court seems willing to take proactive measures to protect First Amendment rights, but not so much when it comes to the Fourth Amendment.

Exploring Dicta

Black’s Law Dictionary defines “obiter dictum” as “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”  This phrase is commonly shortened to “dictum” or its plural, “dicta.”  The portion of this definition that I would like to focus on is “unnecessary to the decision in the case and therefore not precedential.”

I won’t immediately conclude that Black’s Law Dictionary is incorrect.  Many courts seem to use this definition or a variation of it when describing dicta, so Black’s Law Dictionary correctly states the commonly accepted definition of the term.  However, while this definition is popular, it is wrong, or in the very least, misleading.

Many decisions reach a result for multiple sufficient reasons.  It would seem very odd to conclude that a decision has no precedential value simply because there are two sufficient reasons to reach that decision.  Quite the contrary: the explanation of multiple reasons signals that this opinion is particularly thorough and well-developed – a far cry from something that should be disregarded as not precedential.  The definition of dicta, however, compels the rejection of the full opinion, since the existence of multiple sufficient reasons for an outcome renders neither reason necessary (and unnecessary statements are not precedential).

Courts recognize that this would be crazy, and have thankfully qualified the definition of dictum.  The California Supreme Court, for instance, noted that “where two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other.”  (Southern California Ch. Assoc. Builders v. California Apprenticeship Council, 841 P.2d 1011, 1015 (Cal. 1992)).  Despite this fortunate qualification, the overly simple definition that identifies “dictum” with “unnecessary” is still likely to create confusion. 

A better approach would be to define dicta as those statements are comments that are “not necessary and not sufficient to reach a result, or those statements that are affirmatively labeled as dicta (or peripheral) by the court issuing the opinion.”  This approach would prevent multiple sufficient reasons from being labeled as dicta.  This approach would also grant courts the ability make broad statements without the fear that these statements will veer into the realm of dicta, so long as the courts qualify these statements.

Admittedly, this is a rough and preliminary outline of a definition of dicta, but I think it already has several advantages over the popular approach that Black’s Law Dictionary espouses.  There have been more thorough attempts to define dicta, including this impressive 2005 article by Michael Abramowicz and Maxwell Stearns that defines holdings as "propositions along the chosen decisional path or paths of reasoning that paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment."  Non-holding propositions are dicta.

I don't immediately see any troubles with this alternative definition, but I do want to flag another article by David Klein and Neal Devins that should underlie any discussion of dicta.  Even if a court recognizes a statement as dictum, that court may still give that statement full precedential value.  This happens a great deal, argue Klein & Devins, which casts doubt on the overall implications of the dicta/holding distinction.