Volume 156

Responses

Scholars are accustomed to thinking about family privacy in terms of geometry. The allocation of public and private power in domestic life is classically diagramed as a triangle, representing the separate interests of parent, child, and the state. Parental prerogative in raising children, on one leg of the triangle, is offset by another leg representing the state’s parens patriae power to ensure the basic welfare of children and their development into productive citizens.

In Between Home and School, Laura Rosenbury intriguingly contends that this geometry obscures a broader and important geography of family privacy. Family law, she argues, tends to relate questions of authority over childrearing to the locations in which it occurs. At home, parents rule the roost; their authority within the sanctity of the home is protected by a robust constitutional doctrine of parental rights that gives way to state control only in cases of abuse or neglect. At school, by contrast, state officials call the shots and parents have no real grounds to object. A fundamental shortcoming of this binary doctrine, she contends, is that it makes no provision for a great deal of childrearing that takes place in locations other than home and school—in summer camps, church groups, social organizations, day care centers, and so on. Professor Rosenbury points out that the socialization of children that occurs in these “between” locations is significant, both for children and for society, and she calls for a clearer articulation of the legal principles respecting childrearing authority in these spaces.

Recent pieces by Professors Gil Seinfeld and Trevor Morrison criticize the Supreme Court’s complete preemption doctrine as misguided and unconstitutional, respectively. Professor Seinfeld suggests reforming the doctrine around field preemption, and Professor Morrison rejects complete preemption as inconsistent with separation of powers. This response defends the Supreme Court’s doctrine as it currently stands: A state law claim arises under federal law (and so may be removed to federal court) when a federal statute both preempts the claim and supplies an exclusive federal remedy. This doctrine is a sensible application of the well-pleaded complaint rule that prevents improper circumvention of federal question jurisdiction.

My disagreement with Professors Seinfeld and Morrison stems from their characterization of the complete preemption doctrine. Both argue that the doctrine creates an exception to the well-pleadedcomplaint rule that allows courts to consider federal law defenses in deciding federal question jurisdiction. Conversely, defenders of the doctrine have called it (properly, I believe) a “corollary” to the wellpleaded complaint rule that simply recharacterizes preempted state law claims according to their true federal nature. While the difference between exception and corollary may seem semantic, it goes to the heart of the Seinfeld and Morrison arguments. For Professor Seinfeld, the distinction exposes an unexplained gap in the Court’s logic: Why make an exception to the well-pleaded complaint rule for the defense of complete preemption but not for other federal law defenses? For Professor Morrison, the judicially created exception violates separation of powers: Congress, not the federal courts, is authorized to expand federal court jurisdiction.

In his provocative and insightful article, The Doctrinal Unity of Alternative Liability and Market-Share Liability, Professor Mark Geistfeld proffers several interesting theses about market-share liability, causation, and evidence. Three of the more moderate theses are:

  1. Cases like Sindell v. Abbott Laboratories need not be understood as supplanting causation-based liability with risk-creation liability.
  2. Evidentiary considerations in fact played a leading role in Sindell, and, if properly interpreted, could explain both Sindell and certain forms of market-share liability in a manner that fully retains traditional causation notion rules, and does not depend on any novel risk-creation principles.
  3. The rationale underlying Sindell and certain forms of market-share liability shares a great deal with the principles underlying Summers v. Tice, which is regarded as quite uncontroversial.

I agree with all three of these theses. Indeed, I, along with Professor Arthur Ripstein, defended these claims about Sindell, Summers, market-share liability, and alternative liability several years ago, in an article from which Professor Geistfeld quotes approvingly. Professor Geistfeld goes well beyond the claims in that article, however, advancing a proposal that is far reaching in its implications for law revision, and profound in its theoretical import.

As with any social movement, it is impossible to speak simply of “the goals” of the American disability rights movement. The movement embraces an array of different people, with different disabilities, ideologies, and interests. It therefore has a multiplicity of different goals, which are sometimes in tension with each other. But if there is one goal that has achieved near-consensus status among disability rights supporters, the goal of integration is a strong candidate. Disability rights activists have frequently argued against isolating people with disabilities within disability-only institutions; rather, activists wish to ensure that people with disabilities are fully integrated into the nation’s economic and civic life. The major disability rights laws—the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA)—reflect this strong support of integration.

When as prominent a scholar and disability rights supporter as Ruth Colker writes an article questioning the IDEA’s individualized integration presumption, then, it is a major event. Professor Colker’s article is admirably driven by the Enlightenment sensibility that facts, and not abstract ideology, should drive policy. She is quite correct, in my view, that the disability rights movement does itself a disservice if it ignores the lessons of experience and clings to ideologically-driven policies that have not succeeded. Professor Colker has begun an important conversation—one that should be engaged critically and vigorously.

Nonetheless, Professor Colker has not convinced me. Her article fails to establish that the IDEA’s individualized integration presumption imposes significant costs, and she seems to downplay significant benefits of that presumption. As currently framed, the individualized integration presumption does not prevent a school district from providing a separate placement to a child with a disability when that is truly the best option for her. It merely requires the school district to demonstrate that its chosen course is, in fact, the best option. That burden, it seems to me, is fully justified. Teachers and school officials too often simply find it easier to deal with people who are different by putting them aside in “special” settings rather than implementing the changes necessary to make the regular settings more accessible. This is a recurring problem in disability rights law, and a number of Professor Colker’s examples of the supposed failure of integration seem instead to reflect the education system’s refusal to provide true integration. In the remainder of this essay, I will elaborate on these points.

The term “executive review” is a bland phrase for a disturbing concept. The concept maintains that an official may lawfully resist the command of one who is otherwise a lawful superior in the name of a higher law. The oxymoronic ring to this phrase—lawful resistance to lawful authority—hints at a dilemma.

Within the context of an unambiguous hierarchy, we expect bureaucrats and other executives to carry out unambiguous commands given by their superiors. It seems to violate the essence of bureaucratic legality to excuse these officials from their duty to execute the will of their acknowledged superiors through the invocation of gauzy notions of equality, due process, or similarly vague constitutional rhetoric. However, even the most rigidly constrained official must resist commands that flout ordinary notions of decency: the Nuremberg defense of “just following orders” is unacceptable even for the lowliest of enlisted men and women.

“Just following orders” is indeed the essence of the problem: when is just following orders all that justice allows?

In The Disability Integration Presumption: Thirty Years Later, Professor Ruth Colker offers a revisionist interpretation of the part of the federal special education law that requires:

To the maximum extent appropriate, children with disabilities . . . [must be] educated with children who are not disabled, and [that] special classes, separate schooling, or other removal of children with disabilities from the regular educational environment [must] occur[] only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Professor Colker would not apply this integration presumption, or would apply it only in the weakest possible form, when the school district complies with its additional obligation under the federal regulations to offer a continuum of services—regular classes, special classes, special school, home instruction, instruction in hospitals and institutions—and when the district provides for supplementary services, such as resource room or itinerant teachers, to be delivered in regular class placements.

In this Response, I contend that Professor Colker’s revision is unsupported and would be unwise. But that is not to say that a new way of looking at the integration presumption is wholly out of order. The integration presumption should not be applied in a simple-minded way to say that general education is always best under all circumstances. Instead, the presumption should operate as a presumption ought to: in the absence of other evidence, it should be the rule. If the school is arguing for integration, the presumption ought to carry some, though not very great, weight. If the parent is arguing for integration, the presumption should be much stronger. More importantly, the second half of the language of the statutory provision embodying the presumption should be taken seriously. Separate classes should be used only when supplemental services cannot make general education work for a given child. The emphasis should be on the services, and the services should be broadly defined to include such things as co-teaching by special education professionals, aide services, assistive technology, behavior intervention, and initiatives to prevent harassment and mistreatment by teachers and peers. The services should be intense and individualized. When they are delivered separately, they should be temporary or provided outside of the regular school day.

This Response will first summarize and answer Professor Colker’s contentions. Second, it will suggest what the focus of the discussion ought to be, that is, which services and protections are being offered to educate a child within general education. Finally, it will suggest that a more nuanced approach to integration fits well with the broader reform of special education law.

To the lawyers and judges who work in the criminal justice system, plea bargaining seems an efficient, fair, and perhaps even necessary means of resolving the ever-increasing number of criminal cases they face. However, to those who view plea bargaining from the outside, the practice appears unseemly at best, and at worst, a profound threat to the system’s goals of finding the truth and doing justice. Yet persistent outsider criticism—much of it emanating from the legal academy—has failed to weaken plea bargaining’s hold. As a result, most of the recent scholarship on plea bargaining starts with the assumption that plea bargaining is here to stay; the current agenda is thus one of reform, not abolition.

The turn to incrementalism, however, presents an important theoretical challenge. Once one abandons a categorical rejection of plea bargaining as inherently coercive, fatally inconsistent with the criminal justice system’s purpose of moral condemnation, or toxic to the effective functioning of the adversarial process, then one must develop a more complicated normative framework that is capable of endorsing some plea deals while disapproving of others. Such a framework must be true, on the one hand, to the lived experience of the criminal justice system’s insiders, recognizing the reality that most defendants are guilty, few cases present genuine disputes of material fact, and mounting caseloads require expedited procedures. At the same time, that framework must acknowledge the deeply felt intuition of outsiders that, for all of its efficiency, something profoundly important that goes to the heart of what we mean by “criminal justice” has been lost in the move from trials to deals. For all of its creativity and insight, the new generation of plea bargaining scholarship has yet to meet this challenge in a fully satisfactory manner.

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more.

Should we be worried about this? As an institutional matter, the answer is a firm “probably.” Trials do many things, only one of which is to give a criminal defendant the means to put the government to its proof before an impartial jury of his peers. After all, jurors do double service; they serve not only as triers of fact but also as dragooned witnesses to a criminal justice process that—but for a handful of well-publicized “celebrity” cases and the many fake cases on television—gets all too little attention. Trials also give us a (small) chance to address, or at least assess, the extraordinary agency problem that bedevils a low-visibility system in which advocates for both sides—defense lawyers and prosecutors—can hide their sloth or inadequacy through plea bargains. To be sure, the constitutional standards for ineffective assistance of counsel at trial are all too low. But at least the presence of a judge and a defendant, a lawyer’s own self-respect, and the creation of a record that goes far beyond a guilty-plea allocution, provide a starting point for monitoring and review. Trials also raise the likelihood that prosecutors will adequately monitor and review the work of the investigative agents or police officers on whose work they must rely. In addition, trials (may) enlighten the negotiating that occurs in its shadow. Finally, trials give some (perhaps dim) promise that the priorities and concerns of the community will be internalized by courtroom actors.

It is no secret that trials are a dwindling feature of the American legal landscape. In state courts, both the absolute number of civil and criminal trials and the percentage of civil and criminal cases resolved by trial declined markedly in the past quarter century. The downward trends are even more pronounced in the federal system. In federal courts, the percentage of civil cases concluded by either a bench or jury trial dropped from 11.5% in 1962 to 1.8% in 2002. Between 1980 and 2002, the federal criminal trial rate plummeted from 23% to 4.8%. Not only are both state and federal trendlines down, but the number and percentage of civil and criminal cases that go to trial are now so small that a cottage industry has arisen to study the “vanishing trial.”

Professor Ronald Wright has opened a new subfield in the vanishing trial genre by noticing and perceptively analyzing the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased. In seeking explanations for what he calls “the end of innocence,” Professor Wright looks primarily to factors that can be quantified and included in a regression analysis. In what follows, I have little but admiration to offer for his impressive quantitative work. Likewise, I concur with Professor Wright’s conclusion that one significant factor driving down both federal trial and acquittal rates is the government’s use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. Indeed, in Part I of this Response, I offer a bit of additional evidence to support that proposition.

That said, I am not entirely convinced that Professor Wright’s proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. In Parts II and III of this Response, I suggest that acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species, particularly in U.S. Attorneys’ Offices. Even where those exotic creatures still roam, the system they inhabit provides ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.

I conclude by wondering if the slow extinction of the federal criminal trial lawyer may be having deleterious effects that extend beyond the declining frequency of federal criminal trials and acquittals.

In Property Outlaws, Eduardo Peñalver and Sonia Katyal set out an ambitious goal. Challenging both popular and legal assumptions, they attempt to reshape the image of those who deliberately violate the property rights of others. The gist of their argument is that these lawbreakers are not villains, but heroes—and that this is true regardless of whether we consider their actions from a social, economic, or legal point of view.

This agenda is a tall order. Lawbreakers generally are not a favored segment of society, and property laws—which provide a deeply felt need for individual security—would seem to be particularly important to uphold. Indeed, the overwhelming image of property lawbreakers is negative. As Peñalver and Katyal acknowledge, a trespasser in popular culture and common law is a “transgressor, a law-breaker; a wrong-doer, [a] sinner, [an] offender.” Indeed, “[i]n early modern England, landowners frequently left ‘man traps’ and ‘spring guns’ along boundary lines to discourage trespass on their lands.” Although the law might discourage such deadly self-help measures today, the idea that a trespasser is a wrongdoer who gets what he deserves is still immortalized in the myths of popular culture and in the spirit of the law.

I am a descendant of property outlaws. In 1856, my great-great-great grandfather Robert Fowler, an English immigrant, moved his family to the Cherokee Neutral Lands in the southeastern corner of the Kansas Territory. As the appellation suggests, however, Grandpa Bob was not supposed to be there. The Neutral Lands—a twenty-five-mile-wide strip of land extending along fifty miles of the Missouri border north of the Oklahoma-Kansas state line—were established as a buffer zone between white settlers and Native Americans in an 1825 treaty with the Osage; the treaty prohibited all settlement in the area. A decade later, another treaty conveyed the Neutral Lands to the Cherokee Nation, again on the condition that it remain people-free. This prohibition did not deter as many as three thousand white settlers from moving there in the decade leading up to the Civil War. In 1860, the federal government undertook to remove them. Moving north, soldiers burned farms and evicted families, stopping for the winter less than a mile from the Fowler settlement. Luckily (for Grandpa Bob), the Civil War intervened, and the soldiers were recalled from their eviction duties to fight more important battles. During the war, another group of property outlaws—this time a band of Confederate-sympathizing Missouri Bushwhackers and their Cherokee allies—also sought to evict the settlers from the Neutral Lands. Over the course of a month, the pillaging band drove more than sixty families from their homes before Union troops killed their ringleader, an unsavory character named John Matthews. Again, Robert Fowler emerged unscathed (although family lore has it that he sent his family to hide in a nearby creek bed).

In Property Outlaws, Eduardo Peñalver and Sonia Katyal provocatively argue that the violation of property laws can enhance the social order. Using examples that include the settlement of the American West, lunch counter sit-ins, and urban squatting, Peñalver and Katyal maintain that the law’s proper development depends in some measure on the purposeful crossing of property boundaries. While these breaches disrupt order in the short run, Peñalver and Katyal suggest that they ultimately produce a more stable legal regime. As the authors put it, “[T]he apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.” In short, the authors present a case for “order with outlaws.”

Peñalver and Katyal make an extremely important contribution to legal scholarship by identifying and examining potential benefits embedded in what is usually a much-maligned activity—breaking property laws. Their exploration and synthesis of different lawbreaking contexts is creative, far ranging, and theoretically rich, and their taxonomy of outlaws adds a great deal of conceptual clarity. Although the normative payoff of the project has yet to be fully articulated, the article’s analysis underscores a central challenge: because most property violations are damaging, we need some way to distinguish socially valuable boundary crossings from socially destructive ones. The authors suggest that ex post determinations may be able to perform this sorting function, but this move only defers, rather than eliminates, the need for analytic guidance. Building on what I view as the article’s most compelling theme—the information-generating function of lawbreaking—I will suggest one way of approaching the question.

For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in a previously identified (“relevant”) market. She goes on to propose that this principle be applied exogenously in determining the structure of copyright, and that the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.

While I share Professor Stadler’s belief that copyright law ought to be visualized as a doctrine of unfair competition, my concern lies with her solution, which I believe does not commit copyright law sufficiently to the goal she identifies for it. This Response argues for an alternative conception of unfair competition within copyright doctrine: one that is premised on a restitutionary ideal and focuses on identifying unfair competition endogenously and contextually. If unfair competition is really what copyright is all about, then its principles ought to influence copyright law at every stage and not just in its ex ante structuring, as Professor Stadler suggests. Part I sets out the salient features of Professor Stadler’s proposal—characterized by its use of unfair competition to structure copyright’s exclusive rights framework. Part II contrasts this with a functional approach to unfair competition within copyright law. Part III then concludes by illustrating how the functional variant might work outside the confines of the reproduction right.

When Meat Loaf mystified scores of listeners in the early nineties with his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans’ most popular question. This Response does not argue that he should have. However, Meat Loaf’s (in)famous song lyrics may be able to shed light on what has become a popular question among property “fans”: namely, what is the nature of the right to exclude?

In this Response, I argue that an owner’s invocation of the right to exclude depends upon the owner’s invocation of other rights in the property bundle. In so arguing, I analyze current efforts to understand the right to exclude through the lens of the “property outlaw,” whom Eduardo Moisés Peñalver and Sonia K. Katyal profile in their recent article, Property Outlaws. I first highlight the effects of Peñalver and Katyal’s argument on the nature of property law’s right to exclude. After summarizing recent efforts to understand the right to exclude, I describe Peñalver and Katyal’s argument that outlaw behavior has a special and socially productive function in property law, and explain the connection between their article and the right to exclude. I conclude this Response by proffering evidence that Meat Loaf may have audited a first-year property law course, or at least that he incorporated insights about property law into his music.

Professor John Coffee is one of the most insightful and imaginative scholars of modern corporate finance, and I am delighted that he has turned his fertile mind to the study of enforcement in securities regulation. On the view that extension is the sincerest form of flattery, I am especially pleased to see that Professor Coffee has found my own earlier work on regulatory intensity as a useful starting point for aspects of his analysis.

When I first identified the striking differences in regulatory intensity across jurisdictions, I had hoped that others would do just what Professor Coffee has attempted in his article: refine my preliminary data and develop a better theoretical understanding of the significance of variations of regulatory intensity for the quality of financial markets. Professor Coffee has made progress on both fronts. His article introduces new data on formal enforcement actions and budgets in the United Kingdom, Germany, and Australia—and makes a compelling argument that the high level of enforcement activity in the United States explains, in part, why foreign issuers have been attracted to U.S. public capital markets in recent years and why some classes of foreign issuers still are. This second point has important policy implications for the ongoing debate over the competitiveness of U.S. financial regulation, as it suggests that a relaxation of U.S. regulatory standards and a retreat from the SEC’s traditional emphasis on enforcement may in the long run actually reduce this country’s ability to compete for foreign listings and capital market dominance. The uniqueness of U.S. enforcement efforts that Professor Coffee identifies also raises potentially serious questions about the wisdom of recent proposals to accept foreign regulatory regimes as systems of substitute compliance for U.S. oversight of foreign exchanges and securities firms.

“It’s only meant to be persuasive, not binding.” Thus runs, mantra-like, our blanket, disarming defense—against plausible objections—of judicial invocations of foreign law in U.S. constitutional cases. Professor Youngjae Lee’s manifest urge to burst this bubble feels entirely right to me.

I further like the boldness of Professor Lee’s strategy. The data presented by Justice Kennedy’s opinion for the Court in Roper v. Simmons would seem to be special in purporting to show a literally unanimous, worldwide rejection of the juvenile death penalty outside of the United States. If even such a total worldwide consensus could be shown to lack instructiveness when applying the Eighth Amendment’s Punishments Clause, then surely—I take Professor Lee to be suggesting—no divided, brute nose-count of foreign law outcomes could be thought instructive, at least in the Punishments Clause context. Professor Lee thus sets for himself the task of establishing—against our predictable, strong intuitions—the negligible epistemic value, in this context, of even an external unanimity (let alone a mere majority) of outcomes. That task is daunting because, as I shall explain, data showing a unanimous worldwide rejection of the death penalty for juveniles seem especially resilient to challenges to instructiveness such as those marshaled by Professor Lee. (I deal here only with the central issue raised by Professor Lee’s article, that of the persuasive weight, if any, carried by an external consensus on punishment calibration, in a Roper-like context of U.S. Punishments Clause adjudication.)

Professor Christopher Elmendorf’s article is an admirable effort to find some order in what has often seemed an incoherent area of law. Although he characterizes this article as mainly “diagnostic and descriptive,” it clearly has normative implications. Given the increased litigation over the administration of elections in recent years, there is an obvious need to refine the constitutional standard governing such claims. Professor Elmendorf and I are largely in agreement on the analysis that courts should take in constitutional cases involving the administration of elections—so much so that we co-authored a brief to the United States Supreme Court in Crawford v. Marion County Election Board, the Indiana voter identification case, which articulates a legal test we urge the Court to apply generally in these cases. But while Professor Elmendorf and I arrive at a similar destination, we take somewhat different routes in getting there.

This Response focuses on three points on which I take a different approach—or at least place a different emphasis—than does Professor Elmendorf. First, I would more clearly distinguish two categories of cases that his article at times seems to conflate under the rubric of “election mechanics”: election administration and ballot access. The underlying democratic values implicated by these two areas are sufficiently different that they warrant individual constitutional analyses. Second, when setting the level of scrutiny in constitutional election administration cases, I would place special emphasis on whether a particular electoral practice can be expected to burden participation by groups that remain underrepresented in the electorate, including those defined by racial or economic status. I thus see Harper v. Virginia Board of Elections, which struck down a poll tax that differentially burdened poor voters, as more germane to election administration litigation than Burdick v. Takushi and other ballot access cases. Third, while I commend Professor Elmendorf’s “danger signs” approach in ascertaining the level of scrutiny, I urge greater respect for trial court findings than Professor Elmendorf suggests. There is undoubtedly a need for clarification of the constitutional standard—something that must be done by appellate courts. At the same time, election administration cases tend to turn on subtle factual differences that trial courts are generally in the best position to evaluate.

Are emotions subversive of reason or essential constituents of it? This is the broad question posed by Dan M. Kahan in Two Conceptions of Emotion in Risk Regulation, a welcome addition to his ongoing inquiry into how emotional appraisals of value influence decision making. Much of Kahan’s recent work has focused on a particular aspect of policymaking: the study of risk perception. Two Conceptions continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan’s cultural cognition approach and Sunstein’s heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. Kahan illuminates the issues at stake with his customary passion and clarity.

A major contribution of Kahan’s work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand.

The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.

In the movie Legally Blonde, a civil procedure professor tells her first-year students on their first day of class at Harvard Law School that Aristotle stated, “The law is reason free from passion.” Since Aristotle, there has been much written about whether passion and reason are complements or substitutes. In Two Conceptions of Emotion in Risk Regulation, Professor Dan M. Kahan analyzes two important and related questions: First, what roles do emotions play in risk perceptions? Second, what is the regulatory significance of these roles?

Professor Kahan describes three models of how individuals can perceive risk—namely, as rational weighers, irrational weighers, or cultural evaluators. For rational weighers, emotions play no role in risk cognition but can show up as consequential by-products of information processing. This is a normative as opposed to descriptive model, based upon the consequentialist expected utility theory of neoclassical economics. For irrational weighers, emotions play a heuristic role in risk cognition due to bounds on computational abilities, information, and time. Emotions are distortions that underlie cognitive biases. This is a descriptive model, based upon empirical and experimental data from cognitive and social psychology and behavioral economics. Lastly, for cultural evaluators, emotions play an expressive role in risk cognition. Emotions enable people to identify social meanings of risk that cohere with their values. This model is also descriptive, with roots in Aristotelian philosophy, and based upon recent experimental and empirical research in affective, cognitive, and social neuroscience and psychology.

In this Response, I want to expand upon some of the central themes of Professor Dan Kahan’s illuminating and forceful article. My few disagreements with him are offered as friendly suggestions and requests for clarification. Most of my criticisms are directed at the accounts he too criticizes—the rational weigher and the irrational weigher accounts of risk evaluation. I will be concerned with these accounts as he presents them and will not question whether he presents them accurately. My focus will be further restricted to concerns about what he and these accounts say about emotions themselves; I will not address the very interesting connections he draws between emotions and political or social theory, such as liberalism, in other work. My concern, then—as indicated in the title of my contribution—is with emotions and risk evaluation, not risk regulation.

The application of the antitrust laws to the health care industry reflects a challenge—a Kulturkampf—to a traditional culture that often has resisted the incorporation of economic considerations into its process of making decisions.

“[H]ow one thinks about an issue and the way an issue is framed shape the way one analyzes it.” In the health care arena, there are two different ways of thinking about the product and the industry—the traditional professional/scientific model and the market-oriented model.

The traditional professional/scientific model “reflects a response to perceived market failure”—an asymmetry of information between professional provider-experts and uninformed (and uninformable) patient-consumers. The response to this perceived market failure is that “professional providers, such as physicians, serve as substitute decision makers, displacing consumers.” In theory, decisions in this paradigm are based on science and are not influenced by economic considerations or financial incentives. Under this model, “economics and trade offs become marginalized in the policy debate,” as “[m]edical care . . . becomes an exclusively technical-scientific enterprise.”

The response of the market-oriented model to the lack of consumer information is not to substitute decision making by experts, but “to provide information and education,” with the “objective of public policy” being to empower consumers by “improv[ing] the flow of comprehensible information to consumers so that they can function better as consumers.” Experts such as physicians become expert-advisers in this paradigm, instead of autonomous substituted decision makers. The recent embrace of so-called consumer-directed health care is a market-based strategy that depends on better-informed consumers with better-aligned financial incentives.

In the battle of the paradigms, the mere use of the term “industry” (above) as opposed to “system” is an empirically and normatively loaded descriptor. “Use of the term ‘system’ suggests a social services delivery model,” which is consistent with the traditional professional/scientific paradigm. In order for the antitrust laws to apply to health care services, those services must constitute “trade or commerce.” The application of the antitrust laws to the health care “industry,” suggests that health care will “be policed through antitrust enforcement against anticompetitive conduct as are other economic sectors”—a position consistent with the market-oriented paradigm.

Causal wrongs are those wrongs that one commits only if one makes a causal contribution c to some result r, where both c and r form part of the wrong. It is because c and r form part of the wrong that r is called a “result” rather than a “consequence” of the wrong. Consequences follow; results constitute.

Professor Moore believes, as I do, that causal wrongs exist, and that they exist not only in morally justified law, but also in morality outside the law—not only in captivity, as it were, but also in the wild. Moore also seems to believe, as I do, that moral and legal wrongs are paradigmatically causal, that one needs to understand the causal examples in order fully to understand the noncausal examples (or at least many of them). Moore and I part company, however, when we turn to the question of which moral and legal wrongs are causal wrongs. Naturally, we agree about some of them. We agree that murder and manslaughter are causal wrongs, for example; and so are torture, and extortion, and wounding; and so are the common law torts of negligence and nuisance and inducing breach of contract. Nevertheless, there are various wrongs that Moore classifies as causal that I would classify as noncausal. There are also some that I classify as causal that he would classify as noncausal. Let me say something about these two contrasting areas of disagreement in turn.

Moore classifies rape, assault, burglary, and theft as causal wrongs on the ground that “there plainly are causal requirements for such [wrongs].” True enough. Whenever any of these wrongs is committed, there is some-thing that makes a causal contribution to something. Consider a rape of V by D. Doubtless, D’s intentions make some sort of causal contribution to D’s bodily movements, and, doubtless, D’s bodily movements make some sort of causal contribution to something involving V’s body. What does not follow, as Moore claims it does, is that it must be D himself that makes these (or any other) causal contributions.

Professor Moore’s two central theses in Causing, Aiding, and the Superfluity of Accomplice Liability are, first, that we should recognize not just one, but four distinct types or “desert bases” of accomplice liability; and second, that once we have done this clearly, we will also see that accomplice liability is superfluous—that the criminal law does not need a distinct doctrine of complicity.

The four kinds of accomplice who are properly held criminally liable are (a) “truly causal accomplices,” whose acts are indeed causes of the relevant resulting harm; (b) “necessary accomplices,” on whose acts or omissions the resulting harm counterfactually depends; (c) “chance-raising accomplices,” whose acts increase the chance that the harm will ensue but are neither causes of, nor counterfactually necessary for, that harm’s occurrence; and (d) “subjectively culpable accomplices,” who seek to encourage or assist a principal but whose acts actually make no difference at all. But, Moore argues, the grounds for these types of accomplice liability are not peculiar to complicity; they are the four types of desert bases (causation, counterfactual dependence, chance-raising, purely subjective culpability) for criminal liability generally, of “principals” as much as of “accomplices.” Those classed as accomplices are indeed, “in general and on average,” less blameworthy than those classed as principals (for instance, because they generally make a lesser causal contribution to the harm’s occurrence), but, according to Moore, this difference in degree of blame-worthiness is only usual, rather than exceptionless, and is not enough to warrant a categorical distinction between “principals” and “accomplices.”

Moore’s distinctions between the four desert bases depend upon, and help to explicate further, the account of causation that he has been developing over the last decade or so, but I will not be concerned with that account in this brief Response. I will instead, in Part I, ask some questions about the third and fourth desert bases that Moore identifies, before arguing in Part II that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability. That argument will appeal to the mens rea of accomplice liability rather than to the actus reus (which is the focus of Moore’s argument): my claim is therefore that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion that “aiding another to cause a harm is not a distinct basis for blame and punishment.”

Debates

(Visited 48 times, 1 visits today)
Close