Archive for November, 2011

“More Law?” – Pure Sociology Gets It Wrong

Monday, November 28th, 2011

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the (more…)

Read These

Saturday, November 26th, 2011

We probably shouldn’t have titled our last post “Free Time.” Apparently that was too hubristic for the gods, who have denied us any more for the writing of a post this week. At least one that’s more wheat than chaff. (The blogosphere has more than enough chaff as it is.) But we did have sufficient time to spot some other folks’ posts that are insightful, thoughtful and remarkably chaff-free. In case you missed them, here are a couple from the past day or so really worth the read:

First, Radley Balko’s piece “Driven by Drug War Incentives, Cops Target Pot Smokers, Brush Off Victims of Violent Crime.” In it, he describes even more of the perverse incentives our well-meaning politicos have given the police, incentives not only to devote disproportionate resources to drug enforcement, but also to make bad arrests, plant evidence, seize whatever they can get their hands on as forfeiture, and otherwise do the exact opposite of what we pay them to do.

Next, Scott Greenfield’s “Those Who Can’t, Teach Law.” One of the more thoughtful responses we’ve seen to the less-than-awesome NYT piece on law school failing to teach the practice of law.

We’ve got some pretty strong views on both of those topics, and maybe if we get a chance we’ll impose them on you share them with you later. But in the meantime, or if we never get around to it, you could do a lot worse than to read these.

 

Free Time

Friday, November 18th, 2011

We love reading the advances of real scientists doing real research. It puts us in our place when we’re feeling all smart — here are people actually advancing knowledge and doing stuff for real! — and at the same time we get to learn some really cool stuff.

For example: It was January of 2000, and we were sitting in a Hell’s Kitchen Dunkin’ Donuts, just looking out the window, thinking about this and that, when suddenly we had an epiphany: What if the wave function was a real thing, and we just saw the sliver of it that coincided with our own dimension?

You have to understand, this was back before we got married and had kids, and so we occasionally had what was called “free time.” (We’re not sure what it’s called these days, it’s been so long since we had any.) How it worked was, we had “free time,” which we spent pursuing various hobbies like motorcycling, playing in bar bands, and the like. We had gone to the Dunkin’ Donuts after a lackluster rehearsal with an acting company we were with at the time (another hobby), and our mind must have turned to quantum physics — which had been a mild hobby of ours ever since John Crowley showed us that Omni article on string theory back in our freshman year of high school. The more we learned about it, and all the spooky nonsensical impossible stuff that apparently was really being observed, the more we dove into it. By 2000, we’d written off string theory as hopeless, and were waiting for some brilliant scientist to come up with something like Garrett Lisi did some years later. We weren’t contributing anything, of course; just trying to understand the current state of knowledge.

So anyway, what our epiphany was, was that it seemed you could explain a lot of that spooky nonsensical impossible stuff if you thought of things like photons and electron as not being particles or waves or whatever, and instead thought of them as wavelike things rippling or oscillating in a higher dimension, and what we saw was nothing more than the points where they intersected our 4-dimensional reality. You need more dimensions for the math, but you only need 5 to explain it.

Take the standard 2-slit experiment. You shine a beam of photons at a screen with two slits on it, and on the far wall you’re going to get an interference pattern as the two sets of waves from each slit interact with each other (as in the hastily-photoshopped image at the top). If you shoot individual photons through a single slit, you get just a single patch of light on the far wall. If you shoot individual photons at the two-slit screen, the same interference pattern builds up as if each photon had interfered with itself, and found a spot on the far wall in that interference pattern. It makes no sense if the photon only exists in our 4-dimensional world, and yet it happens.

But if you think of the photon as something one dimension higher, it’s easy to contemplate.

(Note: what follows is not science, but only what occurred to us as we sipped our hot chocolate that day.)

Think of a 3-dimensional sphere. If you only experienced (more…)

“Collars for Dollars” Plus “Occupy Wall Street” Equals What?

Friday, November 18th, 2011

The Facebook post above was posted to Reddit earlier today.  We don’t know if this is an accurate copy or not, the internet being what it is, but it’s close enough to what we’ve heard actual officers say that it is useful to illustrate a couple of points.

First, the whole “Collars for Dollars” mentality we’ve mentioned before. In short, the NYPD is a unionized labor force, whose workers get paid a base salary plus overtime. The base salary is barely sufficient to meet the expense of living in NYC (so many cops choose to live pretty far away from the city, cutting any ties to the communities they police, with attendant consequences). The way for an officer to make some real money is by working overtime.  That lovely, lovely overtime is what pays for their mortgages, their kids’ schools and the occasional night on the town. The way to make overtime is either (1) by making arrests or (2) working a “detail.”

Arrests generate overtime because, at the end of one’s shift, one gets to stay at the precinct for many more hours filling out the reams of attendant paperwork, securing evidence, and helping a prosecutor draft the various complaints. If any of the collars were for felonies, ideally they have been timed so that the resulting grand jury presentation will be held on the cop’s regular day off — RDO for short — which gives the cop 8 hours of overtime even if he only showed up at the DA’s office for half an hour.

Details are out-of-the-ordinary assignments where an event requires extra police to provide security, police not otherwise assigned to a normal duty — police working overtime or on their RDO. Details can range from providing a police escort for a visiting dignitary, to lining the streets for a parade, to dealing with an unruly mob. Details are a great source of overtime.

You see this in the Facebook discussion, which appears to include more than just one NYPD officer. The original poster is on his RDO, and he’s hoping the OWS protesters start acting up so he can get called in to do a double tour and get 15 hours of overtime pay (for getting the chance to hit some protesters). Another jokes that he hopes they don’t start rioting until his shift starts that night, presumably so he can maximize his overtime.

There’s nothing wrong with police officers joking about stuff that, to the rest of us, might sound obscenely offensive. It is often a tough job, often horrific, and black humor is how people of all walks of life deal with such things. The post about pretending to be a protester, shoving people from the inside, shouting invective, and leaving a BB- or paintball- gun behind? That one’s probably a joke (although — and probably because — such things have been known to happen).

But there are other wishes expressed here which, though certainly cathartic, are probably more sincere. The desire to “rock,” or get physically violent with a protester, comes out strong here. Why? Because the protesters are the enemy.

That’s our second point: To the police, it’s “Us against Them,” and (more…)

Trying Out a New Comment Thing

Tuesday, November 15th, 2011

We’ve just adopted a nifty little tool we’ve noticed on a few other blogs we follow — When you’re leaving a comment, if you provide the web address of your own blog, then it’ll provide a link to your latest blog post at the end of your comment. A harmless way to share the love, we think. (And you can disable it by unchecking the CommentLuv box before commenting.)

That is all.

The Well-Educated Citizen

Monday, November 14th, 2011

 

We have more and more college graduates these days, but is it doing any good?

On our first day of college, at UVA back in the late summer of ’87, we didn’t feel the usual nervous excitement one gets from moving away from home, meeting new roommates, trudging through the various long lines to register for classes and get ID cards etc., and hearing the old “look to your left, look to your right” speech. We didn’t feel that way partly because we’d already been there and done that and more at military school, but mostly because we were feeling another emotion entirely that completely overpowered all the rest. It’s an emotion we can’t quite name, though there’s probably a great name for it in German — a great hopeful sensation of “at last, it’s about time!”

We were stoked to finally start getting an education. After years and years of schooling, we were ready to get learning. College for us wasn’t a prerequisite for getting a job or anything like that — it was a chance to gain as much knowledge about as many different subjects as we could cram into four (ultimately five) years. A chance, moreover, to learn how to use that knowledge and apply it and, maybe, start contributing to it. A truly liberal education that would prepare us for pretty much any future by preparing us to think critically and analytically and have the basic underlying data to do it well.

Back in 1987, most of our friends thought we were out of our mind. Most of them were there to get ready for a career, whether it be in engineering, business, architecture, teaching, or the arts. Or a career yet to be determined once they found the right major. Going to college was mainly about getting a good job after graduation.

Now in 2011, that seems even more the case than ever. College is seen as a prerequisite for a good job, period. Many kids are told this from kindergarten through high school, but it’s such an implicit societal assumption these days, that even if it wasn’t drilled into them they’ve picked it up by osmosis.

The problem is, college these days is not something you can rely on to prepare you for a job, unless you’re pursuing a technical degree in the soft or applied sciences.

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Here’s how education is supposed to (more…)

Because Nino Said Yes, the Chief’s Saying No? To What Extent Does a Justice’s Vote Depend on the Others’ Votes?

Friday, November 11th, 2011

The decisions of the U.S. Supreme Court often have important repercussions around the world, so it’s perhaps not surprising that is studied by lawyers and academics far beyond the Court’s jurisdiction. The results of such studies are often more useful for their insights into how others see us, than for any particular insights into how things work here. That’s because typically, the concepts and even the words we use to describe them just don’t translate all too well. Then again, they’re often misunderstood right here at home — the adjectives “liberal” and “conservative,” for example, have very different meanings depending on whether they’re modifying a political or jurisprudential noun, but try telling that to the average journalist.

Every now and then, however, you get a foreign study that — while still misinterpreting concepts and terms — nevertheless makes a nifty point.

One example was published just a couple of days ago: “Justice Blocks and Predictability of U.S. Supreme Court Votes,” (Nov. 9, 2011) by Spanish academics Roger Guimerà (of the Institució Catalana de Recerca i Estudis Avançats in Barcelona) and Marta Sales-Pardo (of the Departament d’Enginyeria Química, Universitat Rovira i Virgili in Tarragona). In their paper, Guimerà and Sales-Pardo tried to figure out how any given justice’s votes are affected by the votes of the other justices — not why or how, but whether the vote of Justice X depends on how each of the other justices are voting.

This is something that common wisdom claims happens all the time, such as the trope that Thomas tends to simply follow Scalia’s lead. There is usually some basis for the common wisdom, but it is never entirely accurate (in fact now there’s even talk of Thomas being a thought leader in his own right).

But all these comparisons tend to only compare one justice to another, or maybe blocs that tend to vote together on certain issues. The Supreme Court, however, is made up of nine justices, who all interact with each of the others in different ways. That’s 36 separate relationships. It’s even more complex when you try to figure how any relationship is affected by the other 35 relationships, and so on.

So enter Network Theory.

This is Guimerà and Sales-Pardo’s bailiwick. As NewScientist puts it, they “study complex systems, such as the metabolism of living cells, by considering them as networks of interacting components.” It’s often hard to tell what’s really going on in there, when there are many things interacting in often poorly-understood ways, and when you don’t have all the data you’d like to have. Network theory is a way to put the pieces together and figure out what the relationships probably are. Think of it as a sophisticated form of statistical analysis. It has been applied to hard sciences like biology and physics, to complex entities like the internet and the human brain, and even to the soft sciences of sociology, politics and economics.

Guimerà and Sales-Pardo determined that, if you look at how (more…)

The Science of Ethical Relativism?

Wednesday, November 9th, 2011

If you’re looking to start an argument with a loved one, or a fight, moral relativism is an excellent way to start. Specifically the position that, because different people do have different ideas of what is and is not ethical, your loved one’s morals are not true. Nor are they any more valid than the morals of someone who thinks very differently. And in fact, all ethical positions are equally valid and deserving of respect. This position strikes many as not only absurd but insulting, which may lead them to strike you.

After all, just because someone thinks that they’re doing the right thing, that doesn’t make it so, right? A fanatic who kills random bystanders in order to make a point may think it’s the height of propriety, and others may agree with him, but they’re wrong. Right? There are some things that are just wrong, and a relativist position that such attitudes are as valid as any other is equally wrong. Right?

Well, we’re not going to get into all that here. What got us onto this was a report in Scientific American that you can scientifically determine whether or not someone is a relativist. That could be useful, if for no other reason than to avoid situations where someone gets punched in the nose.

The magazine reports that “a simple mental puzzle” can determine whether someone is a relativist, or “an absolutist who embraces only one ‘true’ answer to these weighty conundrums.” This is the result of a study by Geoffrey Goodwin an John Darley. You can take a sample question at the link, if you like, but it really just boils down to whether or not, in a situation with multiple possible outcomes, you think through those outcomes when arriving at your answer.

That’s really not terribly useful, unfortunately. It’s only a test of clear, orderly thinking. The kind of brains used by chess players, mechanics troubleshooting a system, computer programmers, and even the occasional lawyer. It’s sadly true that too few people do think so clearly, but plenty do. And plenty of them are moral absolutists. The ability to consider different possibilities and perspectives certainly goes well with relativism, but it is neither a prerequisite nor a cause nor a strong correlate.

Criminal law, of course, is the embodiment of absolutism. What is crime, but the codification of a society’s morality — a list of those acts that are so ethically wrong that they must be punished. It doesn’t matter if an individual or ethnic group within the society doesn’t share the codified morals — they may think it’s perfectly fine if not laudable to do a certain thing, but the law says otherwise and they’re going to be subject to it. And appearances to the contrary, many very smart people with clear logical minds are behind our criminal jurisprudence. They may have the ability to be relativists, but it’d be difficult to call them by that name.

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Still, it’s fascinating that someone actually bothered to take a philosophical idea, and do science to it.

Originally, of course, philosophy was how we learned about the world — we thought about it and compared notes to see which ideas held up the best and made the most sense. But the scientific method has replaced philosophy. You have an idea about how the world works? Test it and see if you’re right. In recent decades, the science of the mind has gotten astonishingly good. Brain science is rapidly answering a heck of a lot of questions that used to be the sole province of philosophers. So philosophers have retreated to areas not easily testable, stuff that isn’t exactly science, but where ideas can still be floated and debated and explored. Stuff like morality, free will, etc. One thing that has been fairly constant, however, is that philosophers do not go into the lab. They do not construct double-blind experiments, perform regression analysis, or any of that. The only experiments they perform are thought experiments.

Until lately, however. Goodwin and Darley may not have constructed the best (more…)

A Neat Primer on Neuroscience and Criminal Law

Monday, November 7th, 2011

 

One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.

Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.

One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?

Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.

We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.

Dear Whiners: Shut Up.

Tuesday, November 1st, 2011

 

Hey. Gen-X lawyer here. Could those of you whining about your law schools and sucky job market please shut up? Thanks.

There’s something about the gripes of new and rising JDs that’s not unlike the same bleats we’re hearing from many “Occupy Wall Street” types: It’s the complaint that they did everything they were supposed to, and now instead of getting a living they’re getting fucked. They went to school, took out loans to pay for it, in the expectation that the payoff would be worth it. That there would be a job out there — more than a job, a lifelong career path. A secure income. But that’s not what they’re finding in the real world. The dream jobs aren’t out there — at least not for them. They’re starting their adult lives with an insane amount of debt, and no conceivable way to pay it off. They feel betrayed. They were promised all this, they did their part, and now society isn’t doing it’s part. So they rant online, some take to the streets to complain, and a few have even sued to enforce the deal they thought they’d made.

This is nothing new to those of our generation. When we graduated from college, the job market sucked big time — only the engineering students seemed to be in high demand, much to the chagrin of those of us with History (cough), Art and Philosophy majors. It was pretty bad when we graduated from law school, too — we knew many bright, talented young JDs who had to work as bartenders, online marketers, and the like before landing a lawyer job (and the ones who persisted, by the way, did wind up getting cool law jobs and are doing quite well).

It sucked, but we knew it was coming. We had no illusions about the economy. We didn’t expect Social Security to even be around any more by the time we’d reach retirement. The Baby Boom generation had spent their lives focusing on how awesome they were, and fucking things up for the rest of us, and we knew it very well. A Washington Post article from 1991 began:

Now adulthood looms, like a cookie jar that somebody else already picked clean. Will the busters [the phrase “Generation X” had yet to be coined, we were called lots of things] ever be able to match their parents’ standard of living? The cost of starting out in life — college and a first house — has been racing ahead of inflation and wages ever since they were born. Meantime, adults have rung up nearly $3 trillion in national debt in the busters’ brief lifetimes, virtually all of it on consumption for themselves. The busters will get stuck with the tab.”

Another article from the Atlantic in 1992 (calling us the “thirteeners” — the 13th generation of U.S. history) described us thus:

After graduation they’re the ones with big loans who were supposed to graduate into jobs and move out of the house but didn’t, and who seem to get poorer the longer they’ve been away from home — unlike their parents at that age, who seemed to get richer. …

In them lies much of the doubt, distress and endangered dream of late twentieth-century America. As a group they aren’t what older people ever wanted but rather what they themselves know they need to be: pragmatic, quick, sharp-eyed, able to step outside themselves and understand how the world really works. From the Thirteener vantage point, America’s greatest need these days is to clear out the underbrush of name-calling and ideology so that simple things can work again.  Others don’t yet see it, but today’s young people are beginning to realize that their upbringing has endowed them with a street sense and pragmatism their elders lack. Many admit they are a bad generation — but so, too, do they suspect that they are a necessary generation for a society in dire need of survival lessons.

When they look into the future, they see a much bleaker vision than any of today’s older generations ever saw in their own youth. Polls show that Thirteeners believe it will be much harder for them to get ahead than it was for their parents — and that they are overwhelmingly pessimistic about the long-term fate of their generation and nation. They sense that they’re the clean-up crew, that their role in history will be sacrificial — that whatever comeuppance America has to face, they’ll bear more than their share of the burden. It’s a new twist, and not a happy one, on the American Dream.”

And you know what we think when we hear Millenials whining? The children of those self-absorbed Boomers, who gave them awards just for showing up, who slathered them with praise and “self-esteem” without actually making them do anything to earn it? (more…)