Philosophy of Law lecture: Jules Coleman

1:04 p.m. - I'm going to try something new: live-blogging a lecture. This is a new lecture series on the Philosophy of Law here at the Marshall Wythe School of Law at William & Mary. W&M Law Professor Michael Steven Green is giving the introduction to Professor Jules Coleman. Coleman is the Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy at Yale University. Coleman is the author of The Practice of Principle, Risks and Wrongs, and Markets, Morals and the Law, as well as many other books and articles in the philosophy of law and tort theory.

Prof. Green says that Prof. Coleman is a giant in torts theory.

1:05 p.m. - Prof. Coleman takes the stage in Room 141. Prof. Coleman learned from Guido Calabresi, a distinguished professor of Coleman's who "had the wrong views." He says he teaches from Calabresi's notes, but with a caveat: he puts a negation in front of what Calabresi said. (NOTE: Calabresi taught at Yale, and was nominated to the Second Circuit Court of Appeals by Bill Clinton in 1994. He still sits there today.)

1:08 p.m. - When people think about the philosophy of law, they think about it in a normative way. Tort law is not that way. What is tort law? What is essential about it? How does it differ from criminal law, contract law and other kinds of law?

1:09 p.m. - A good theory of tort law should resonate with its participants. It should be hermeneutic — participants in the kind of law should recognize their practice in a good legal theory. "I'm trying to offer a theory of tort law that makes sense to the people who are participants in it," Coleman says.

1:11 p.m. - Economic analysis. Time to talk about bad luck. Bad luck leads to people having to absorb costs. What should we do about these costs? Two obvious things: one, we should try to minimize them. Another thing is to try to spread their costs.

1:12 p.m. - Tort law provides remedies to people who get injured. If you're an economist, you might look at tort law and say it's all about deterrence. That might be plausible, but it may not resonate with the participants in practice.

1:15 p.m. - "It's a good question to ask when you're trying to offer a theory of the law: What kind of explanation are you trying to offer?" Coleman says.

1:17 p.m. - Coleman is interested in the question: Should the theory of a certain area of our social life be responsible to what participants think?

1:18 p.m. - Coleman is skeptical about the application of his theory to theories about markets. "No one in their right mind" would think that market theories should depend upon what market participants think about markets, he says. The same is true of language, and speakers of it. Linguists and language theorists don't think that language speakers should have theories about language. Who would care about such theories? Well, maybe being a judge is different, Coleman says. A judge may have to have some level of understanding about the role that a judge plays in the law. "How is law different from other kinds of social engagement?" he asks.

1:22 p.m. - Coleman makes a joke. "You're in law school, you have competent teachers. I'm supposed to slip that in three times during the lecture. I've done it at 20 after, I'll do it again at 40 after ..."

1:24 p.m. - Coleman mentions that his theory is corrective justice. "Sounds good, doesn't it? What kind of justice do you stand up for? Corrective justice. As opposed to what? Incorrective justice." The audience laughs.

1:25 p.m. - Coleman provides the elements of torts: duty, breach, harm. He cites Justice Cardozo in Long Island R.R. But what makes these the elements of torts? What does a theory of torts try to accomplish? For most people who make theory about torts, he says, it's about trying to predict the outcome of cases. They're not trying to say why duty matters, why breach matters, etc.

1:28 p.m. - The economic theory of torts is uninteresting to Coleman, unless it has one more thing. Is it an accidental relationship between the theory and the outcomes of cases, or is there a mechanism at work that connects the theory to the outcomes of cases.

1:30 p.m. - "I actually think very highly of myself as a torts theorist," Coleman says. Now he makes a joke about being a psychotherapist, being aspirational, and being Jewish. A number of people are laughing. I'm typing furiously and I don't know the Jewish-psychotherapy connection, so I don't get it.

1:33 p.m. - Coleman is trying to engage a 1L, who's not laughing at his jokes. This lecture is being filmed, by the way. Not sure how or when it will be available.

1:34 p.m. - Coleman believes the paradigmatic tort is a wrong, not an accident. If I want to understand tort law, I should want to understand intentional torts, he says. Coleman switches gears to contracts and specific performance being the paradigmatic remedy for contracts. HYPO: Let's say I promise to paint your house ("very unlikely," he says). Someone comes up to him and says, you promised to paint my house, but you didn't paint my house. There's no reason for you not painting my house. Why does the person who asked for the house to be painted need to provide a special reason for having the painter paint the house? If you think that contracts are promises, you would think about why specific performance is appropriate, when it is appropriate.

1:40 p.m. - Coleman's making a joke, plugging his book because he has children in the arts and has to support them.

1:42 p.m. - When an economist looks at tort law, he sees three things: accidents, costs, and liability as a mechanism for shifting costs. "As a philosopher, I see more concepts, and different ones," Coleman says. "I see rights and wrongs. I see responsibility. I see costs as a mechanism for holding people accountable. I don't see costs at all. They're not primary to me. The notion of duty is primary to me, and an action contrary to a right is primary to me."

1:44 p.m. - When Coleman looks at tort law, he sees it as a subject already influenced by some working theory he has of it. He doesn't look at it in a completely normative, neutral way. In contracts, he wants specific performance. On the philosophical side, he says there are moralists in the theory of tort law. "I take great pride in the fact that no student of mine ever holds a theory that I hold," Coleman says. Even though he's a legal positivist, and legal positivism is the most common legal theory, he says that no student of his is a legal positivist.

1:48 p.m. - Coleman says that Richard Epstein is an institution, who cranks out legal ideas faster than anyone, and has views about everything.

1:52 p.m. - The lecture is going to have to end soon, sadly, because many students and professors in the room will have to attend 2:00 classes. Looks like there won't be time for questions.

Here are the next two lectures in the series (courtesy of the W&M Communications office):

March 19, 1 PM, Room 141: Michael S. Moore, Walgreen Chair and Co-Director, Program in Law and Philosophy, University of Illinois College of Law. Professor Moore is the author of Educating Oneself in Public, Placing Blame, and Act and Crime, as well as many other books and articles in the philosophy of law and criminal law theory.

March 26, 3:30 PM, Room 127: Lawrence A. Alexander, Warren Distinguished Professor, University of San Diego Law School. Professor Alexander is the author of Is There a Right of Freedom of Expression?, Whom Does the Constitution Command? (P. Horton co-author), and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (E. Sherwin co-author), as well as many other books and articles in the philosophy of law, constitutional law, and criminal law theory.

1:55 p.m. - Coleman has given a summary of people doing philosophy of law — stuff he's interested in. He's giving a reading list, a sort of Who's Who in the Philosophy of Law today.

Williamsburg or Iowa — Which one is a Yankee Cesspool?

Well, of course neither Williamsburg nor Iowa constitutes a "Yankee cesspool." But at least on the website of the Daily Press, Williamsburg's newspaper, this qualifies as a debate.

On Friday, the newspaper published a letter I wrote about a constitutional amendment in the Virginia General Assembly, that would have automatically restored voting rights to nonviolent ex-felons once they serve their time. (I first blogged about the Restoration of Voting Rights project last fall.) Here's the letter:

The Virginia House Privileges & Elections Committee dealt a setback to positive change on Friday, effectively killing (for this year) a constitutional amendment that would allow non-violent ex-felons the right to vote. Virginia is one of only two states in the U.S. that permanently bars ex-felons from voting, even after they have paid their debt to society.

This portion of the Virginia Constitution is a shameful reminder that racism persists even today, because most ex-felons in Virginia are black. Once these residents have served their time, they should have their voting rights restored automatically. All free Virginians should have the right to vote. Our House of Delegates should know better than to keep Jim Crow laws on the books.

What startled me was the response the letter got. For a short time on Friday, it was one of the most viewed items on the Daily Press website. By Saturday, readers had left a total of 43 comments. Let's just say they weren't all supportive of the idea that once a person has completed his prison sentence, he should get his rights back. Never mind that this is the law in 48 of the 50 states — only Kentucky and Virginia lag behind. Here's a sample of the comments:

#6: Has anyone ever noticed how 98.7% of the left wing liberal letters to the editor come out of my hometown of Willamsburg?

We have so many yankees living here now it's like living in New York City.

They bring their left wing liberal socialist attitudes with them. Yankee go home !!!

#12: ... If you feel so strongly about this maybe you should be in the lower income neighborhoods counseling black youths against committing criminal acts and less time in lavish Williamsburg.

#13: Williamsburg is a cesspool of liberals. If those elitists had to live in Hampton or Newport News in the same neighborhoods as the felons, they would have a different attitude.

#35 (in response to #13): They had sense enough to move from the Yankee cesspool and move to Williamsburg.

#19: ... [T]he fact is that one third of the Blacks in this are have substantial criminal records and have dropped out of school. To participate in a Republic, you need to be an informed voter; hence the Founding Fathers when evaluating the intellectual capacity of a certain class decided they would count as 2/3s. So it's one man, 2/3d vote. Besides they don't pay taxes, they are paid by the taxpayer.

You get the idea. My original point in the letter, the one that stirred the pot, was "that racism persists even today." I stand by that point.

On a more exciting note, the United States Supreme Court has agreed to hear a monumental case in the world of criminal justice, determining whether criminal defendants have a constitutional right to DNA evidence that could definitively show their innocence (or strongly implicate them in the crime). An Alaska man who was convicted of kidnapping and rape has asked the courts for access to sperm left in a condom the night that two men abducted a prostitute, raped her, and left her for dead on the side of a road. The DNA could almost certainly prove whether the man participated in this horrible crime. At trial, the driver of the car (who had already pleaded guilty) said that William Osborne rode in the passenger seat that night, and participated in the crime. Osborne's trial lawyer never asked for access to the DNA, and he was convicted. On appeal, however, a new lawyer — presumably, one who believes that Osborne is actually innocent — argued that Osborne has a right to this critical scientific evidence. The Ninth Circuit Court of Appeals agreed, citing a pivotal Supreme Court case, which says that criminal defendants have a right to evidence that tends to show that the defendant did not commit the crime. The Court decided that case, Brady v. Maryland, back in 1963 — long before DNA evidence came about.

If the Court finds that Osborne does have a constitutional right to the DNA evidence, then criminal defendants across the country will be able to ask for this sort of evidence. This would be a fantastic development, because it will likely result in scores of exonerations. The government will be forced to disclose DNA, and innocent people will be set free. One would think that states and the federal government would support this, but they do not want to pay for the testing. So, the states and the feds argue that defendants do not have a constitutional right of access to DNA evidence. I disagree.

The Supreme Court will hear arguments on March 2 in William Osborne's case, District Attorney's Office for the Third Judicial District v. Osborne. The Washington Post has a good story about the case, and SCOTUSblog provides a detailed look at the facts.

Good Eggs and Research Papers

I'm working on three research papers at the moment, not an uncommon task for a second- or third-year law student. This gives me the pleasure (no, really) of spending inordinate of time reading news and law review articles, cases, and statutes which may or may not be helpful to my cause. Doing research for a legal paper involves a hodgepodge of systematic exhaustion and serendipity. The latter comes when you find that amazing piece of work that seems as if the author wrote it just to help you with your particular project.

The three papers include my Note, a criticism of the portion of Virginia death penalty law that allows people to die if a jury determines they pose a "serious continuing threat to society." I've been working on this since August, and it's finally due in two weeks. In the last few days, I have completely revamped this 42-page article with the help of a fantastic, brilliant lawyer, writer and friend. The second paper is a 15-25 pager for my Death Penalty seminar. My outline is due Monday. Today I'm reading Albert Camus' terrific essay, Reflections on the Guillotine, for inspiration and to get started on what I think will turn into a law student/philosopher/former journalist's view on why America continues to execute criminals when most of the rest of the Western world quit decades ago. The final paper is a 25-40 pager I'm just starting for my Post-Conflict Justice/Rule of Law class. This week I switched topics, ultimately deciding to write about the new legal rights given to victims in the Khmer Rouge trial.

My original topic, and my reason for writing today, was the conflict in Gaza between Israel and Hamas. I could not come up with a post-conflict thesis for my paper, in part because the conflict has not ended. I did, however, become even more interested in the crisis and the myriad problems that both sides face. Perhaps coincidentally, my girlfriend posted this fantastic article on her Facebook profile. A Japanese novelist, Haruki Murakami, faced the difficult decision of whether to go to Israel and accept a literary award, at a time when Israel's popularity in the world continues to plummet. In his amazing piece for Salon, he creates an apt metaphor for the conflict:

"Between a high, solid wall and an egg that breaks against it, I will always stand on the side of the egg."

Of course, Israel, with its superior weaponry and U.S. backing, is the wall and the Palestinians are the egg. Or do the Israeli government and Hamas together form the wall, making Israeli and Palestinian civilians the egg? Haruki leaves an important ambiguity there, one worth pondering.

A first in international law

One of my classes this semester is International Criminal Law, a burgeoning field of law that began in earnest after World War II, with the Nuremberg and Tokyo Tribunals. When most people think of criminal law, they think of crimes like murder, robbery, theft, etc. There are hundreds, if not thousands, of domestic crimes, and they vary by state and country.

International crimes, on the other hand, are few — but they are hefty. After Nuremberg, there were essentially three international crimes: war crimes (breaking the rules of war, a series of treaties that includes the Geneva Conventions), genocide (systematically killing a group of people because of their ethnicity or religion), and crimes against humanity (engaging in systematic persecution, torture, rape, or other inhumane acts as part of a governmental policy). A fourth international crime, aggression, is still in development, and is not used as often as the others.

Most international crimes have been prosecuted by ad hoc tribunals — courts set up to deal with international crimes after they have occurred. This has been the case for situations like the former Yugoslavia (the ICTY) and Rwanda (the ICTR). The field of international criminal law got a huge boost in 1998, when 120 countries signed a treaty containing the Rome Statute, which established a permanent, forward-looking International Criminal Court. The court has its permanent seat at The Hague, Netherlands, and operates independently — for the most part — of the United Nations.

(Although the Clinton Administration helped draft the Rome Statute, the Bush Administration and Republicans in the Senate refused to ratify the treaty, so the U.S. is not a member of the International Criminal Court.)

This is just a little background to help explain what's happening today, which is a first in international criminal law. The ICC has issued an arrest warrant for Omar al-Bashir, the president of Sudan. He is accused of war crimes, genocide, and crimes against humanity. Obviously it's difficult to arrest a sitting president, so it's not at all clear when or if that will happen. But he has been indicted, and an ICC prosecutor is waiting for Bashir in The Hague, should he somehow be delivered. For a depressing look at what has happened in the Darfur region of Sudan on Bashir's watch, go to savedarfur.org.

What happens next may depend on the actions of five key nations: China, France, Russia, the U.K., and the U.S. These are the five permanent members of the UN Security Council. If the Security Council so chooses, it may permanently delay Bashir's prosecution. As the Times article suggests, some people believe that it could be detrimental to any peace process in Darfur if Bashir is extradited to The Hague and put on trial. That could lead to many more years of chaos in Sudan. But it would also likely mean the first prosecution of the sitting president of a country — a revolution in international law.

UPDATE: Turns out the Times article may have been a bit premature. The Associated Press reports that the ICC is denying that its judges have made a decision to issue a warrant for Bashir's arrest.

SFIP & BLSA Death Penalty Symposium

The William & Mary Law chapter of Students for the Innocence Project and the Black Law Students Association co-sponsored the second annual Death Penalty Symposium on Saturday, Feb. 7 at the law school. The forum featured capital trial and appellate lawyers and John Thompson, who was convicted of a crime he did not commit and was exonerated in 2003 after 18 years in prison, including 14 on death row.

Judge Tommy Miller, a federal magistrate judge in Norfolk, moderated the symposium and provided opening remarks on the history and constitutionality of the death penalty in the United States.

Miller said a conversation about the death penalty is highly relevant. The State of Maryland is considering abandoning the death penalty. There were recent editorials on the topic in both the Washington Times and Washington Post, with each paper taking opposing sides of the debate.

“It always puzzled me why the death penalty is considered part of the conservative philosophy because conservatives generally don’t believe the government can get anything right, so why should they believe [the government] would get the death penalty right?” Judge Miller said.

Miller said the first legal execution in the United States took place in 1608, just five miles down the road at Jamestown Colony. The death penalty was very much in vogue in England, he said, and when we drafted the Constitution, we included the Eighth Amendment — “nor shall cruel or unusual punishment be inflicted.”

The case of Furman v. Georgia, 408 U.S. 238 (1972), declared the death penalty unconstitutional as applied. At the time it was announced, the opinion was the longest in Supreme Court history, and included opinions by all nine justices.

The death penalty returned with the Court’s decision four years later, in Gregg v. Georgia, 428 U.S. 153 (1976). That decision, 7-2, held that changes Georgia had made to its death penalty scheme were sufficient for the system to be constitutional.

Since Gregg, the Court has narrowed the situations in which the death penalty can be used. It cannot be used for certain crimes, such as the rape of an adult woman, Coker v. Georgia, or a child, Kennedy v. Louisiana; or for certain defendants, such as juveniles, Roper v. Simmons, the mentally ill, Atkins v. Virginia, or the insane, Ford v. Wainwright.

The arguments against the death penalty include arbitrariness. This can take place at many levels — the police who investigate the crimes, the attorneys who prosecute the offenses, the judges who oversee the cases, the juries who hear them, and the appellate judges who take up the cases on review. One recent example is the case of Jackson v. Commonwealth, 255 Va. 625 (1998).

The Supreme Court decided an important death penalty case last year in Baze v. Rees, which upheld the constitutionality of Kentucky’s system of lethal injection. In that case, however, Justice John Paul Stevens, wrote for the first time in his 32 years on the Court that he believes the death penalty to be unconstitutional.

So is the death penalty unconstitutional? Judge Miller’s conclusion is that the Constitution is what five members of the U.S. Supreme Court say it is. Justices William Brennan and Thurgood Marshall consistently wrote that the death penalty was unconstitutional, including their majority opinions in Furman. Justice Harry Blackmun voted for the death penalty’s constitutionality in both Furman and Gregg, but writing in a denial of a writ of certiorari in Callins v. Collins several months before his retirement in 1994, Blackmun voiced his regrets, saying he would “no longer tinker with the machinery of death” or “coddle the Court’s delusion” that the death penalty worked in the United States. Justice Lewis Powell, a consistent vote for the death penalty, retired from the Court in 1987, 11 years after he joined a seven-justice majority in Gregg. But in a 1991 interview, he said that if he had it to do over again, he would vote the other way in every death penalty case, including the Court’s landmark decision of McCleskey v. Kemp (1987), which held that the death penalty was not racially discriminatory in its application. Combined with Justice Stevens’s remarks in Baze, that’s five votes against the death penalty’s constitutionality. (Of course, only one of those justices — Justice Stevens — remains on the court today.)

Richard Dieter, Death Penalty Information Center
Richard Dieter, executive director of the Death Penalty Information Center in Washington D.C., spoke about death penalty trends in the United States. The number of executions steadily rose between 1976, with the Court’s decision in Gregg, and the late 1990s. More jurisdictions implemented the death penalty, including Kansas and New York.

But then something happened — the case of Kirk Bloodsworth. Bloodsworth was a former Marine who had no prior criminal record. One day in 1984, he was in a park in Rosedale, Maryland, where a nine-year-old girl was raped and murdered. Some child witnesses identified Bloodsworth, who was convicted of first-degree murder and sentenced to death. Nine years after his conviction, in 1993, a DNA test exonerated Bloodsworth, who had always maintained his innocence.

“It wasn’t just the courts or lawyers who freed Kirk Bloodsworth. It was science,” Dieter said. “If it wasn’t for science, Bloodsworth might still be in prison.”

Kirk Bloodsworth became the first death row inmate to be exonerated based on DNA evidence, but he wasn’t the last. As of January 2009, 130 death row inmates have been exonerated in the U.S., including 51 between 1997 and 2004.

“That’s a disturbing number,” Dieter said.

In 1998, Northwestern University Law School hosted the first-ever exoneree conference, where each former death row inmate stood up and told his story. The event is credited with contributing to the current moratorium on executions in Illinois. See Henry Weinstein, Victims of the Justice System, L.A. Times, April 9, 2006 at B1, available at http://articles.latimes.com/2006/apr/09/local/me-wrongly9.

Death row exonerations have not been limited to DNA cases. Dieter told the story of Anthony Porter, a death row inmate in Illinois, who was convicted based on erroneous eyewitness testimony. Journalists interviewed the witness, who recanted her testimony and gave the name of the real killer. The journalists went to Milwaukee to find the man, who confessed to the murder and was later convicted. Porter was freed, and then-Illinois Gov. George Ryan commuted the death sentences of all 156 Illinois death row inmates before leaving office in 2003. See Governor Clears Illinois Death Row, BBC News, Jan. 11, 2003, available at http://news.bbc.co.uk/1/hi/world/americas/2649125.stm.

After the Illinois moratorium, the number of death sentences nationwide began to fall dramatically, from about 300 in 1999, to about 125 in 2005. That trend has been aided by jurisdictions dropping the death penalty altogether. The New York Court of Appeals held that state’s death penalty unconstitutional in 2004, and the New Jersey Legislature abolished the death penalty largely for cost and efficiency reasons in 2007.

“I think innocence has played a significant role,” Dieter said. “But clearly innocence is not the whole story.”

Executions have also dropped from a high of 98 in 1999 to 37 last year, but that trend is likely to go the other way this year. After the Court granted certiorari in Baze, there was a moratorium for several months in 2008 as states waited to hear whether the constitutionality of lethal injection would be upheld.

The vast majority of executions occur in the South — of the 37 executions nationwide last year, 95 percent of them occurred in Southern states.

Recent polls show that the public is now evenly split on the death penalty.

Dieter spoke about several cases like that of Larry Griffin, who was executed in Missouri, despite questions about his innocence. Thus far, there has not been a case in which someone has been exonerated after an execution, but should that happen, Dieter believes it would give the public real pause about keeping the death penalty.

Dieter also raised the issue of cost. The death penalty has cost the State of California $1.25 billion in 10 years, and there are nearly 670 people on California’s death row. California has not executed an inmate in more than three years, and has only executed 13 people since Gregg in 1976.

One audience member said that when he thinks about the death penalty, one person comes to mind: John Malvo. Malvo, the younger participant in the sniper shootings in Maryland and northern Virginia, was convicted and sentenced to life imprisonment without chance of parole. The audience member said that the people wanted Malvo executed, and that he believes that when a person is found guilty of first-degree murder, that’s what should happen.

“The problem has been, it just hasn’t worked,” Dieter said.