Bet Your Life Before You Impose Death

However wrong it may be to maintain the death penalty at all, it is surely wrong to execute members of our society based on a jury’s conclusion that they are factually guilty “beyond a reasonable doubt.” As I put it a few years ago on Twitter on the evening of the execution of Troy Davis:

If you wouldn't bet your own life that Troy Davis is guilty based on this evidence, you shouldn't be willing to bet his. Simple as that.

Is that the right standard? I think in death penalty cases that it is. A risk of erroneous conviction will exist in any justice system, and, as a consequence, any society must sometimes punish the innocent (and, necessarily as further consequence of that, fail to punish the guilty) if it punishes at all. If imprisonment is one such punishment, there will always be among us the wrongfully imprisoned. One source of error, but not the only one, is inherent in the standard we ask juries to apply to determine guilt: “beyond a reasonable doubt.”


I have asked students from time to time what they think “beyond a reasonable doubt” means or should mean in terms of probabilities. They have ranged from about 60% confidence in guilt (a number I found absolutely shocking) to about 98%, with most students seemingly inclined toward 95%. I wonder, though, what this even means. One way to understand this apparently probabilistic description would be to say that the 95% threshold reflects the required level of confidence in one’s judgment such that if presented with a large enough random sample of judgments to make, a wrong judgment of guilt would be reached 5% of the time. So if we tried massive numbers of randomly selected people for crimes, 5% of the small number of people found guilty would in fact not be guilty. (Note that the higher this threshold, the greater the number of factually guilty who are found not guilty.)

There is a problem, though, with ignoring the role played by police and prosecutors, who do not conduct themselves by charging everyone with a crime and letting juries sort things out. They only charge if they believe it will lead to a plea bargain or, at worst, a guilty verdict at trial. And so our sample of suspects appearing in front of juries is not random. You might still try to argue that the erroneous conviction rate would be about 5%, because the prosecutor and police would, more or less, charge all defendants who are likely to be found guilty. So all potential defendants who they estimate are, say, 92% likely or more to have committed the crime will be charged. If any defendant whom a jury would find 95% likely to have committed a crime would be estimated 92% likely to have committed a crime by the prosecutor (and if there is no bias toward guilt among detected suspects), then all identified suspects who would be found guilty by a jury using a 95% threshold would be charged. And therefore all potential erroneous convictions among identified suspects will in fact occur. (Very limited research tells me that conviction rates at trial hover between 75% and 90% in the United States. This number reflects, though in ways too complicated for me to analyze in the few hours I have to give to this post this morning, prosecutorial success in predicting what juries will do.)

This, though, is far too simple and not only because likelihood estimates by prosecutors are not so precise. The wrongful punishment rate depends on the standard of proof that is required, yes, but also on the rate and distribution of systematic deception practiced by police and prosecutors on the one hand and defendants and their attorneys on the other, the degree of post-conviction effort put into factual review, and, obviously, much more.

Moreover, the distribution of guilt likelihoods among defendants is not uniform across all possible crimes. For some crimes, it might be nearly certain whether an individual is guilty or innocent. This depends on the definition of the crime and social facts about how it is committed and detected. Among potential sources of error: wrong identity, wrong inferences about mental state, wrong guesses about what actually occurred? For example, if it is a crime to think negatively about the king, there are some rather evident proof problems, and the way we infer a person’s thoughts will affect our stated level of certainty regarding guilt. We should expect a lot of borderline cases of this crime and thus perhaps a significant probability juries will have to wrestle with cases in and around the 95% level. If, in contrast, it is a crime to sing the national anthem of another country at a sporting event attended by more than 10,000 people and if (1) it is clearly defined statutorily and culturally what a sporting event is and (2) always clear, owing perhaps to technology and culturally embedded meticulousness, whether attendance is at least 10,000, then the rate of erroneous charging would surely be very, very low. These examples of absurd crimes are only meant to illustrate that erroneous conviction and punishment rates depend on the rate at which plausibly guilty but innocent defendants are put in front of juries and the distribution of uncertainty among the plausibly guilty.

The inequality of “reasonable doubt”

Getting the right estimate of wrongful punishment matters. It is impossible to answer whether the forced sacrifice we require of imprisoned innocents is worth the benefits of punishing the guilty without knowing how many innocents we are sacrificing and how severe their burdens are.

I strongly suspect that the level of confidence we vaguely require for conviction is far too low. Further, I think it is in practice too low because the risk of erroneous conviction is not distributed equally among us. Put differently, I hypothesize that a politically influential person’s preference for the confidence level to use in criminal trials is, generally, much lower than the strength of their preference to avoid their own (or a family member’s) wrongful conviction would imply. And further, this owes to the fact that those in a position to affect the operation of the law are far less likely to be put in jeopardy of wrongful conviction than those who lack such power. (Yes, this is Rawlsian: if people believed they were as likely to be wrongfully convicted as anyone else, they would probably prefer a higher conviction threshold than if they believed the probability of wrongful conviction fell disproportionately on others.)

A recent paper by Gross, O’Brien, and Kennedy attempts to use the unusual level of post-conviction scrutiny of death sentences to estimate, conservatively, the wrongful conviction rate:

There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. . . . . We . . . estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

And that’s conservative. In 2012 there were about 600,000 people newly imprisoned in state and federal facilities. It is likely that at least 24,000 people should not have been. (Interestingly, that is in the same neighborhood as other social risks we seem willing to take: Car and gun deaths both hover around 30,000 people a year.) All told, though, there were about seven million people in the U.S. in prison, on probation, or on parole. Among them, very likely, were at least 280,000 innocent people. 280,000.

Achieving justice in risk bearing

Part of the solution to the problem of imprisoning the innocent surely lies in more elaborate review, reducing inflated prison sentences (thus reducing the cost of uncorrected wrongful convictions), severely cutting back on reliance on eyewitness testimony, and implementing trial and police procedures that minimize racial and other biases. This is ground that has been exceedinly well covered by Brandon Garrett in, among other works, Convicting the Innocent.

Even if it is impractical to encourage a hypothetical internalization of risk of error in every jury trial, I believe it is both possible and incumbent upon us to do so in death penalty cases (which, to be up front about it, I think there should be zero of). This follows from the simple fact that the required level of confidence in guilt or innocence should not rationally be the same number in all cases.

In tort law, it has long been recognized that the level of care we expect from people in society should be based on both the probability and gravity of harm a behavior generates on the one hand and the “burden” of altering the behavior to avert the harm on the other. So whether I should install a handrail on steps should depend on whether the cost of the rail is exceeded by the risk-adjusted cost of injuries that would occur in the rail’s absence. This formulation has rather obvious problems, and a marginal analysis of the multitude of substitute behaviors would alleviate some of them. But the basic idea that more care should be taken when a greater risk of harm looms is sound.

Our criminal law does not work that way. (The standard of proof in tort law is similarly insensitive to potential damages.) We often do not even allow jurors to know the range of penalties that might result from their finding guilt. And we certainly do not instruct them to achieve a greater confidence in guilt before rendering that verdict in cases in which punishment is more severe than in cases in which it is less severe. One surely should ask whether this is sensible. But I’ll leave the general question to others for now.

Instead, let us focus on death penalty cases, in which no post-punishment error correction is possible and no compensation for wrongful punishment could possibly be adequate. Here, it would be useful to disentangle the jury’s decision whether the defendant should be punished at all, perhaps with life in prison, from whether the defendant should be put to death. Indeed, the law does this by requiring one decision as to guilt, reached (at least as a matter of the law on the books) according to “reasonable doubt,” and a second decision concerning whether the death penalty is deserved, the defendant’s guilt being assumed fully decided.

But I would propose that after the so-called “guilt phase” of a capital case, the question of guilt or innocence should return. Having decided that the defendant is guilty beyond a reasonable doubt and that at least imprisonment is justified (because the tragic but omnipresent risk of erroneous imprisonment is deemed acceptable on account of “what else can we do?”), the jury should then ask, “Are we prepared to order the defendant killed?” And this question should not assume guilt but must be sensitive to the risk of error.

Here we should ask whether it makes sense to risk another’s person’s life. To be quite honest, I think the answer to this question in this context is always no. But assuming it is ever sensible to risk the life of another when confinement is an option, it should only be on grounds that it would be fair to risk anyone’s life in case of error. That is, if the slain defendant turns out to be innocent, we would have killed an innocent person in order to achieve a broader social purpose of deterrence, incapacitation, retribution, or whatever. And whatever that purpose is, we will have determined that, despite the risk the defendant may be innocent, the execution should occur in order to further it. If that is so, then we have deemed the purpose important enough that we are willing to place upon the defendant’s very existence whatever the risk of error is to pursue it. But an innocent defendant is no more blameworthy than anyone else and has no special burden to carry such risks for us. And so we should only pursue the death penalty in a case if we would be willing to kill a randomly selected person if we turn out to be wrong about the verdict.

The price of the death penalty is that, at a rate commensurate with the aggregate confidence levels in our verdicts, we will kill innocent people who have no more cause to be killed than anyone else. That confidence level, then, simply must be calibrated so that it calls for no more risk than we would ask anyone in society to bear to achieve the death penalty’s purposes.

At the guilt phase the jury should be instructed:

You have determined that the defendant is guilty of the crimes charged beyond any reasonable doubt. This, of course, did not require you to determine to a certainty that the defendant is guilty. At this stage, I instruct you to reject the death penalty in this case, and impose life in prison without parole, unless you are so certain of the defendant’s guilt that you would offer to take his or her place and be executed should his or her innocence later be established. Of course, this would not literally be required of you. But you must not decide to impose the death penalty unless you would honestly be willing to bet your own life on the defendant’s guilt.

Could it seriously be objected that by so personalizing the decision to impose the death penalty, the jury will be unduly dissuaded from doing so? If a juror is unwilling to take this bet, what does it say about the propriety of imposing that bet on another? While, tragically, we impose that risk on the imprisoned, that is because there is no other way and because there is at least the possibility of correction and compensation.

It is, indeed, part of the price of civilization that we must all live under the threat of erroneous imprisonment. We must, though, recognize that this risk of error is not equally shared and that in death cases it represents the ultimate consequence. If we cannot share it equally, we should at the very, very least be asked to imagine that we do.

404: Argument Not Found

This is a point about one way that law changes. Gay marriage will, obviously, soon be the law of the land. It’s coming down to a question of this year or the next few, not decades. This legal revolution owes to a combination of things: broad social forces, the legal legacy of the civil rights era, popular entertainment, and, most of all, the courageous acts of gay people who have come out to their friends and family. But just how much has changed can be heard in the remarkable oral argument in the Seventh Circuit, in which a very hostile Judge Posner lambasts lawyers defending the Wisconsin and Indiana marriage bans.

Listen to excerpts here or the whole arguments here and here. Posner’s basic point was: why? What reason is there to have such a law? The answers given were, to put it charitably, unconvincing. They boil down to two: (1) The will of the people as enacted by the democratically elected legislature should be respected by judges, and (2) the long history and tradition of this particular discrimination should give judges great pause before dismantling it. The latter adverts to a Burkean avoidance of upsetting traditions for fear of the unintended consequences that may follow. Perturbing a stable and complex system should be done with caution. As Burke put it: “that which in the first instance is prejudicial may be excellent in its remoter operation” and that “it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.” (Note also that Burke himself likely would have sharply rejected the first reason.)

Posner ridiculed these two reasons at oral argument. The first could be interposed against any claim that a statute is unconstitutional and so would be doing no work additional to existing doctrines of judicial deference, doctrines that demand at least some plausible reason for a discrimination. The second could be be lodged against any effort at legal change and, for Posner’s part, would need at least some plausible guess about what might go wrong in order to be even mildly persuasive. For example, it is easy and not unreasonable to speculate that moving to no-fault divorce could, even in the absence of experience with such a regime, increase the number of divorces and cause bad social consequences. Whether that potential harm would justify foregoing the benefit that would come with change is a different question, but at least one could give a speculative reason to be cautious. The lawyers were unwilling or unable to identify any concrete harms that allowing gays to marry might cause.

Thirty years ago, the state’s lawyers would have had lots of responses to Posner’s questions. Most would have been variations on the themes of the possibility of gay contagion and the perceived ickiness of gay sex. They would have been the formalized and sanitized versions of then-common locker room jokes and solemn acknowledgments of the truths we all know deep down. And they would have won the day, because it was simply inconceivable to many that “the gay lifestyle” should be decriminalized, much less tolerated, and much, much less respected.

Here is what Chief Justice Burger wrote in Bowers v. Hardwick, concurring in order to emphasize the constitutionality of a criminal prohibition on having gay sex in one’s own home:

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described "the infamous crime against nature” as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

(Citations have been omitted.) These arguments, which stand for more than the raw fact that long-dead people made them but clearly ask that we accept their conclusions, call us to moral consensus. These kinds of responses, however, are now ruled out as bigoted, because they are clearly and deeply insulting to the gay friends and relatives that almost all of us now know that we have and whose sex lives we now think no more icky than any one else’s — and certainly less icky than many other sexual preferences the internet has foisted on the general consciousness. And so the marriage dead-enders are left with bare history and tradition, lacking any reasons one should agree with that history and those traditions.

To be clear, from the date of their writing, Burger’s arguments offended certain principles about just treatment, minority protection, and religious equality. See, e.g., Justice Blackmun's dissent. They were odious from the start in my view. But they now offend the basic political consensus. Someone making these same arguments at a dinner would cause those around them to become very uncomfortable. Maybe not in every social circle but in enough that we all know how this social struggle will end.

And so we come to the point of this post, to observe a way law can change without the amendment of words of statutes or the text of the Constitution. Here, the law being applied is the same as it has been: To be upheld, a discrimination in a law requires some justification, even if only barely rational. But the only justifications that can be considered free-standing reasons cannot be uttered in polite company these days. The lawyers defending these laws almost certainly do not want to make them and probably do not believe them. The law on gay marriage is about to change not (only) because the constitutional approach to such laws is now different but because the old arguments have been rendered unavailable by a dramatic change in social norms. Gays are now firmly within the community of equals. That is a social fact as well as a political decision, and courts are now being asked to ratify it with nothing substantial to oppose it.


The very purpose of protest is to disorder an unjust order. Those who refuse or are unable to look injustice in the eye will not see in protest a righteous defiance but rather an apparently needless assault on order, a creeping and aimless threat with no obvious limit. Such a bare assault need not be tolerated and its speakers may be safely cordoned away into free speech zones in which their words can be uttered but their efforts to change minds foiled. We preserve only their right to speak, but not their right to disorder our world in any way, not their right to affect us.

If, instead, we do see injustice, then we perceive the disordering of our neighbors’ routines as essential and at the heart of the First Amendment. The opportunity to defeat injustice through the power of words and presence is what constitutes our very self-governance.

If all that is correct, it explains why some might wish to protect the sacred rights of “sidewalk counselors” and yet support tear gassing the residents of Ferguson. At bottom it’s about a failure of empathy and not about whether our First Amendment requires toleration of risk and disruption, which it clearly does. And so the pattern of professional and amateur punditry is all too predictable. Thugs are not protected. Counselors are. Looting is the norm for “these kinds” of protests and attributable to all. Abortion clinic violence and murder is not. (The ready assimilation of muslims with terrorist groups and the steadfast separation of white, American terrorists and their faith or social groups provides another, similar contrast.) When you see a demonstration, do you see individuals and a struggle against injustice or a more or less undifferentiated group and “counterproductive” mayhem? Judging from my Facebook timeline, there are many of us – and really all of us – who could use a healthy booster shot of empathy in this regard.

Where empathy fails, perhaps a little reason could help. Is it so difficult to understand that all successful movements in the past were tarred as disruptive, counterproductive, and injurious to the very cause they espoused? Their leaders were questioned in terms of motive and character. Every incident that could possibly be used for the purpose was trotted out as proof that the movement itself was silly and incoherent. Today’s thugs, yesterday’s “communist sympathizers.” What was yesterday a silly and immoderate cause has been recognized today as a moral triumph. But today’s upheaval, of course, is only in the service of a silly and immoderte cause. The message, always, is “pay no attention to these disordering others, these fork-tongued people who are fundamentally unlike you and who will always revert to type.” The question for you is whether you will believe this. You can always choose to see in others, no matter how outwardly different, a temporarily separated instance of your very self. Maybe then the tear gas will sting.

Leveling Up

A listener to my podcast found useful a segment we did on leveling up in legal thinking. You can find that particular episode here. What follows is a slightly more careful introduction to that idea, at least as it exists now as a segment in the first draft of an introduction to a more general legal theory on which I'm working.

It may be helpful to reflect for a moment on how the legal student can be somewhat naturally led to the big questions after a time immersed in the study of practice. As with video games (and Dungeons and Dragons), continuously gained experience can win discrete jumps in understanding: levels. When I introduce the idea to students of leveling up, it never fails to earn a few chuckles and smirks. But it also helps them see what they already know but have usually not yet thought to acknowledge.

Assume for a moment that we know in rough detail what a legal system is and that it is in the business of, among other things, resolving definitively disputes among those who belong to it. Conceptually, we assume the following chart:

Dispute --> Legal System --> Judgment

The level one legal practitioner, just beginning his or her hero’s journey, would analyze the informational inputs concerning the dispute and the legal information available within the legal system and make a judgment. This judgment would, necessarily, connect the information concerning the dispute to the judgment according to some set of reasons. At level one, the practitioner is able to seize upon reasons that resolve the case.

For example, suppose one person demands payment from a business owner after being struck by a barrel that somehow fell out of the business’s second-story window. The level one practitioner, hearing these facts and various but contradictory sets of reasons for resolution urged by the two sides, believes the plaintiff should win. Perhaps he or she decides that (1) prior cases establish that negligent conduct that somehow directly (meaning, as far as the practitioner can tell, not too indirectly) injures someone creates a duty of compensation, (2) prior cases should be followed when they have a uniform implication for a present dispute, (3) that negligence should be found even when there is no direct information concerning the negligent actions themselves if the consequence of the unobserved actions can hardly be imagined to occur without negligence.

Armed with this set of reasons, the practitioner then concludes that barrels do not fall out of second-story windows without someone’s gross inattention and that there was no explanation from the business owner that would suggest otherwise. This being so, we should legally conclude the injury directly resulted from the negligence of the business owner. Because the prior cases uniformly find liability in cases like that (yes, we are traversing the void here) and because he or she is determined to follow the uniform command of precedent, the level one practitioner concludes that the legal system should order the business owner to compensate the victim.

Case after case is considered in more or less this way, at first. The rule ought to be “this,” because “that.” What about this other situation? Well there it ought to be “this other thing” for “these other reasons.” At some point, we should wake up a little and ask ourselves, “What reasons should be used to resolve cases?” It won’t do to form ephemeral attachments to reasons to resolve particular cases. We need to understand the set of reasons we will deploy a bit better. And perhaps we will argue about what constitutes a good reason and what sort of reason is not so good.

And here we are at level two: instead of plucking reasons from the ether and forming opinions about case outcomes, we are interested in the more general calculus of reasons that we will use to resolve cases. Is a concern with economic efficiency compatible with a belief that law should advance a particular conception of virtue ethics? Are there domains in which the two are compatible but other domains in which we must choose, somehow, which theory to bring to bear, and with it a cascade of reasons we will use to decide cases.

In the barrel case, should it matter what the social utility of the business’s product is and how liability might interfere with its mission? What if it’s extremely useful to some portion of the population but others think the business evil? (Maybe it’s building weapons that some believe critical for national defense and not immoral for that reason but that others believe is inherently immoral because of the particular way it maims.) Should the level of societal support for the business matter? Is there too steep a price in departing from the uniform view of the cases in situations that can be abstractly framed as “injuries proximately caused by negligence,” or would it be sound to carve out a social necessity defense?

Here, at level two, we might study the law not by cataloging its “rules” in situation after situation, but by more directly studying the reasons that seem to count and understanding why those that do not do not. Our investigation will cover different approaches that contain sets of reasons: economic efficiency, distributive justice, the problems of natural monopoly and collective action, the problem of informational asymmetries and more general imbalances in market power. At level two, our sophistication is such that we can bring a new kind of understanding to areas of the law we have not yet formally studied. We can begin to predict the kinds of arguments that will be made on each side. This, obviously, is a critical skill for an advocate.

Despite our new-found confidence, we find that we occasionally run into cases where the reasons for decision are of a type unlike the others. These are cases in which, whatever the reasons for reaching one conclusion or the other, there is yet another reason not to deploy them: that this decisionmaker is somehow the wrong one for the task of reason-choosing in this case. And so, perhaps, one argument in our barrel case is that our tribunal has never before found negligence and ordered compensation on that ground where the specific actions constituting negligence have not been described and that whether to create such reasons as would accomplish that task should be left not to us but to another institution, perhaps the legislature. Why? Well, maybe, we worry that allowing courts to find negligence without forming judgments about exactly what happened will lead to decisions to create categories of industrial output that are always compensable when they cause injury, without regard to the internal considerations of cost and benefit that a plaintiff would otherwise have some obligation to ferret out. Judges, acting case by case, might not appreciate the effects of those categorizations, making it too easy to bring lawsuits that have a chance of winning, and creating for too much social cost. Maybe broad-based hearings, across multiple industrial sectors, would be wise, and maybe the information thus adduced would counsel a more targeted solution to the problem of accidents that happen as a result of complex industrial processes. (Not that I find any of this compelling. We are talking about a kind of argument here.)

With this form of argumentation, we arrive at level three and with it a new model of the legal landscape. Our simplistic picture:

Dispute --> Legal System --> Resolution

was too simple to describe the sorts of considerations we think appropriate in many cases. A legal system is not just one decisionmaker, but many. And level three legal reasoning concerns not sifting through the reasons that will lead to case outcomes but to giving a reason to assign that level two task to a particular institution within the legal system. This is a question for the legislature. This one is for the courts. This is for an administrative agency. Those are conclusions about institutional assignment, and once we begin to speak in terms of those reasons, we command a much more sophisticated understanding of legal systems, because the decisionmaker considers whether it must apply its own reasons (in which case level two would suffice) or whether it must defer to the reasons chosen by others.

Once we have come this far, it is obvious there is yet at least one more level to attain. After all, once we say that we should ask what reason we have to assign a decision to a particular institution, we should recognize that we must have reasons for choosing among competing such reasons. And so level four is attained when the legal student recognizes that much of the work in law, and much dispute that seems bound up with substance, actually arises from disputes concerning the proper reasons to use when deciding on institutional assignment. I will become intensely interested in this sort of reasoning in much of what follows.

For now, just observe, for example, that people disagree about how courts should treat statutes (whether to confine their attention to portions of statutory text, whether to look at any of a number of dictionaries, whether to consult legislative metadata concerning the statute, whether to infer purposes and to aid those purposes, etc.). These disputes are, at bottom, disputes about what courts are and what legislatures are within the legal system, and those constitutive questions can be identified with the reasons an advocate has for believing particular sets of reasons should govern decision of the “who” question. Justice Scalia appears to believe, for example, that conservation of legitimacy is an overriding desiderata in developing theories of assignment and that unelected judges achieve legitimacy only by channeling the policies (the level two decisions) of elected bodies rather than making their own, because legitimacy arises primarily from relatively direct accountability to the people. Those who disagree with him have different level four theories of assignment. They may believe, for example, that while legitimacy is important, it is (a) achieved in part by pragmatic decisionmaking and not only by deferring or maybe (b) actually frustrated by clothing decisions in illusory certainty but is advanced by candor concerning the uncertainty of, say, constitutional or statutory meaning.

There are obviously many other potential elements of a level four theory. The point is that once we begin to discuss at this level, we can become clearer about what our actual disagreement concerns, where the irreducible and ultimately political judgment about control must lie. Level four is the most abstract of these and thus often naturally resisted by students. That is as it should be. We should only embrace abstraction when it makes our job easier and certainly, unless for sport, never when it makes our job harder. My point in this work is partly to reveal how abstraction is the process that makes legal systems possible in a practical sense.

A bit more deeply: abstraction is the way that humans naturally manage complex systems. A model, which you will recall is the basic unit of my argument in this work, is a conceptual linking of abstractions. All of the levels I have described here represent different ways of thinking about a practitioner’s job within a legal system, yes, but they also proceed from different models of what the legal system is: either including different institutions or blocks or different understandings for how those institutions process information. That claim is one way of setting up a major objective of the theory I propound here.

Atom Smasher

He is slowly dying from the inside out of a degenerative cognitive disease. With no awareness this is happening, he continues to pride himself on his good memory. He doesn’t know what year it is, how many children he has, or what he did this morning.

A little over two years ago, we sold his house, picked him up, and drove the several hours back to our house, which would be his new home. Since that day, he has been pretty much attached to me by the hip, watching soccer games, going out to eat, taking the kids to various activities, having coffee, sitting and staring into space for hours while I sit across from him trying to do my work, sometimes waiting in my office while I teach. He increasingly fiddles uselessly with watches and razors, only able to do tasks that comprise precisely one step. He loves to talk about the past — the stories of which repeat hundreds and hundreds of times, increasingly intertwining, splicing one into the other, copies upon copies spinning out like a suddenly exploded nucleus bursting with unrecognizable virus. The Eiffel Tower is the first stop on a trip to China, where they saw the Pope and got on a cruise ship to see the Kremlin. The military, malaria, boats through the Golden Gate, flying, harvested sweet potatoes stored in a mound of dirt, holding up the leaning tower, chickens fighting underneath his bedroom floor, selling boiled peanuts from his family’s farm to the mill workers changing shifts, sending a postcard from a place called “Hell” in Mexico, truck stops, Morse Code, spies, torture, a girl on a bus, businesses, dead bodies in airplanes, swimming in muddy creeks, race cars careening into the fences but landing back on the track, overcoming a carjacker with a gun. Together we spot and admire the contrails of airplanes, both of us fascinated by air travel.

He is and has been a man of his era and of the rural south. Race is everywhere and almost always salient enough to mention, but he’s sure he is no racist. And indeed, the friends he makes at daycare are not white. He loves them. Men and women are fundamentally different, and he has that particular form of religiosity that places devil, demon, and warring angel in the middle of everyday life, taking active roles even in the mundane. His inner model of the world has been one both of bootstrap pulling and of powerful forces outside our control. These days, it is a fantastical, ephemeral one, one in which a strange, flying life-form I cannot see — and he pities me for this — buzzes around power lines and into bushes, occasionally, he has been told, diving to the sea to collect salt water, which is somehow related to the power lines. He asks my son if he has ever heard of a man named Christian Turner.

After about six months with us (a particularly low period for all of us, with every point of stress a resonant tone awakening vibrations among many other point of stress), we were able to get him into an adult daycare center for six hours a day. Without that help, it’s hard to see how the situation would have been tolerable absent a full-time stay-at-home family member, especially as his friends, family, and church back home rapidly dropped off the map. It reminds me of caring for a toddler, but instead of having faith that one’s hard work would be rewarded by the development and growth of a new personality, you know this particular hard work will grants little more than the intrinsic reward that always attends acting for others.

You’re constantly reminded of your own selfishness, how much more you could be doing, the fleetingness of this existence, the contingencies that bear on your conception of your own mind, your many inadequacies in everything else you’re trying to do but failing at. Watching someone else’s brain die teaches you about yourself like an atom smasher teaches you about unsmashed atoms. It has been a great but hard won gift to be forced to accept, in the most visceral and direct way, the mind as ever-changing and temporary. It is one thing to think of one’s mind as a more or less undifferentiated part of the rest of the universe. It is quite another to feel it.

Early on I wrote an impressionistic blog post after seeing a poster that depicted the inevitable decline of the mind as a series of less and less transparent jewels, ending in the opaque luster of a pearl. And then, reflecting both on my father-in-law’s increasingly distant orbit from my reality and on my grandfather’s death, I wrote about the way we seem to die now, out of our minds, of thirst, with just enough morphine not to care so much, probably perceiving our predicament through the refractions in dream of a lifetime’s memories. I’ve also started and junked a post more than once about What I Believe, my own religion, perhaps driven by a need felt because I lack the fellowship on these matters that many others have. But like everyone else, I grapple often with what’s really there. Out of the darkness, in the flickering of light perceived with closed eyes, I see the fundamental idea that happiness lies in appreciating and truly accepting that one’s objective significance is no more or less than that of so many crumbling bits of concrete from the broken edge of a curb, weeds beginning to colonize. What does it mean that these bits of soon-to-be-dust and I are similarly fleeting manifestations of the same universe? Observing a dying brain makes what is intellectually plain into something that is emotionally plain. And that’s the trick, isn’t it: accepting emotionally what is all too easy to grasp intellectually.

At the beginning of this year, two years after the day we picked him up, we placed him in an assisted living facility. We had neared our limit in providing a good life for him, on account of his inevitably declining mobility, his complete and utter inability to entertain himself, and his chaotic swings between love and extreme dislike of the daycare and our routine. Sooner or later he would fall down our stairs, slip in the shower (which he only took when I give him realtime, step-by-step instructions and manage it), wander off, or otherwise manage to hurt himself. It soon became even more apparent. Within days of moving him in, we got a call that they needed to move him into the locked memory care center. I’ll omit the details and just say that this was hard but has gotten easier. I love him.

Many of my friends have shared their own, their family’s, or their friends’ struggles with illness, death, divorce, or mental breakdowns. And I think of all the struggle that lurks unseen beneath even the happier Facebook status updates. I certainly don’t think the burden my family has carried is or has been unusually difficult, our tragedies any worse. Surely they have been less so than those of my friends who have lost children or struggled with life-threatening diseases. I thought, though, I would share this, because maybe it will help someone else feel less alone. No matter how dark your here and now, please know that people do care. While I believe our senses of separate, subjective experience and self-importance are illusions, also illusory are our feelings of isolation.

We cannot, no matter how we might wish or pretend, drop everything and give ourselves over completely to all others in their private struggles. But we can each do our best, where we can. Over the past two years, my friends and family have given me great comfort, and for that I am forever grateful.


I think podcasts are about to become a big thing. Not that they aren’t already very popular, but I believe that they’re about to break through to a much bigger (overall) audience. My friend, Joe Miller, and I have launched our own show, Oral Argument, in part because I believe strongly in the medium. If you’ve never listened to podcasts, have only listened while sitting in front of a computer, or have only used iTunes and synching, I’m going to tell you how much easier it now is to listen to them and why you should.

Here’s what’s compelling to me: (1) podcasts are like on-demand radio that caters to your particular interests, and (2) the best of them continue the trend of doing away with that kind of show business artifice represented by laugh tracks, deep-voiced morning zoo hosts, and banal theme music and stingers. Just conversation among people you’d like to hang out with and about things you find interesting. It’s becoming easier to produce these, easier to disseminate them, and easier to listen.

This revolution is happening for many reasons, but that last point -- easier to listen -- is critical. It used to be, back in the monopolistic dark ages, that regular people just didn’t expect their computers to work very well. They certainly didn’t expect to be able to install applications without a hitch. If you wanted to install a printer, it would usually involve a call to or visit from the relative who was a “computer whiz.” Those days are over. People expect their computers to work. They expect to be able to install apps. They expect those apps will work well. When things go wrong, they blame the people that write the code, not their own technical ineptitude.

If you want to listen to podcasts, install a good podcast app on your phone. I like Instacast, Downcast, and Castro. The brand new Network looks easy to use. Give Apple’s Podcasts app a pass for now. Marco Arment’s new app, Overcast, is highly anticipated and will hopefully be the best of the lot, but it’s not out quite yet. As John Gruber has pointed out, the podcast app genre is the latest playground for designers and app makers. They’re insanely useful and young enough that radically new designs and functionality are possible.

No matter which one you use, it’s much easier to get into podcasts than you might think. You launch the app, search for shows (by name, by genre, or by popularity), preview and subscribe to them, and that’t it. Once you subscribe, the app will download episodes as they’re released. In your car or on your walks, the latest episodes of your shows will just be there, ready for you to listen. All you need to do is launch the app, go to the search field, type in Oral Argument, hit subscribe, and your phone will always have our latest episode so that all you have to do is touch the play button.

I woke up this morning to find, waiting for me in Instacast, a new episode of Oral Argument, The Flop House, The Incomparable, The Talk Show, and Accidental Tech Podcast. Others I subscribe to include Philosophy Bites, Radiolab, and Judge John Hodgman. They all have websites, but I never visit them. I heard about them, listened to an episode in the app, and kept the subscriptions. While I don't always have time to listen to all these, I do fit in a good deal of listening while walking the dog, driving, doing dishes, and other such times.

Now, I don’t know whether our little show will ever attract even a moderately-sized audience. But it doesn’t have to do so. We have fun doing it and talking to our guests. It doesn’t cost much to host it, and it’s now very simple for those who do find value in it to keep up with it. That’s what feels like the future: lots of people producing things that lots of other people (perhaps in small groups) enjoy. It’s good to be alive now.

The Information Law Crisis

Let me start with a cliché. Information and knowledge are increasingly important forms of wealth. Not only are they critical inputs in the production of physical goods, but they are now among our most dear personal possessions. What is more valuable to you, your family photos or the computer that stores them? Your access to news from your family and friends or the phone you’re using now? You may have paid more money for your phone than you do for access to Facebook (though internet access and implicit sales of private information make that a difficult question to answer), but I don’t think it’s a stretch to say that many of us would pay more to avoid the loss of online sharing than the loss of a particular phone. Even if we have preferences, the latter can be commoditized, while the former is only valuable to us because it cannot.

The world has radically changed in the last decade. Funny videos, pictures from friends’ weddings or vacations, podcasts, indie games, personal news accounts from war zones: we are awash in a mass of unique informational goods that are perhaps, in aggregate, far more important to us than the particular physical goods that we use to consume them. It is our information and capacities to produce and disseminate information, not our lands or our widgets, that many of us value most in modern life. Sustenance is relatively cheap (if only we could more generously and equitably provide it); enjoyment is becoming dependent on information access. Our law is not designed for such a world, and its creaking joints show ever more clearly the signs of crisis.

I want to make a quick and admittedly unsubstantiated point here that flows from a certain understanding: the central struggle in law is the degree to which a society’s coercive resources should counteract or reinforce existing wealth distributions. What counts as protectable value? What rights to resources does an individual have? What is he or she obligated to share? When social change fundamentally transforms the value of resources and, particularly, what individual capacities are valuable, law eventually becomes a venue for contesting the lines that divide access to the new forms of value. The claim I’ll be making in future work, and the thrust of my theory of law more generally, is that the social and economic changes of the information revolution are only now becoming realized in a legal revolution. We are held back by not seeing the relatedness of the great legal-informational disputes of the last few years: from copyright to patent to drones to grocery store loyalty cards to doxing to government surveillance. All are questions of basic entitlements in informational goods.

This Has Happened Before

Law struggled to deal with the upheavals wrought during the industrial revolution, when the hegemony of land ownership gave way to the ability to acquire machinery and invest in projects uniting labor and machines. Then, we often failed to understand that the law no longer chiefly concerned the regulation of small and large landowners and land laborers, people who could interchangeably derive profit from soil. Instead, workers were becoming more obviously a specific and mere factor of production, their individual power to withhold labor -- in crowding cities with a money economy -- no more compelling than that of so many nuts and bolts.

But unlike cogs and wheels, workers could talk with one another, come together, create their own collusive social order, and credibly threaten disharmony. With the social clashes stemming from radical changes in economic life came legal clashes. Wage and hour laws, basic housing regulations, workplace safety rules, and other statutory and judicial innovations all represented breaks from the agrarian legal past that privileged and protected the use and ownership of soil, that assumed possession of a deed was possession of an adequate measure of security in life itself. Social security required more than protection of real estate rights if human beings were to have meaningful lives while participating in ever more complicated patterns of cooperation, patterns not principally dependent on dirt.

It’s Happening Again

Of course, the economy, like all life, is always changing. But we are now in the midst of a decades-long process of turning many aspects of our daily lives over to platforms for information. Anything you can think of that might be made better by being configurable is probably on its way to becoming a software platform. Phones, watches, televisions, thermostats, cars, musical instruments. Many familiar objects can be made better by integrating or even becoming computers. They will be new platforms for changeable, complex informational interchanges (the essence of a software platform) rather than more or less inert lumps of metal, confined to prescribed informational rails from foundry to landfill. And importantly, it will be the information itself, not the particular platform, that is the most valuable. It is not yet, however, well understood how access to that information should be allocated. Instead your privacy, your informational market power, and your ability to participate and withdraw are all subject to shifting technological whims. Not considered opinion, but the dominion of whatever is possible at the moment.

Law is not currently constituted to deal well with the things we are coming to value and with the lives we want to lead. This emerging crisis can be seen most clearly in disputes over privacy and intellectual property. Government surveillance, information privacy, hacking, private surveillance, drones, patents, copyright, fair use. All these concern the drawing up of baseline entitlements to informational goods: creative products, information about our private lives, and the ability to use informational inputs to derive and enjoyment and produce new informational outputs. We have lines, but they are arbitrary and inconsistent and fail to track what matters to us.

After losing a battle in the Supreme Court to strike down the ridiculous Copyright Term Extension Act of 1998 (that retroactively extended the terms of copyrights to the lifetime of the author plus an additional seventy years), Larry Lessig lamented that he “had failed to convince them that the issue here was important.” They had failed to see how copyright’s lengthy terms truly hurt the lives of Americans. It used to be that if one made videos or writings that copied from America’s cultural heritage, some of your friends or teachers might see. It may have been technically illegal, but you would almost certainly never interact with the law. The good you produced was not valuable enough to register. Wide, cheap dissemination, the democratizing feature of the information age, changes all that. Copyright now impedes our abilities to fill videos we share with the music we love or with clips from America’s past. Patent is an absolute wreck of lost opportunities. My own ability to control the information I share now utterly gone, at the mercy of whatever technological innovations I fail to keep up with, whatever browser settings or updates I forget to use, whatever cryptographic cloak I can put on.

Consider, too, the laughable (as a policy if not formally) emphasis the law now places on information’s particular, but irrelevant, embodiment when determining whether the Constitution should permit the government to snoop. Is government tracking of your movements problematic only because government agents attached a GPS device to your car, your physical property? Is government’s ability to see inside your home, using thermal imaging or other technology, only problematic because the technology is unusual? Do we not have any reason to fear government or private collection of our communication metadata (the times and targets, but not contents, of our phone calls, for example)? On the other hand, absolute entitements to the information we produce is unworkable in a society in which crime detection also depends on information access.

My point is not at all to push a libertarian agenda but only to begin to show the mismatch between the important underlying questions of informational line-drawing and the law we have, focused as it is on attributes of these disputes that are poorly related to those questions.

The Beginning

The lines of control over information are in chaotic flux. Just as the industrial revolution led to demands for labor reform -- to protect basic human values from the “natural forces” of the market as it ripped apart the old and commoditized labor and housing -- so too the information revolution is stressing the law built up to draw compromise lines in a world of skilled labor, consolidated media companies, ample self-help opportunities to preserve privacy, and very limited means of mass distribution of intellectual works.

The barriers to mass dissemination of works of art and technology are increasingly purely legal, not technological. Our privacy is increasingly beyond our individual abilities to protect -- both from our government and from other people, corporate and individual. The ability to marshal informational goods into new ones is increasingly difficult for legal, not technical reasons. And our law fails to grapple with this new reality.

This post, obviously, is very short on specifics. But I wanted to record here some general thoughts about the teachings of disputes over copyright (as in Eldred v. Ashcroft), patent (the formalism of Myriad Genetics), government secrecy (as in the Wikileaks and Snowden sagas), and consumer privacy (our ability to lead private lives while also participating in modern life through Facebook, Google, and other information platforms or even by using credit cards or buying groceries). The common obstacle is a natural resistance to changes in our appraisal of baseline entitlements to information. Eventually there will be a true end to the informational Lochner period from which we are emerging.

State Action and Duck Dynasty

I've never watched Duck Dynasty. But apparently one of the stars said something offensive about gays and was essentially fired. Some people were upset and cited his free speech rights. Others pointed out that the First Amendment only forbids government censorship. In this case, that's right, but it's a bit more complicated than that simple answer. (My South Carolina friends may remember the very similar Maurice's BBQ / grocery store ban controversy.) I wrote a post awhile back that explains my thinking on this and why understanding the complexity of the problem reveals more depth in our law and politics.

Hating the Sin

Tolerating a gay friend by purporting to “hate the sin but love the sinner,” treating his or her experience of love and attraction as a wrong comparable to stealing or lying, may be a minimal requirement of civility, but it’s not love or friendship.

Erick Erickson, proprietor of redstate, commentator on CNN, and self-proclaimed expert on the sexual habits of former Supreme Court justices, gives us an example. Asked whether he was just concern trolling the gay rights movement when he in fact thinks gay sex is evil, he replied: “Dude, I'm a sinner and a pretty big one at that.”

Imagine if your “friends” only tolerated, but thought evil and sinful, your love for your spouse, your job, your Christianity, or any other aspect of yourself that you hold dear and believe shapes you. In an alternate reality, friends of Erickson would tolerate their Christian friend but find his beliefs and practices abhorrent, his earthly company a temporary pleasure, maybe even a bit concerned about the eternity of torture he will endure upon death. Erickson, though, admits he enjoys knowing that people whose beliefs don’t align with his will be condemned:

Personally, I’ve always taken comfort in the idea of hell fire — that God truly is just and the unrepentant will be in for a smiting.

How could you take “comfort” in that? How old are you if you have mental fantasies of a superhero burning forever people who disagree with you? How about this: if you “hate the sin” that is fundamental to the meaning a friend finds in life, don’t bother calling yourself a friend. You aren’t.

My New Favorite Things

Here’s my first annual list of great things that were new to me in 2013 – and also Arsenal. They are in no particular order. There were other great things. I forgot them.

  • Theater Is EvilMusic – Amanda Palmer’s crowd-sourced album. Honestly, I can’t remember whether I started listening last fall or after the first of the year. It was only later that I discovered she had an album of ukelele covers of Radiohead songs.
  • Judge John HodgmanPodcast – Podcasts are on my short list of things poised to get much bigger. This is one of the best.
  • Flophouse PodcastPodcast – One of the few things that makes me laugh out loud involuntarily, even with headphones and even if I’m around other people and should be quiet. Not safe for work, family, or anywhere really. Let’s just say it’s totally unsafe.
  • Anything with John Siracusa – A cheat, but John is awesome, so ...
  • The WirecutterWebsite – Now see, I’m sure I was first turned on to this site in 2012, but I don’t remember using it much until this year. Anyway, this is the review site for me. It just tells you flat out what it thinks is the best product in a given category. The best TV, the best projector, the best wireless router, the best juicer, the best standing desk, the best remote, you get the idea. They recently launched The Sweethome, which is the same concept but for home supplies.
  • Upstream Color – Movie – Unbelievably great film. Immediately earned a place next to Shutter Island. Just watch it on iTunes or Netflix. There are many interesting articles on the film, but do yourself a favor and see it before reading anything.
  • LeviathanMovie – The best depiction of the otherworldliness of our world I’ve seen in awhile. (I guess Gravity, which was amazing for some of the same reasons, should be mentioned here.) It is, at least in form, a documentary set on board several New England commercial fishing vessels. It is so disorienting that I felt like I was seeing this human activity from the perspective of a non-human. Like seeing ourselves as we really are, for the first time. Worth seeing on a large screen but not easy viewing.
  • Yeezus (asterisk) – Music – Asterisk because, well, I just don’t completely understand it. If it means what I think it means, it’s outrageously great. If it means what it says, not so much. Let’s be clear though: the sonic achievement here is undeniable. I pretty much agree with most of Lou Reed’s review, which is how I was first turned on to it. As Reed wrote: “There are moments of supreme beauty and greatness on this record, and then some of it is the same old shit.” But there’s more to it than that. I Am a God, in particular, suggests toward its end at an understanding that the hormonally driven understanding of life, living as the sequelae of the sexual urge, leads inevitably to a profound terror. But if the work as a whole doesn’t rise above its literal content – sex, money, power, women as units of currency in a world of lizard-brained men – it’s hard for me to enjoy it. And yet, it’s terrific, even if it’s not more than profane dadaism.
  • AmokMusic – It’s Thom Yorke doing new and interesting things, so obviously.
  • Max Richter’s re-composition of Vivaldi’s Four SeasonsMusic – Beautiful. Even if you don’t like Vivaldi, do yourself the favor of listening to the first fifteen minutes. Here’s a live performance.
  • Kerbal Space ProgramVideogame – Now here is something new. It’s a videogame in which you assemble rockets and explore a solar system. But not in a fake videogame way – no, using real orbital mechanics. You’ll learn what delta-v is, when you should burn at periapsis. You’ll feel elated at mastering a lunar mission and landing your little Kerbal astronaut(s) on another world. You’ll find unexpected joy in orbital rendezvous and refueling. You’ll grasp immediately the untold promise of educating kids (and ourselves!) with the next iteration of knowledge container, the escape of our worldly understanding from thinly sliced bits of amalgamated tree residue.
  • Blood MeridianBook – Kind of a cheat, because I’m in the middle of it now. I’ve never read Cormack McCarthy. But I was profoundly affected on seeing The Road. I watched it alone in my dark basement, and all I wanted to do after finishing was to go into the sunshine and hug my son. (Amazon link, but I’m not taking an affiliate cut.)
  • Arsenal – Sporting Franchise – A serious cheat, because I’ve been a fan since way back in ... 2009? Better late than never.
  • GlassboardApp and Web Service – Also not new to me in 2013. But I first put it into real use earlier this year. This app is like a private Facebook, with status updates, comments, and file sharing. You can make a board and invite others. You all see everything on the board, but no one else does. Great idea, and I hope they weather the transition in ownership, on which I hope to hear news soon.
  • Ok, one bit of self-promotion ... ok, maybe two – though I get nothing tangible for either. This book, to which I contributed a chapter I actually like (maybe I’m the only one), is now on sale from Cambridge University Press and should go on sale at Amazon soon (where you can even now look inside and see my opening pages). Who among us is uninterested in a $100 book about the public-private distinction in law? No one!
  • And, finally, an interesting Facebook discussion led to an idea that led to an article that led to a collaboration that led to this piece on gun protests in Slate, authored by the inestimably generous Dahlia Lithwick and me.

That’s all I remember. I’m sure there was much, much more. A friend reminded me today that I used to make mix tapes in middle school. So, I’ll leave it with a playlist I made.