Amendment XXVIII: A First Draft

Section 1. Article III, Section 1 is hereby repealed. The authority granted in Article II, Section 2 to the President to nominate and to appoint, by and with the advice and consent of the Senate, judges of the Supreme Court is hereby revoked.

Section 2. The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The Supreme Court shall have the power to hear cases before panels of some of their number and en banc, according to procedures it establishes. A resolution by a panel of the Supreme Court shall be deemed a resolution by the Supreme Court, unless it thereafter reviews the resolution en banc.

There shall be eighteen Justices of the Supreme Court, each of whom shall serve an eighteen-year term as an active Justice. Thereafter, a Justice may continue to serve by designation on lower courts and otherwise to support the judiciary. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 3. Upon a vacancy on the Supreme Court, a Justice shall be appointed by the President after nomination, unless the Senate disapproves by a vote of 3/5 of its number within 45 days of notification of the nomination. In case three nominations for a vacancy are disapproved, the Supreme Court shall pass on the professional qualifications of the disapproved nominees and any disapproved nominees for the vacancy thereafter. When the Supreme Court has returned to the Senate three qualified nominees, the Senate shall have 30 days to confirm the appointment of one of them, else the President shall appoint from among them.

A Justice who, by reason of death, retirement, removal, or otherwise, departs active service before the end of the Justice’s eighteen-year term shall be replaced according to this appointment procedure, except that the appointee shall serve as an active Justice for only the remainder of the departing Justice’s term.

Section 4. A Justice serving at the time of the ratification of this Amendment and whose term has otherwise expired shall, in order of seniority, be deemed to have been appointed in the first year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, the Justice is deemed retired.

Any other Justice shall, in order of seniority, be deemed appointed in the year the Justice was in fact appointed, but if another Justice senior has been deemed appointed that year under this Section, then the Justice is deemed appointed in the next year during which the presidency was held by the same political party as the Justice’s appointing President and in which no Justice senior has been deemed appointed. If there is no such year, then the most senior Justice appointed by a President of the same party is deemed retired and the appointments shall proceed under this Section without that Justice.

There shall be a transitional appointment procedure by which any vacancies that exist at the time of ratification are filled. For any year of the 18 years prior to ratification in which no appointment was made or deemed made by this Section, a majority of those Senators belonging to the political party of the President in office for the largest portion of that year shall appoint a Justice, who will thereafter be deemed to have been appointed in that year. Any vacancy arising within two years of ratification from the retirement of a Justice serving at the time of ratification shall be filled by this transitional procedure if the Justice's term has not expired.

References in this section to political parties do not create any novel structural role for political parties other than expediently and acceptably constituting this transitional procedure.

Overcoming Gun Violence

[Note: This post elaborates an idea Joe Miller and I explored on an episode of Oral Argument. That discussion is in places more detailed and in places less.]

This American carnage, as the president put it on the occasion of his inauguration, can indeed stop. While it is unrealistic in a country of over 300 million to believe we can eliminate all interpersonal violence, it is equally absurd to insist that mass shootings and thousands of gun suicides are as inseparable from our landscape as oxygen. To shout down even the possibility of change is not only ignorant and unimaginative, it’s callous.

To say that there is no solution to this new and deadly parade of spectacular violence is a grievous insult to all those who struggled before us, and against much greater odds, for justice and for survival. Our founders, our revolutionaries, our heroes, from Washington to Harriet Tubman to Lincoln to MLK, of course they didn’t end forever the risk of upheaval or destroy for all time all social ills. But they gave to us a fighting chance, one that is now ours to blow. Have we grown so inept and passive that the instant an actual challenge confronts us we pronounce the task politically insurmountable? Again, what a shocking insult such an attitude is to those who have come before us. We must not only try to fight evil in our time, but, more fundamentally, we must resolve to organize ourselves to do so. And we can.

Our primary problem here, as with too many other issues, is not one of human nature but of social organization. The minds and experience that could be directed to reducing gun violence are instead consumed with fending off any and all gun regulation. This dynamic has caused extensive damage not only to victims of violence but also to our body politic. I do not believe in seeking an end to politics, a perpetual bipartisanism. No, it’s important and good that we disagree with one another vehemently about things that matter. But the gun debate has become so caricatured and at the same time so stagnant that it has fostered in too many of us the insidious belief that our greatest problems are beyond our ability even to address. From it has grown a cynicism that politics cannot ever be responsive to social problems. The gun debate is a cancer that has spread to other vital issues, and it must be cured.

I propose a first step that centers directly on the political problem. It is not a suggestion of guns to ban or background checks to be performed. Before all else, we must begin rowing in the same direction, and there is a way to accomplish this critical first step: liability. Not private liability, with lawsuits, discovery, and punitive damage awards, but an unambiguously required and automatic payment by a gun manufacturer to a special fund after one of its guns causes a death. This change would not be the end of our effort to stem gun violence, but a necessary beginning that would unlock rational policymaking. A civilization cannot long exist that fails to respond deliberatively to urgent social problems. It is a damning indictment of ours and a great challenge to our existence as a great democracy that we did not respond to the mass-murder of twenty first-grade students in their classroom and six teachers and school workers. And the murders have continued. Democracy is hard work, and ours must find a way to ensure that social problems are perceived, that deliberation is had, and that efforts to solve them are implemented. The process of perceiving, considering, and responding, after all, is what distinguishes the actions of an intelligent being from the mechanics a clod of earth.

I Don’t Know Anything About Guns

Guns are the means by which almost 40,000 Americans die each year. 40,000 is a useful number to use a yardstick of risk in the United States. It’s roughly the number of people who die annually in car accidents. It’s a little less than the number of people who died from opioid overdoses in 2016. It is about the number of suicides. It’s a little more than the total of all pre- and post-natal infant deaths. It’s roughly a quarter of all deaths from all accidents. And it’s between one and two percent of all deaths. These figures are approximate, but – see here for details – 40,000 deaths marks one social problem after another.

Now if you’re a proud gun enthusiast, you and I are not going to have the same intuitions about the costs and benefits of gun ownership. The evidence is that keeping guns is, all things considered, somewhat risky. That said, we all do lots of risky things, and if the worst risks guns imposed was a heightened risk of suicide and accidental death, then maybe we could put gun ownership in the same category as smoking or motorcycle riding: things adults should be able to do if their eyes are open to the dangers.

But guns impose enormous costs that are not born entirely by gun owners and not at all by gun manufacturers. These costs are measured in medical bills, death, and grief. The one thing everyone can agree on is that this level of suffering is horrible and that it would be good to eliminate it.

I want to compromise. You see, I care nothing for guns. I know little about them other than what I’ve read and what I’ve learned watching PUBG matches on Twitch. I’m not a gun guy. If it were up to me and if I had no humility about the importance others might attach to guns, I’d propose we ban them entirely and that we confiscate the existing stock without compensation. Sounds extreme, right? Well, I don’t believe they are even close to worth their cost, that they make safety-obsessed owners much less safe, and that the fantasies they engender of fending off either bad guys or (even more ludicrously) a tyrannical government are unhealthy.

But I do understand that guns have important and unknown-to-me meanings for others and that more carful analysis of the “how maintained” and “what kinds of guns” questions could, possibly, point toward an acceptable regime of private gun ownership. How do we get there?

Automatic Liability to a Fund

If you suggest an assault weapon ban, gun people, in my experience, immediately assail the idea as ineffective and reflecting profound ignorance of what guns are and how they work. Whatever. I’ll concede that I just don’t know much about guns. I’m not the right person to decide whether and how guns and gun sales could be safer. But the beauty of economics and thoughtful politics is that I don’t have to know “the one right answer” to optimal gun production and distribution to make a boring suggestion that will help us all:

If gun manufacturers had to pay the costs of gun deaths, then a number of good things would begin to happen.

I propose that gun manufacturers be required to pay $6 million for a death caused by a firearm they manufacture. The manufacturer would be liable not to a private party but to a federal fund, which could be called the Firearm Safety Fund and be administered by the Centers for Disease Control and Prevention. Liability would be automatic and avoided only when the death is the result of a legitimate use of force by a law enforcement officer or an exercise of justifiable self defense. Such defenses to payment could be raised in an administrative hearing before the CDC (and appealed from there as any other administrative adjudication). There would be no private plaintiffs’ attorneys, no fights over punitive or compensatory damages or comparative negligence or discovery or any of the usual but often necessary sources of inefficiency in litigation. This would be closer to a death tax than a lawsuit.

The details, of course, matter. For example, I would make the findings of responsible medical examiners concerning which gun caused a death (and whether it did) conclusive for these purposes, and it would be a federal offense for any agent of a firearms manufacturer to attempt to influence such an examiner. I’d also probably discount the payment owed for gun suicides - not because such lives are less valuable but to require payment only for the excess number of successful suicides caused by guns – i.e., the number of suicides over and above what that number would be if only alternative methods of suicide were available. See, e.g., chapter two of Liza Gold, Gun Violence and Mental Illness. I’d perhaps require a bi- or triennial determination by the CDC of this figure through the normal informal rulemaking process.

This is not intended to be a perfect Pigouvian tax. The amount of the payment I suggest would be significantly less, in aggregate, than the cost of actual harms flowing from the use of guns. It would only require payment for deaths and not for injuries, which number more than twice the number of deaths. And the $6 million figure is less than what most agencies identify as the monetary value of a human life for cost-benefit analysis purposes. But perfect internalization of externalities, a theoretically dubious propositions for reasons well trodden by Ronald Coase, is not the point.

The Ordinary Benefits

First, the obvious: at least some of the costs of gun violence, accidents, and excess suicides would be spread over all gun owners rather than born primarily by victims and secondarily by society at large. That seems both fair and an appealing political argument in favor of shifting costs. Why should everyone and especially victims pay for the downsides of gun ownership? Why should we all subsidize gun manufacturers who stand alone in reaping all the profits of their activities but not a very substantial portion of their costs? Higher retail gun prices would result from the automatic payment regime, and these higher prices would reduce the rate of gun ownership, but rationally so. Of course, if you can manufacture a safer gun, it will incur less liability and so can be made cheaper. People will therefore be more likely to purchase safer guns.

All this is a traditional sort of argument for strict liability. Put the costs of injury on the entity that could most cheaply avoid or minimize them and you wind up with a system that more optimally balances costs and benefits. And so, on this ground, we might be inclined to repeal the Protection of Lawful Commerce in Arms Act, which, with some exceptions, shields gun manufacturers and dealers from liability for injuries arising from crimes committed with their products. I do not favor that and believe that the automatic CDC payment should be the exclusive form of liability. That’s because I think it would be a cleaner and more certain way to regularize the expectation of manufacturer cost.

I’m not suggesting this novel form of liability in order to achieve the most “economically efficient number of gun deaths.” There are many possible solutions to reducing gun violence, and we have eschewed all of them. I’d settle for less than optimal. No, our problem is getting anything done at all when there are powerful incentives to do nothing. And I want the manufacturer to think differently about their social role.

The Promise

The payment regime’s most important effect, and one that I hope would have positive spillover effects on other political issues, would be to make gun manufacturers a key and willing participant in stemming gun violence. When you are the one who will pay the cost of a bad outcome, you become directly concerned with preventing that outcome. Liability gives us a chance to flip the script and to get those who know these weapons best thinking hard about how to stop their being used to kill in large numbers.

Yes, manufacturers would seek to manufacture safer guns and to advertise and market in ways that minimize the risk of death. But they would also be far more likely to advocate for state and federal legal restrictions on gun ownership and sales, background checks, enforcement, and research. For the riskiest guns, manufacturers might support or even engage in gun buybacks.

Because I am not sure what the most effective mix of regulation and prohibition might be, I want to align incentives so that those who do have expertise reveal it. To be clear, we shouldn’t tax gun deaths because we think that the amount of the tax is what life is worth and that if you can pay then death is fine, but, rather, because it would alter the organization of social forces in such a way that we begin to strive for the same goal, even if we continue to disagree about means. By putting some of the costs on guns back on their manufacturers, we might even wind up with a new NRA that is committed to researching and identifying effective regulations. After all, manufacturer lobbies lobby for manufactures.

Questions

“What about the Second Amendment?” Read Part III of Scalia’s opinion in District of Columbia v. Heller. For example: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He also strongly suggests that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”

“Why do you equate the lives of children with money?” I do not. The purpose of a payment requirement is not to suggest that a manufacturer’s moral duty to the killed and maimed has been discharged with a financial transaction. Personally, I cannot imagine making a living manufacturing assault rifles. But people are different, and we cannot ignore that people do in fact make these weapons and do in fact pay nothing for the deaths that result from their work. I believe that internalizing these costs would force a change to the way they understand their work, breaking free of the ideologically pure and oppositional politics that have, in my view, corrupted their relationship to the community. Forcing a change in conceiving of one’s business from “not my concern” to “my job is making sure that never happens” is the goal. And while forcing payment will in the first instance change incentives, it just might, in the second instance, change minds and attitudes.

“But with this number of deaths, even discounting for suicide, the industry might be on the hook for over $150 billion!?!?” The costs of gun violence are shockingly high aren’t they.

“This is a ridiculous suggestion because gun manufacturers won’t be able to pay these astronomical costs and stay in business.” Drop absolutely everything else you are doing, find a quiet place, and think very, very hard about what you just said.

Lamentation

It’s not that death is unexpected. Even untimely, it demands acceptance. Perhaps the most odious snark is to criticize how others mourn a passing. I won’t do that. This year of avulsion has wrenched our future from the familiar channels of our politics, our nostalgia, and our efforts to mean something.

Deaths aren’t the only occasions for existential confrontation with ourselves. Maybe we’re struck upon seeing the surface of another planet or reading about the sterilizing jets of a gamma ray burst. But these only extend to further realms of the unimaginable the truth we learn more directly when struggling through the sands and forests of terrestrial wilderness: We are not the universe’s conceptual center. What is yet still harder won is to feel, rather than just to think, not that we are within the universe but that we in fact are the universe, our separateness an illusion and our sensed connections a pale but suggestive reflection of reality.

Jedediah Purdy warns against taking too far the belief that reality is a continuous fabric, its people, rocks, and stars not discrete phenomena but conceived as such by the mind - and this, the mind’s construction, as much an undifferentiated ripple as falling rocks or calving glaciers. As he puts it, we may be tempted, especially in this moment, to combat the myopia of self-interest by believing “biological identities are possible only because of aliens within us, the bacteria and portmanteau cells that form our so-called selves.” But this, he reminds us, is “inadequate because it does not take seriously ... that democratic community is utterly real, as real as dirt, because we are trapped in it, because the facts we majoritarian bandits choose become the facts we live with every day.”

And that is indeed the brute fact, that we do suffer, that we do fear, and that we do thrill and love. Even though we are the universe, this universe that we are imagines alternatives to the causes and effects that mark its temporal shape. It imagines joy and suffering, the very real, grounded states we believe are our own. In culture, as well as in law, it expresses as a humming multitude of minds all aware of one another, a hall of mirrors.

The deaths this year have come as repeated blows to this collective imagination. So many talents, so many hauntingly beautiful and wonderfully flawed people have left us. They stand in even greater relief against the electoral victory of Trump, a triumph of fear over imagination itself. His toddler instincts are so obviously the unrepressed failures of introspection that we all sometimes recognize bubbling up within ourselves. He secretes them as infantile demands to be adored, to be the most powerful, and to get the last hit, demands the rest of us usually damp through inner, reflective conversation. It feels too much to bear that his repeated, embarrassing blatherings are treated as important, even as we mourn the passing of adult lives of such full scope.

From music, to art, to science, to film, and even to goofy TV shows whose decades-old cathode beams still illuminate our adult minds, our culture and its pioneers are shadowy representations of the true fact of our togetherness. Their genius is ours. Their failings, ours. To say this is to engage in more than collective claiming, it is to restate the ultimate truth. While our universal body regularly sheds its skins, mostly escaping similarly universal notice, we find ourselves now ridden with cancer and wishing them back, that our body would cease its sloughing and keep warm by a hearth we wish were there.

A Politics of Decency

The greatest pleasure of my career as a law professor has been engaging with students and colleagues of diverse ideologies and backgrounds. I don’t just tolerate those who hold opposing policy preferences and core beliefs, I love them, and I have been deeply affected by conversation, laughter, and serious argument with so many. I hold no grudges and demand no deference, but I also pay the respect to those whom I teach and teach alongside not to pretend that I have no commitments or opinions. We are stronger not in spite but because of such frankness when it is accompanied by good will. I write now because this central experience in my life and the very promise of an enlightened Republic are, I fear, in grave danger. But we can do this together.

Donald Trump is immoral and indecent, and both his authoritarian tendencies and his narcissism threaten our values and institutions. I have been greatly heartened at various points along this darkest timeline by the many decent conservatives who have stood up and said no.

Take Evan McMullin, with whom I respectfully but adamantly disagree on issues ranging from the causes and significance of the national debt, health care reform, and guns. Evan, though, has been the leader we now need through his articulation of something more basic than these issues, something that should unite us all against Donald Trump. On Twitter, he has called out Trump’s conflicts of interest, his seeming alliance with authoritarians, and his lack of concern for the most vulnerable. His solution:

Now we have the opportunity, in fact the need, to claim the common ground that I know is there. That common ground is liberty & equality.

I agree. I propose thinking about our common ground in terms of the most essential way it rejects Trumpism and that encompasses a general commitment to liberty and equality: basic decency.

A politics of decency:

• rejects authoritarianism, even as it embraces meaningful disagreement concerning the metes and bounds of federalism and regulation;
• abhors sexual assault and misogyny, even as it recognizes differences in how best to combat these problems;
• will not stand for profiteering from public office, even as it contains a wide range of views on campaign finance and on the subtler questions of proper and improper influence;
• repudiates scapegoating the poor and vulnerable, even as its participants differ on the proper way to fund our civilization and the relative burdens that should be assessed;
• condemns lying to the people, even as it does not purport to deliver judgment on the trustworthiness of various conventional politicians and whether various instances of spin go too far;
• refuses to tolerate white nationalism and religious and sexual bigotry, the discarded ideologies that animated the most shameful and violent episodes of our past, even as the debate will continue over, for example, how best to overcome the badges of slavery and to be color-blind without also being blind to the lingering effects of racial castes;
• and stands against government officials who bully individual citizens, even as it encourages serious debate among its participants concerning the merits of their ideas.

Donald Trump is indecent. And if he cannot learn to stay within the guardrails of what decency requires, he must either be voted out in disgrace at the first available opportunity or impeached and removed should his transgressions go that far. We will not accept a lower bar for the conduct of Trump simply because the whole world’s expectations are already so low.

Instead, we will stand together, conservatives, liberals, and whoever, to demand that our local politicians and, especially, House representatives, hold Donald Trump strictly accountable to the demands of decency. We will attend our representatives’ town halls, participate in marches for unity, resist assaults on our core values, and help one another in the best traditions of our nation. And we will continue to do this even when some among us engage in anarchy or otherwise attempt to hijack our efforts to advance particular causes. We will condemn these distractions but not ourselves become distracted from doing what is necessary to preserve the soul of this nation.

I hope you will demand that we reject the emerging global axis of authoritarianism and that we not throw away so cheaply that which has taken 240 years of struggle to build. In basic decency to one another is the path to preserving that degree of liberty and equality we have inherited. And in that same decency, we will find the common ground on which to debate vigorously but with love how best to realize liberty and equality in the future.

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.”

Confidence

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.

Disorder

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.

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.