Archive for the ‘Law’ category

My New Favorite Judge

July 7, 2014

Would be Bush 41 appointee Richard Kopf*, a member of the Federal District Court bench for in Nebraska.

Why?

Because of this:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

[h/t Talking Points Memo]

William_Hogarth_004

Judge Kopf elaborates:

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynist because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception.

Kopf adds both in a disclaimer both truthful and politic that he is not saying that the majority in the Hobby Lobby decision were actually driven by the considerations that it really really looks like they were. But the point is made — and he adds the equally valid observation that there was no actual necessity for the Supremes to take the case in the first place. Such judicial passivism, he says, would have been better than this result.

In that context, the good jurist has the temerity to offer advice to his betters:

Next term is the time for the Supreme Court to go quiescent–this term and several past terms has proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu**

To which I say, Amen and Amen.

*As the TPM piece linked above reports, Kopf achieved a measure of — fame is not quite the word — notice for an earlier blog post advising young women lawyers how to dress for court.

**I do love the link that Judge Kopf kindly provided for his less internet-meme-familiar readers to that last term.

Image: William Hogarth, The Court, c. 1758. You’ve seen this one before, I know. I generally try to find a new image for every post, but this one so perfectly captures the contempt I feel for the current Court that I just keep coming back to it. Sorry.

On Money, Power, and How John Roberts Forged One More Link In The History Of White Supremacy In America

April 17, 2014

Yesterday  an essay I wrote appeared over at the Atlantic’s joint. (Originally on Ta-Nehisi Coates’ blog, the editors there moved it over to Politics after a bit.)  It’s attracted a fair amount of comment over there, including severe disdain from some folks that I infer are somewhat more right of center than your humble blogger.

In it I argue that the McCutcheon decision eliminating some campaign finance limits shows how White supremacy operates in a post slavery-post-Jim Crow-post-Civil-Rights-era environment:  not by targeting race explicitly, but by constraining the paths on which African Americans could engage and acquire power.

E11554.jpg

Here’s a taste:

A drastically shortened version of Coates’s analysis is that white supremacy—and the imposition of white power on African-American bodies and property—have been utterly interwoven through the history of American democracy, wealth and power from the beginnings of European settlement in North America. The role of the exploitation of African-American lives in the construction of American society and polity did not end in 1865. Rather, through the levers of law, lawless violence, and violence under the color of law, black American aspirations to wealth, access to capital, access to political power, a share in the advances of the social safety net and more have all been denied with greater or less efficiency. There has been change—as Coates noted in a conversation he and I had a couple of years ago, in 1860 white Americans could sell children away from their parents, and in 1865 they could not—and that is a real shift. But such beginnings did not mean that justice was being done nor equity experienced.

Once you start seeing American history through the corrective lens created by the generations of scholars and researchers on whose work Coates reports, then it becomes possible—necessary, really—to read current events in a new light. Take, for example, the McCutcheon decision that continued the Roberts Court program of gutting campaign-finance laws.

The conventional—and correct, as far as it goes—view of the outcome, enabling wealthy donors to contribute to as many candidates as they choose, is that this further tilts the political playing field towards the richest among us at the expense of every American voter. See noted analyst Jon Stewart for a succinct presentation of this view.

I then go on to cite a study that analyzed just who belongs to the exclusive club directly affected by McCutcheon — the about 1,200 people who brushed up against the limits in dispute.  After going through the predictable demographics — the group is overwhelmingly white and mostly male, I added this:

People of color are almost entirely absent from the top donor profile, and none more so than members of the community that white Americans enslaved for two centuries:

While more than one-in-six Americans live in a neighborhood that is majority African-American or Hispanic, less than one-in-50 superlimit donors do. More than 90 percent of these elite donors live in neighborhoods with a greater concentration of non- Hispanic white residents than average. African-Americans are especially underrepresented. The median elite donor lives in a neighborhood where the African-American population counts for only 1.4 percent, nine times less than the national rate.

…This is why money isn’t speech. Freedom of speech as a functional element in democratic life assumes that such freedom can be meaningfully deployed. But the unleashing of yet more money into politics allows a very limited class of people to drown out the money “speech” of everyone else—but especially those with a deep, overwhelmingly well documented history of being denied voice and presence in American political life.

That seems to me to be pretty obvious — but what really got me going, and what seems to me the crux of the matter, is that McCutcheon isn’t a stand-alone judgment:

combine…decisions [on campaign finance] with the conclusions of the court on voting rights, and you get a clear view of what the five-justice right-wing majority has done. Controlling access to the ballot has been a classic tool of white supremacy since the end of Reconstruction. It is so once again, as states seizing on the Roberts Court’s Voting Rights Act decision take aim at exactly those tools with which African Americans increased turnout and the proportion of minority voters within the electorate. There’s not even much of an attempt to disguise what’s going on.

Add all this to the Roberts decision to free states from the tyranny of being forced to accept federal funds to provide healthcare to the poor. When John Roberts declared that Obamacare’s Medicaid expansion would be optional, the decision sounded colorblind—states could deny succor to their poor of any race— [but] in practice, that is to say in the real world, this decision hits individual African Americans and their communities the hardest, as Coates wrote way back when.

I’d add to that the last step in the syllogism: make money the measure of political speech and inhibit the ability of one group to accumulate not just wages but capital…and that’s a denial of the rights of citizenship just as much as any direct attack on access to the voting booth.

White supremacy as a social reality isn’t (any more) a matter of folks in white hoods or politicians standing around with axe-handles at the ready.  It comes cloaked in elaborately distanced language, through actions that appear on the surface to be aloof from any consideration of race.  Surely campaign finance law would seem to have no connection to civil rights jurisprudence.  Perhaps as a matter of abstract argument, of judicial logic-chopping (and very selective historical memory) it doesn’t.  In the real world, it does.

I’m not arguing that Roberts and his four co-conspirators are racists. I don’t know or care what they feel or how they perceive themselves. The matter is rather, do the actions of the Roberts Court support an ongoing use of power that has a racist outcome?  That question, I think, answers itself.

A nation that can elect Barack Obama is not John Calhoun’s America; it isn’t even Strom Thurmond’s.  It’s ours, and for all the changes I’ve seen in 55 years lived between our two shining seas, it’s one that continues to tell the old story of white-erected obstacles to African Americans seeking to exercise political power.  Again, you can check out the full piece over there.

Image: Anthony van Dyck, Portrait of the Marquesa Elena Grimaldic. 1623.

I’m All For The Rule Of Law. It’s The Judges I Can’t Stand

July 7, 2013

Via today’s The New York Times,* some big-time journalism on how the FISA court is creating an alternate judiciary — at least potentially more powerful, than the already compromised public one by which we thought American citizens encountered the law:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say

….

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

Pedro_Berruguete_-_Saint_Dominic_Presiding_over_an_Auto-da-fe_(1475)

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I’m once again crashing deadlines, so I’ll leave off trying to write (n) words on a subject in which I have no particular expertise (the sound you hear is the peanut gallery cheering).  The only thing I can say both quickly and with a reasonable shot at validity is that we already know how this kind of thing, unchecked, plays out.  Secret courts trump even secret police as a threat  to both democracy and freedom of thought and expression.

We’ve seen how this works in plenty of prior examples — and not just in the bad decades of the 20th century either.  This isn’t where we should be now.

Over to you…

*This kind of piece is the reason I maintain my (Sunday) subscription to the Grey Lady.  The opinion pages may be a howling desert of intellectual mediocrity (w. the Krugman exception and a few others worthy of honorable mention) and outright mendacity (looking at you BoBo)¹.  But there is no substitute for the quality of journalism backed by real resources that the Times is capable of when it chooses.  I know it doesn’t always do so (Judith Miller, anyone).  But it still is the home of more of this kind of stuff than any other MSM outlet (that I can think of).  So, yeah, we still need the place, much as we need it do a whole lot better a lot of the time.

¹I’m not even going to go into the “It’s not nice, child, to point and laugh” division populated entirely by Master Ross Douthat.

Image:  Pedro Berruguete, Saint Dominic Presiding over an Auto-da-fe, 1475.

Even The Conservative Richard Posner…

June 27, 2013

…thinks Roberts’ voting rights decision sucked [redacted; this is a family blog].  In this Tammy Duckworth thread over at Balloon-Juice, my BJ colleague, Soonergrunt sends us to conservative jurist Richard Posner’s post at Slate that basically eviscerates the VRA opinion in terms that I’m pretty sure appelate judges do not often direct at the Chief Justice of the United States.

William_Hogarth_031

Seriously, from the very beginning of the piece, it’s no-prisoners-time:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.

Begin as you mean to go on, your honor:

… Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case.

It was not.  Why?  Because, says Judge Posner — a Reagan appointee to the 7th Circuit Court of Appeals — Chief Justice Roberts is a “crafty” incrementalist, which, translated out of collegial speech, I think means that Roberts is a slick ratf**ker:

….the real key to “stealth” jurisprudence is patient, crafty incrementalism (no conservative monopoly on that strategy, of course). It’s a strategy illustrated by Shelby’s predecessor, the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby. That was a case in which Chief Justice Roberts, again writing for the majority, criticized the same part of the Voting Rights Act, and invoked the same imaginary doctrine of “equal sovereignty,” yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step.

Posner saves the last, best bit of rhetorical disdain for his closing:

Was that a disreputable tactic, or merely a clever one?

As intended by its writer (I’m sure), that question answers itself.

Image:  William Hogarth, The Polling, from The Humours of an Election series, 1754-1755.

We All Know (Own) Our ACGTs

June 13, 2013

This is more a “hey, look at this” post than any considered analysis, but the Supremes just handed down what will probably be the biggest non-politics-centered decision of this or many sessions: you can’t patent genes.

Twins_Grace_and_Kate_Hoare_1876

Interestingly, this result was apparently not even close as a matter of law, as the decision, written by Clarence Thomas, was unanimous:

“A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” he said. “It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes.”

The case concerned Myriad Genetics which holds (held!) the patents on the BRCA 1 and 2 genes hat — as the Angelina Jolie story recently made famous — are in some variant (mutant) forms highly correlated with very nasty strains of breast and ovarian cancer.  The life and death stakes involved in access to the genetic diagnostics that could run $3,000 per test that Myriad controlled through its patents certainly frame this case — but the implications of this ruling are, simply, huge, as much biotech investment has chased sequences in a strategy that bears some resemblance to classic patent trolling.

The ruling did preserve what seems to me to be the original intent of patent law (see Lewis Hyde’s excellent Common as Air for an account of the origins of intellectual property ideas in the thinking of the American founding fathers).  You can still patent modifications and applications of technology to the raw material of nature that a mere sequence represents.

I really am just digesting this.  I’ve talked to people over the years who have been mournfully horrified by the constraints on research and the discovery of real public goods imposed by a too permissive patent regime — Jim Watson told me the same story that he’s repeated in public many times of being asked by Leo Szilard if he and Crick thought about patenting the double helix.  When Watson replied that he didn’t think it was (or should be) patentable, Szilard then said (Watson recalls) that maybe he could copyright it.  Watson and Crick’s incredulity at thought was typical for the time, but we’ve drifted far, far away from that now…and it’s good to see the pendulum swinging back.

But as I say, first, fast reactions here. This is a decisions that’s going to ring out for a while, and it will be fascinating to see what comes.

Image: John Everett Millais, Twins, 1876.

One More On Swartz (and MIT)

January 15, 2013

I want to respond to a couple of things mistermix wrote this morning over at Balloon Juice about what I had previously written concerning MIT’s response to Aaron Swartz’s death, but first, some preliminaries.

1:  This topic has become a lightening rod for a stunningly unproductive comment war between those who see Swartz as presumptively criminal who couldn’t take the heat his own actions had invited, and those who see him as  a martyr to the positive cause of internet and data freedom and to the defensive one of resistance to overweening corporate and government interests.

My own view is much closer to the side of those who see Swartz as a driven idealist, on the side of the angels, largely unprepared for real life.  It’s overwhelmingly clear that he believed deeply in acting morally according to a particular moral code and that he was aware that this commitment could bring him into conflict with existing legal (and more everyday) constraints. It is clear, to me at least, that his goals, what he thought the good was for which he was willing to enter into such conflict, is in fact a major social benefit:  information, if it doesn’t always want to be free* wants to be genuinely accessible — or rather, we as citizens, members of a polity that utterly depends on an informed electorate, need to have ready access to the words, numbers and wisdom required to perform our civic work.  Does that mean Swartz or anyone else should get out of jail free when they challenge someone else’s intellectual property claims?  No, and Swartz and his legal team did not seek do so, according to the Kevin Cullen/Boston Globe column to which mistermix linked.  For those without access to the Globe, here’s the datum:

Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

I have no problem with that proposed resolution; seems about right to me.  Much more appropriate than this:

Vincent_Willem_van_Gogh_037

That said, YMMV, on either side.

But here’s my point and my plea:  we’ve had now four threads on this matter.  I get it that some of you think otherwise, and have been fully in keeping with Balloon Juice traditions in the…how to put it…forcefulness of your expression of such views.  Now, please, just consider putting a sock in it.  The young man — I’m old enough to think of him as a very young man — is dead, and clearly suffered distress; whether or not you are convinced he was in the wrong just doesn’t f**king matter.  With absolutely no authority, and no intention of wielding a ban hammer for anything short of heinous, directly personal racism, bigotry, sexism and the like — mere insult and uninventive invective don’t cut it (that’s what pie filters are for, folks) –I’d just ask that you all try to stay on the actual argument, with some respect for the family, friends and those bereft by the loss of Aaron Swartz.  I’m asking as nicely as I can, OK?

2:   And while I’m at it, can I ask for some reflection before anyone spouts off about depression?  I’ve mentioned before that it’s been a big deal in my family, and I’m struck by the degree of careless and uninformed talk that’s run around Swartz’s loss.  No, depression should not be a get out of jail free card.  Yes, it is a serious, potentially fatal illness.  And yes, emphatically yes, I agree with one Swartz’s lawyer’s that the US Attorney’s office could and should have taken the risks posed to their defendent by the combination of a very aggressive prosecutorial approach and Swartz’s mental history:

Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

“The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

It is worth remembering that prosecutors do have specific responsibilities to those under investigation or indictment, and a penumbra of duty that includes moral judgment.  I’m pretty sure the US Attorney’s office in Boston failed to meet at least some parts of that obligation.  But again, whether or not you agree, I’d ask anyone anxious to speak up on the role depression did play in Swartz’s death and any impact it should have had on the prosecution to think hard and write carefully.  This is not an area in which a snappy retort is likely to shed light, or, as important in my book, to contain what should be sympathy in the original sense of the word for a truly terrible and intensely complicated disease.

3:  A couple of links.  There’s a memorial site up for Aaron Swartz that any  so moved might find it worthwhile to visit.  And for those of you interested in actions that honor Swartz’s ambitions, MuckRock, a site dedicated to helping folks file Freedom of Information Act requests is offering free FOIA filing for the day in Aaron Swartz’s honor.

Alright, with those out of the way, onto the argument mistermix advanced in response to my piece about MIT President Rafael Reif’s announcement made in the wake of Swartz’s suicide and his family’s direct indictment of the Institute’s role in that tragedy. On that matter, mistermix writes:

When I read Tom’s piece about MIT’s President appointing a panel to study MIT’s response to Swartz, I figured that President’s haste indicated that there were some dirty hands at MIT who wanted to kick the can down the road. And what better way to do that than to follow the blue-ribbon example of Linda P.B. Katehi, still Chancellor of the UC Davis system, who used a panel to wiggle out of any accountability for her role in the pepper spraying of the Occupy protest on her campus. It doesn’t matter what the panel reports. What matters is that the panel’s report will be a long time in coming. When the report finally arrives, the outrage at those who insisted on draconian punishments for a “crime”–from which Swartz didn’t profit, which was completely non-violent, and which probably had minimal effect on the alleged victim (JSTOR)–will be attenuated by the passage at time.

To which my first reaction is, what would you have President Reif, and MIT do?  Not investigate?  Not formalize the process, identify decisions and the timing of those choices, name names?  That’s what I expect of Hal Abelson’s panel; if that’s not what I get, I will write again in this space acknowledging my error.

But until you see the document, roll with me on my assumption (as discussed in both my prior post and by several commenters in that thread) that Abelson is the real deal, in sympathy (I think) with Swartz’s take on open access, a man of formidable intelligence, as expert as you could hope for in the specific areas of computation and information most important to this case, and of previously tested and affirmed personal integrity and intellectual courage.  He may of course screw up; he may pull punches; he may be undermined by other institutional powers.  We will find out in time.  But for now, the rest of this post follows through the notion that Reif has requested a genuine inquiry and that Abelson intends to deliver one.

Given that, mistermix’s argument boils down to two related planks:  panels are devices to avoid action, and the way that this process arrives at the desired indecision is through delay.

Vouet,_Simon_-_Father_Time_Overcome_by_Love,_Hope_and_Beauty_-_1627

You know what: mistermix is right.  Just not always — and more to the point, some version of this approach is in fact how academic (and other) institutions both work and don’t work.  I can’t speak for other universities, but in the 8 years I’ve been at MIT I’ve come both to know and value its particular data-driven culture.  Assertions do not fly well in governance here — not as rhetoric, and not as robust foundations for the decisions they may be used to justify.

More, if you want to enact faculty governance as something more than form, you have to approach certain questions this way:  I don’t believethe faculty would not accept Reif’s say-so on this or many other matters — for all that he rose to his present position through the MIT faculty ranks.  Rather, on crucial questions, the recognized approach here (and perhaps everywhere else — again, I’m a latecomer to the academy and my knowledge of its practices, as opposed to those of my home institution falls somewhere between very little and none) is to create finders and interpreters (judges) of fact independent of the central administration.

So perhaps a reasonable question is whether or not this process is anything more than form; it’s certainly not beyond the realm of possibility to think of a committee made up of faculty close to the administration, who could be trusted to keep troubling matters at bay.  But there’s also evidence that the process does not have to happen that way, at least not at the one venue for which I have direct knowledge.

As some of you may recall, a couple of months ago I interviewed my colleague Nancy Hopkins on my internet science broadcast.  Hopkins was the leader of the first panel created to assess whether or not MIT was discriminating against women faculty in ways that directly and crucially affected their research and their possibilities for advancement at the Institute.  Her panel and the one that followed it demonstrated exactly that, and produced both MIT – specific and national results as a consequence.

So, no, I don’t accept as a simple assertion of fact that Rafael Reif’s appointing a committee led by a prominent MIT scholar is prima facie evidence of the desire to kick this matter down the road.

Nor is the issue of time is important; justice delayed and all that.  But first — I don’t know when Abelson plans to report.  My guess is that it would be relatively soon, and speaking purely for me, I’d hope to hear from this panel before the end of the coming spring term in May.  (I know that’s not exactly a blazing pace, but that’s pretty quick by local standards.)

But whether or not that’s the case, its still not clear to me that taking an extended period to come to a conclusion is itself an obvious tell for the desire to sweep matters under the rug.  Rather, the test for me will be in the recommendations that flow from this investigation, and the administration’s response to those suggestions.  And anyway, taking time enough to nail one’s case is not in and of itself a sign of ill faith. Note that the Hopkins committee and its sequels took a couple of years to get their work done.  They did it in the way most likely to persuade an MIT constituency:  to prove the claim that women received less lab space than men under equivalent needs, they went out with tape measures and gathered the dimensions themselves.  That and a host of other efforts to accumulate unequivocal numbers took a while.  When their work was done, the picture was clear, and its implications unmistakable.  That it had taken a couple of years did not diminish it’s impact; rather the reverse.

So many words, when what I’m really trying to say is that simply pointing to the UC Davis travesty (I agree w. mistermix on that one) is not sufficient to arrive at the conclusion that MIT will similarly try to avoid taking institutional note of what happened here and what should be done about it.

*Why yes, damn, straight: I want you to run, not walk, to the electronic book store of your choice and buy my last work, for which I’ll score roughly $3.50 in royalties against a still-unearned-out advance.

**functionally a department, but as a historical rhetoric, MIT still boasts a Department of Humanities, of which several department-equivalents are sections.  A detail of interest to just about no one.

Images: Vincent van Gogh, Prisoners Exercising, 1890

Simon Vouet, Father Time Overcome By Love, Hope and Beauty, 1627

Science and the Law: Why Antonin Scalia is not just wrong, but incapable

August 19, 2009

Update: I’ve corrected the number of dissenters in this case from 3 to two,  Scalia and Thomas, per Jason’s comment; Justice Sotomayor, newly arrived at the court, did not take part in this case.

Upfront:  I’m not a lawyer, nor a regular student of legal matters, Supreme Court jurisprudence or Constitutional scholarship.

But such inconvenient facts should never stop a doughty blogger, so here goes.

Lee Kovarsky, a law professor at NYU, has a very smart guest post up at Obsidian Wings on the meaning of Justice Scalia’s dissent in the Troy Davis decision.  In that decision a 6-23 majority of the Court sent Davis’s murder conviction back to Federal District Court to determine whether new evidence confirms Davis’s actual innocence.  This outcome was genuinely new, the first time in 80 years that the Supremes have granted an original habeas petition, and the decision to pursue this particular line of court authority is itself entangled in Constitutional issues that Kovarsky touches on.

But I’m not here to talk about such legal issues — remember, I don’t know anything about them.  Go read the link as a starting point into the pure law side of the matter if you are interested.

What caught my eye within Kovarsky’s gloss of and response to Scalia’s argument were at least a couple of levels on which science and law intersect in the controversy that Scalia’s claims have evoked.

In brief as Kovarsky tells it, Scalia follows the line of argument laid down by Professor Paul Bator who held that knowing “truth” is in essence impossible, at least within a legal context.  Rather, the best one can ask of a judicial system is that a determination of guilt or innocence emerge from a recognizably consistent procedure.

That is not, as Kovarsky writes, a crazy position.  It even has an echo of sciencey-ness.  (What is blogging for if not to attempt stillborn neologisms?)

Think of the popular plain-language version of  the interpretation of quantum mechanics that holds that what it is possible to know about a quantum system is not the behavior of the system itself.  Rather, you know the what your instruments tell you.  We can state the measurement to the limit of precision of a given experimental apparatus, but not the “real” nature of a wave/particle or whatever.*

But it is, as Kovarsky goes on to argue, an untenable one in light of the impact of modern science on criminal law.  He cites specifically the impact of DNA evidence, though he notes that this is not the only technique that bears on determinations of guilt or innocence, and that it does not in fact apply in the Davis case.

His point, and it’s correct IMHO, is that it is no longer tenable to say that given the imperfection of human knowledge it is impossible for one court to come to a reliable determination of actual innocence, the “he-didn’t-do-it-for-sure” level of knowledge needed for a federal court to overturn a state court determination of fact (as long as there were no fatal defects in procedure).

Turn that convoluted sentence around:  Kovarsky says that Scalia and Bator behind him fail to recognize that we now have ways of really knowing certain kinds of facts.  Scientific advances allow us to state with great (not perfect, but great) authority that, e.g.,  if the relevant  DNA at the scene does not belong to John Doe, then John did not commit that particular crime.

Given the existence of scientific procedures of such relevance to criminal justice, then the old view that human knowledge is so inevitably imperfect as to restrict the concern of appelate courts to procedure rather than matters of fact cannot be accepted.

The tricky part in the argument, at least from where I sit, is the ceding to scientific methods this level of authority.  I don’t disagree — but the claim leads to the second level at which science intertwines with this case.

There is an argument within science — or at least, if not among scientists so much as within the broad area of science studies– about the quality of different kinds of scientific knowledge.

Within science studies there have been the radical views of the contingency of scientific knowledge, of course, which seem to me to be basically a red herring.**  There have been a lot of much more persuasive (to me) work done on the impact of the sociology of scientific life and the economics or political economy of scientific research that do show how the making of scientific understanding is a human activity, prey to all the ills that may attach to our endeavors.  And finally, scientists themselves are deeply aware of the issue of interpreting measurements.  The question of what it is that a given procedure actually tells you is one that comes up in every single experiment.

The point for the court is that for all the sources of uncertainty in science that scientists themselves talk about and guard against in individual experiments and observations, there are, as Kovarsky points out, things you actually know to a satisfactory level of “truth.”  And the use of DNA and other biochemical markers as exculpatory (or incriminating) evidence is one of them.

So, to buy Kovarsky’s argument, as I do, you need to buy the fact that when a scientific procedure returns a result, that result has meaning, one that is determined by a specific context of procedure and, in a sense, community standards of proper scientific process.

And one thing that interests me is that this is not part of the legal culture of knowing.  In an advocacy based system, the quality of your facts is determined by the quality of the argument you can build to defend or destroy claims of “truth.”  That’s a model followed in a lot of pseudo-scientific debates — see the strategies of argument advanced by ID/Creationist types (among whom I don’t think it accidental that one founding inspiration, Paul Johnson, was himself a lawyer), and those offered by climate change deniers.  But its not the core of scientific argument, which has much more of  “did you do it right” quality rather than “you have conceived of this procedure wrongly.”  (Much more, I say, not “exclusively.”)

To wrap up:  one of the trickiest things for a court has to be accomodating itself to real changes in human experience.  Scalia’s position was always, I think, wrong in justice terms.  It hasn’t taken DNA evidence to produce instances of people genuinely wrongly, and as Kovarsky also notes, there is no doubt that on the subsidiary question (perhaps primary to lawyers), state courts are not always reliable repositories of proper procedure.  Deference to the actual flawed courts on the ground is granted on the basis of an image of the ideal courts of law school textbooks — but in practice one of the central premises of the Bator/Scalia position is false as a matter of empirical observation.  In sum:  it is a poor excuse for a judicial system if as a matter of formal principle there is no possible judicial way for a condemned prisoner to establish actual innocence.

But whether or not you agree with that view, it is observably true that human skill at learning facts and patterns of facts about the world has changed enormously over the last four centuries, and at an extraordinarily rapid pace in the last several decades.  That transformation makes Scalia’s position wrong in essential terms as well — we can know things that his view asserts we cannot.  That  is an error that I believe his age, his education and his experience will make it vanishingly difficult for him to correct within himself.

And that leads to the twin editorial points of this story:  scientific advance is not the only but it is a big reason why the premises of Constitutional originalism are shaky to the core.  And Justice Scalia is a man past his time.

*Leave aside here the question of whether any such plain-language descriptions of the “meaning” of quantum mechanics help very much.  I like them, and they help me think about some matters, but I’m sympathetic to a kind of schizophrenic view that we know the quantum world operationally, through experiences that include typing this on a device riddled with quantum physics, and mathematically, in a symbolic language that translates only imperfectly into the kind of statements like the one above.  But here we enter an endless loop of late night dormitory discussions, in which this deponent falls silent.

**I think that studies of, for example, the contingency of class and knowledge do help in historical interpretation — no one, I think, doubts that it is valuable to understand Charles Darwin’s positioning in English and British society in grasping what he did and did not accomplish.  But Darwin’s status as a member of a family clearly lodged within the industrial gentry does not alter the fact that his finches provide a powerful case study of evolution by natural selection in action.  Again, a much longer discussion starts here, and here I get off, at least for now.

Image:  William Hogarth, 1758.


Follow

Get every new post delivered to your Inbox.

Join 8,892 other followers