March 31, 2011
The Quasi-Trolley Problem
One of my favorite issues in criminal law is the choice of evils -- the rule that the defendant is justified if, setting aside certain side-constraints, he breaks the law in order to avoid or abate some other, much graver social harm. And one of the most well-known philosophical expositions of the choice of evils is Philippa Foot's and Judith Jarvis Thomson's "trolley problem": a trolley on a track is speeding out of control, and there are 2 people directly in its path. You are on the trolley, and have the power to divert the trolley to another track, where it would kill only one person. Should you do nothing or take action to divert the train?
Every so often, the choice of evils actually shows up in a real case, and it did about a week ago in the New York Court of Appeals case, People v. Freddy Rodriguez. Even more surprisingly, the case raises a quasi-trolley problem scenario. Here's what happened. Somebody named Rios parks his "overloaded box truck" on a hill, with the truck facing downhill. He turns the truck off, leaves the keys in the ignition, and goes into a store. While he's in the store, the truck goes down the hill, killing one person and seriously injuring two. But there was a dispute about how the truck got down the hill.
The government claimed that the defendant showed up drunk and wanted to play a little practical joke on Rios, so he got into the truck and drove like a lunatic down the hill. The defendant claimed that he was walking by, saw the truck move, ran and jumped into the truck as it was already starting to descend the hill, got behind the wheel, and tried desperately to pump the brakes and turn the wheel to avoid the pedestrians, all to no avail. Defendant was found guilty of manslaughter in the second degree, assault in the second degree, vehicular manslaughter in the second degree, vehicular assault in the second degree, and operating a vehicle under the influence of alcohol.
The issue was whether the defendant was entitled to a jury instruction on the choice of evils, and for some reason, the majority found that he wasn't. The majority said that for the choice of evils to apply, "there must be two evils." I think the traditional rule is that the evil chosen must be outweighed by the evil avoided, or, as the NYPL says, "according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue." Oddly enough, the Court concludes that as to the more serious charges (manslaughter 2, assault 2, and the vehicular homicide charges), "under defendant's scenario, there was no "evil" on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others."
That seems wrong to me. The evil that the defendant sought to avoid was the death of pedestrians. On his view of the case (suspicious as it may sound to a juror), he came sauntering along while drunk and, seeing a truck which was about to go screaming down a hill, he jumped into it to try to control it. That was a crime -- the crime of driving while intoxicated. His view is that he broke that law in order to advance what (I think we would all agree) was the greater good of saving the pedestrians.
One could even think about this case in terms of the trolley problem, with appropriate changes. Suppose that an intoxicated defendant jumps into a runaway trolley and assumes the controls, because he sees two people strapped to the single track directly ahead of the trolley. He is now guilty of the crime of operating a trolley while intoxicated. Suppose further that in this alternative trolley problem, there is no other track with one person on it for the defendant to switch to. In this Trolley2 problem, the defendant simply thinks that he can use the controls to rock the trolley off the rails, thereby saving the 2 people tied to the track. But despite his best efforts, it turns out that the defendant is wrong, and he ends up hitting and killing the two people. In a prosecution for the homicide of those two people, shouldn't our defendant in Trolley2 receive a choice of evils instruction? In my view, he should.
Another pro-life (but racially charged?) billboard
We've already discussed a NYC billboard from the same organization, and this one -- headed for the south side of Chicago -- is sure to trigger some heated debates. Putting aside the troubling claims (e.g., accusations of genocide) made by the sponsoring organization, I think the basic message of the billboard -- think twice about the human lives cut short by abortion -- is powerful and needed. It's obviously not a message that is needed only by the African American community, however, and to the extent that there is an implicit suggestion that President Obama was more vulnerable to abortion solely because he is African American (though born to a white mother), the billboard is on some shaky and disturbing ground. We need to account for the nexus between race and socioeconomic conditions so as not to present a misleading picture, though I realize that nuance is not the billboard's primary aim.
Allen on the Italian crucifix case
Here's John Allen, weighing in on the Lautsi case, which has already been mentioned several times here at MOJ. He writes, of the decision:
The outcome could recalibrate Catholic attitudes towards secularism at the gut level, providing a powerful boost for the “open door” approach. For bonus points, it’s also generated fresh ecumenical and inter-faith momentum … not bad for a day’s work. . . .
The decision represents a victory for the view that when faced with what seems like incomprehension and hostility, the best response is to make arguments rather than to hurl anathemas. Especially at a time when Benedict XVI has called for a “New Evangelization” in the West -- which sort of presumes an “open door” psychology -- that’s no small thing. . .
Now, I agree that arguments are to be preferred, as a vehicle for engagement, to anathemas, but -- with all due respect to Allen, who certainly knows the lay of the Church's land better than I do -- this comparison felt a bit forced to me, a bit aimed at a straw-man. It's not been my (limited) experience that many serious Catholics -- "conservative" or "liberal" -- insist that, no, best just to not engage and to instead "hurl anathemas." More "in play", it seems to me, is the disagreement between those who want to engage, in arguments (not anathemas), on certain sensitive / divisive / controversial issues with respect to which the Church's teachings are something of a scandal, and those who think that arguments about such matters should be shelved, and common ground sought elsewhere. It seems to me that the answer to this disagreement is (something like) "both"; that is, look for (through arguments, not anathemas), find, and enjoy common ground wherever it is to be had but also propose uncomfortable and challenging truths (again, in and through arguments).
Arizona bans race- and sex-based abortions
Story here. A constitutional-law-teaching friend of mine once (mischievously?) wrote an examination that involved evaluating a federal ban (one that, the exam stated, relied on Congress's power to "enforce" the 14th amendment's equal-protection requirement).
It strikes me that the law will probably not reduce by very many the number of abortions in Arizona. It does, however, I would think, have a symbolic / educational / pedagogical effect; it makes (some) people think about abortion differently, even though it will probably not limit any person's ability to obtain an abortion.
Something New from New
The other day I took up Russell Shaw’s argument that, although most Americans now identify themselves as pro-life they do not vote that way. (See here). When they enter the ballot box they are not convinced that abortion is “the great moral issue of our times” and so cast their vote based on “something else.”
I don’t deny that this is the case. I argued, however, that the unwillingness of many to vote in a way that follows their pro-life convictions may in part be due to a belief that their efforts will be unavailing, that political action cannot make a difference in the frequency of abortion. After all, Roe is still with us thirty-eight years on.
I also argued that this belief in pro-life futility, while understandable, is profoundly mistaken, and that the efficacy of pro-life legislation can be demonstrated empirically. Here I referred to the path-breaking work of Michael New.
As it turns out, Prof. New has a new article in which he examines the effect that informed consent, parental notification, and restrictions on public funding laws passed at the state level following the Supreme Court’s decisions in Webster and Casey had on the incidnce of abortion. In the paper he compares states where judges nullified anti-abortion laws with states where such laws went into effect.
The results indicate that enforced laws result in significantly larger in-state abortion declines than nullified laws. Other regression results indicated that various types of legislation had disparate but predictable effects on different subsets of the population. For instance, parental involvement laws have a large effect on the abortion rate for minors and virtually no effect on the abortion rate for adults. These results provide further evidence that anti-abortion legislation results in declines in the number of abortions that take place within the boundaries of a given state.
Check out the entire study here.
Vince Rougeau to be dean of Boston College Law School
It has been announced by Fr. Leahy that my colleague, and former MOJ-blogger, Vince Rougeau will succeed John Garvey as the Dean of Boston College Law School. Readers will certainly be familiar with Vince's writings, both popular and scholarly, regarding the intersection of Catholic Social Thought, law, and politics, including his recent book, Christians in the American Empire: Faith and Citizenship in the New World Order. Vince's departure is, of course, a loss for Notre Dame Law School, but all of us who care about the future of Boston College as an authentically and interestingly Catholic law school should see Fr. Leahy's choice as a promising sign, and wish Vince all the best.
School choice coming to Indiana
Indiana's House has passed what looks to be a meaningful, if small-scale, school-choice measure. (A number of legislators, as readers might know, had left the state for Illinois, in an effort to prevent this -- and other -- developments.) If the law passes, it will (of course) be challenged on constitutional (state and federal) grounds. It's sad, I think, that I regard it as entirely possible that a judge will yield to partisan temptations and invalidate the law. Still, no need for Puddleglummery, I suppose. This is good news.
March 30, 2011
Marriage and Procreation
Most people suppose that there is some connection between marriage, as a human institution, and procreation. After all, if humans did not reproduce sexually, nothing resembling the institution of marriage would likely have emerged in human cultures. Yet many people today are puzzled about the nature of the connection. After all, both religious and civil law recognize the validity of marriages that do not, and even cannot, produce children. So Is the link between marriage and procreation merely incidental? Or is it intrinsic? Is the value of marriage instrumental to the good of having and rearing children? Or is marriage something good-in-itself? Obviously, the answers, whatever they are, will bear in profoundly significant ways on contemporary debates about the meaning of marriage and how it should be defined for purposes of civil law and public policy. Patrick Lee, Gerard V. Bradley, and I have posted on Public Discourse an essay on the subject. Part One of the essay, entitled "Marriage and Procreation: The Intrinsic Connection" appeared on Monday and is available here:
Part Two, entitled "Marriage and Procreation: Avoiding Bad Arguments," appeared today and is available here:
This work builds upon work I've done with Sherif Girgis and Ryan Anderson in "What Is Marriage?," published in the Harvard Journal of Law and Public Policy and available here:
Links to responses to this paper by critics (including Kenji Yoshino and Andrew Koppelman), and to our replies to those critics, have previously been posted on MoJ. We're gratified that the paper has drawn a great deal of attention from critics and supporters alike. It is now by a considerable margin the most frequently downloaded paper on SSRN for the past twelve months, and it is number thirteen for frequency of downloads in the history of SSRN.
Cash for Conviction Rates?
This story is a few days old, but I flag it because while I was initially very skeptical, I am now somewhat uncertain. A DA in Colorado has instituted a system of bonuses for line ADAs: try at least 5 cases a year (that is not a large number, in my experience), reach a conviction rate of at least 70%, and receive a bonus in the range of about $1,000 to $3,000.
One important thing that will color any assessment of this plan is that we are talking about conviction rates and not total convictions (the title of the piece is potentially misleading). One might think that to the extent that the bonus system conditions a prosecutor's discretion about whether to bring a case at all, it might be a good thing. Also, and as a general matter, we want prosecutors to give better deals for weaker cases, and to try stronger cases, so perhaps the incentives in this kind of system may match up with the public interest.
On the other hand, it is certainly possible that the bonus system might make a prosecutor push to try a case that ought really to settle, thereby misallocating resources in an already resource-strapped system. On the third hand, it might be thought a good thing to provide incentives for more cases to be tried, since the risk aversion of prosecutors to trials, and the deleterious effects on the development of criminal law, is problematic (thanks to Mike Simons for this thought). On the fourth hand, suppose the year is coming to a close, and a line ADA has not met his quota. Wouldn't that ADA have incentives to go for broke and try a whole string of cases, because a few more losses would not affect his salary, but a few more wins might vault him "into the bonus"? Finally (5th hand), who makes the decision about when to try? The DA herself, or the line ADA? I can see problems here if the discretion about whether to push for trial is solely (or even mostly) in the DA's hands.
There are also potential difficulties under the ethics rules (Rule 3.8 and maybe even Rule 1.5's proscription against contingent fees in criminal cases) that are implicated. Thoughts about the justifiability of this scheme?
6th Annual Conference on Catholic Legal Thought
See the attached schedule. To request registration form please email Michael Scaperlanda at firstname.lastname@example.org.