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Clearing away confusions and debris

Richard Marshall interviews Mitch Berman.

Mitch Berman is a dude-cool philosopher of law who philosophises about the jurisprudence of sport, criminal law and constitutional theory. He thinks action replays bring with them costs. But they’re here to stay. And soccer can’t hold out forever. He wonders about paradoxes of blackmail. If I own photos of your infidelity, why can’t I sell them? He has good words for Posadas, which makes him rare. He’s always open to the idea that settled understandings rest on insecure foundations and can be changed by digging deeper. Which makes him another groove sensation.

3:AM: What made you turn to philosophy? Were you always philosophical or was it something you grew to be?

Mitch Berman: I suppose that I have always had a philosophical sensibility, though I came rather late to recognize it. I majored in political science—concentrating in political theory—in college, and took only two or three straight philosophy courses, failing to distinguish myself in any. No doubt a large part of the fault was mine: I was a pretty indifferent student across disciplines. But I suspect too that my philosophical development was stunted by the general failure of my instructors to motivate the questions we were investigating. I remember taking philosophy of law as a freshman. We started with the pure theory of law on day one. I had no idea what Kelsen was up to or why we should care.

Toward the end of my undergraduate career, the usual set of influences combined to interest me in eastern philosophies, ultimately drawing me to India and Sri Lanka to explore Buddhism. It wasn’t until law school, a couple of years later, that I started to study Western philosophy with seriousness.

3:AM: Physicists take a pop at philosophers generally. Chief Justices takes a pop at philosophers of law – like Justice Roberts’ ‘pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . .’ Why should lawyers take heed of philosophy?

MB: There are at least two reasons. First, some legal norms demand on their own terms that we incorporate philosophical understandings. Rules or principles of criminal law, constitutional law and even contract law, for example, will often explicitly invoke normative concepts like blameworthiness or equality or duress or coercion. In cases like this, philosophical understanding is made legally relevant in much the same way that historical understanding is made legally relevant by interpretive principles that make the legal meaning or content of an enactment depend upon the understandings or purposes of some set of historical actors.

The second reason is more interesting. A central difference between legal inquiry and philosophical inquiry, in my view, is that the former but not the latter can come to rest at stopping points created by convention and practice. Somebody recently wrote — I think it was Delia Graff Fara — that we do philosophy “by subjecting our most commonly or firmly held beliefs to what would otherwise be perversely strict scrutiny.” I think that’s right. To engage in philosophy is to keep asking “what does that mean?” or “what makes it so?” or “how do we know that is so?” well beyond the point at which most people would have lost patience or interest. If this is broadly right, it’s important for the lawyer or law student to understand that just because she is entitled to stop inquiring beyond a certain point, that doesn’t mean that she always must stop there. A good lawyer should always be prepared to at least try to unsettle settled legal understandings when in the interests of her client. To be always open to the possibility that settled understandings rest on insecure foundations and can therefore be changed by deeper digging is to embrace a fundamentally philosophic frame of mind. At least that’s how it looks to me.

3:AM: You disagree with the distinction between justification and excuse as used in law: justification defences say that an actor’s behaviour wasn’t immoral: an excuse defence says the behaviour was wrong but not morally blameworthy. So what’s wrong with the distinction?

MB: I don’t think I’d quite say that I disagree with the law’s use of the justification/excuse distinction; rather, I disagree with the predominant academic take on that distinction. The prevailing view among criminal law theorists is that the categories of justification and excuse have the same content both in ethics and in law, such that a defense is properly classified as a justification if and only if the conduct it covers is not morally wrongful, all things considered. I believe, in contrast, that justification and excuse serve the same structural or logical functions across normative discourses but may well have different content. On my view, a defense is properly classified as a justification if the conduct it covers is permissible as a matter of criminal law, whether or not it is morally permissible. A defense is an excuse if it provides that an actor should not be condemned and punished for engaging in conduct that does violate the law. To deploy the old Benthamite distinction, helpfully glossed by the legal philosopher Meir Dan-Cohen, justifications pertain to the law’s conduct rules, excuses reside within the decision rules.

As an illustration, consider the self-defense rule — sometimes called the “castle doctrine” — that permits people to use deadly force even without availing themselves of a safe opportunity to retreat. (It’s an extremely common rule, not always taken to the pernicious extremes that Florida and my home state of Texas, marching to the NRA’s tune, have taken it.) This is part of the action – guiding conduct rules of the criminal law, hence is a justification for purposes of criminal law classification, even if it is not morally justifiable to take advantage of this particular legal permission. It is possible, then, that George Zimmerman was legally justified in shooting Trayvon Martin, and not merely legally excused, even though he was not morally justified. So much the worse for the law, I would say.

3:AM: Is this a distinction that you think should have been applied to the nightmare case of Kesen Hu? Can you say something about what this case was about and why you thought the law should just lay off in this case? Did it?

MB: Kesen Hu forgot to drop off his 18-month-old son at day care one morning and ended up leaving the boy in the family’s minivan when he reached his workplace. When he suddenly remembered the child some hours later, and ran down to the parking lot, it was too late: the boy was dead. An absolute nightmare, as you say. And a less exceptional one than many people might suspect. I read somewhere that more than 500 children in the United States have died over the past 15 years from being left in a hot car.

How should the law respond? Often, prosecutors press charges for criminally negligent homicide or some similar offense. Hu himself was prosecuted for child endangerment, a state jail felony carrying a sentence of up to two years. The prosecution struck me as unjust for at least two reasons, both of considerable philosophical interest. The first concerns the moral status of negligence, in the sense of inadvertence to a risk. The dominant view in Anglophone criminal law is that it is at least presumptively unjust to punish somebody who is not morally blameworthy or who lacks negative desert, or something of the sort. Roughly speaking, this is the old common law principle that no crime exists and no punishment should attach absent mens rea. Putting incompatibilist worries aside and thus accepting arguendo that people can be and sometimes are morally blameworthy for their choices or conduct, there remains the question of whether and under what circumstances one can be blameworthy for inadvertence.

Basically, I’m disposed to think (agreeing, in broad strokes, with Holly Smith) that inadvertence can be blameworthy but only when it is traceable, in the right sorts of ways, to morally deficient upstream choices. In some cases when parents forget their children in cars, with disastrous consequences, traceability is satisfied. Whether it was satisfied in Hu’s case, however, is doubtful. By all accounts, he was a loving and conscientious father, and the scary truth, I think, is that mistakes or forgetfulness happen to the best of us. So there was good reason to believe that moral blameworthiness is a necessary condition for the imposition of criminal punishment and that Hu wasn’t morally blameworthy.

But suppose he was. All bets aren’t off, though, because it is generally agreed not only that nobody should be punished who isn’t morally blameworthy, but also that a blameworthy wrongdoer shouldn’t be punished more than she deserves. If this latter claim is true (and I happen to believe that matters are a little more complicated than this, but not in ways relevant to the present issue), then we should worry about whether a wrongdoer’s extra-juridical “punishment” or suffering can ever count for purposes of legal punishment. That is, is it ever unjust for the state to inflict punishment on somebody on the grounds that she has “already suffered enough”? This is, in my view, one of the more difficult and important as yet undertheorized questions with which philosophers of the criminal law should grapple. It seems plausible to me that the answer to this question is yes and that, if it is, defendants like Kesen Hu are quintessentially appropriate beneficiaries.

Although, as I said, cases like Hu’s arise not so infrequently, Hu was prosecuted right outside Austin. I wrote an op-ed in the local newspaper urging the DA to drop the case. Not long thereafter, the DA did allow Hu to avoid prison by pleading guilty to misdemeanor child endangerment charges. I don’t flatter myself to think that my short contribution influenced the prosecutor’s decision at all. But it was a good outcome.

3:AM: The removal of Dennis Kucinich, the good republican who made sane points against the war in Iraq against Cheney and Bush Jr, by bad ones, was due to gerrymandering. In your paper about gerrymandering you make the case that excessive partisanship in redistricting is unconstitutional. This is part of a bigger concern of yours which is about general fairness and justice which runs through most of your work as I read it. Is that right? But you also say that crafting standards that are fair, that administer this constitutional norm is really really hard. Are you optimistic that gaps between constitutional norms and actual practice are bridgeable, especially when we’re talking about partisanship where the forces against fairness are really powerful?

MB: It’s interesting to me that you read my work differently than I do. I like fairness and justice as much as the next guy (or much more so, my parents would say), but I very rarely seek, in my academic writing, to argue about what justice or fairness requires. I’m generally trying, in a quasi-Wittgensteinian spirit, to clear away confusion and debris and thereby to enable straightforwardly normative argumentation to proceed on straightforwardly normative terms. Putting aside pieces written for a lay audience, like my op-ed about Kesen Hu, I’d have thought that fairness and justice are generally offstage in my scholarship.

My work on justification and excuse that we just discussed is a good example. A central impetus for my project was my disagreement with theorists who sought to derive conclusions about the proper content of the criminal law from essentially conceptual inquiries into the difference between justification and excuse. In contrast, under the rather thin conception of the difference between these two concepts that I advanced, theorists or law reformers who want the law to have this or that content would have to defend their preferred positions with moral and prudential arguments. And I generally think that’s not my department. My analysis of justification and excuse was intended to be deflationary.

Now take my work on partisan gerrymandering. I do believe that it is a corrupt and destructive practice. I also believe that, properly understood, the U.S. Constitution prohibits it. But I did not defend either of those claims in my work on the subject. Instead, I started from the observation that, in a 2004 case, all nine Justices of the Supreme Court agreed that “excessive” partisanship in redistricting is unconstitutional. What they disagreed about was whether this supposed constitutional rule or norm was judicially manageable. A plurality of the Court concluded that it wasn’t, and therefore that the judiciary should not enforce this particular constitutional prohibition. My contribution to the debate was to explain that the questions of whether the constitutional norm, properly understood, is itself judicially manageable and whether the Court could and should craft judicially manageable rules to administer that constitutional norm are distinct.

American constitutional theorists had increasingly recognized that much of the judiciary’s output in constitutional adjudication was something other than a statement of what the reviewing court understood the Constitution to mean or direct or provide of its own force. Instead, many rules of constitutional law are judicially crafted rules intended to sensibly implement or administer the interpreted norms. That is a descriptive claim that I have labeled “the two-output thesis.” Whether it is legitimate for courts to craft implementing rules that are non-identical to and often more expansive than the constitutional rules themselves, and then enforce these implementing rules against the coordinate branches, is a separate question. In a characteristically forceful 2000 opinion, Justice Scalia answered that latter question in the negative. In a 2004 article, ‘Constitutional Decision Rules’, I conceptualized the distinction between judicially interpreted norms and judicially constructed doctrine in a slightly different way than had previous theorists—a way, I argued, that showed the latter to be ineliminable and therefore necessarily legitimate.

My work on partisan gerrymandering was intended as an application of my more general conceptualization of the logical structure of constitutional adjudication. I wasn’t trying to persuade anyone that the Constitution, rightly interpreted, prohibits excessive partisanship in redistricting although, as I said above, I did and do believe that to be the case. I was trying to explain, just by showing how things fit together, that Justices who shared that view and wished to do something about it had more tools at their disposal than they seemed to appreciate.

Am I optimistic that the Court will exercise its capacity to do something about the problem of partisan gerrymandering? Not terribly. But I’m also far from confident in my ability to predict the course of legal and political change. Maybe I’ll be pleasantly surprised.

3:AM: In that paper you say that there’s a stage when lawyers should ask social scientists for help and data. Do you think law is too insulated from other disciplines that could help? So in philosophical domains like epistemology and ethics we find philosophers working alongside cognitive scientists and neurologists, and the xphi movement and people like Eric Schwitzgebel and Tamar Gendler doing work that shakes up presupposed norms. In economics Paul Seabright is challenging economists to look at the facts of cognition and decision-making rather than fantasise. Do you sympathise with this?

MB: I’m not sure how insulated law is from other disciplines. Surely the fundamental trend is toward ever-greater interdisciplinarity. Not only do more and more law faculty have advanced degrees in other disciplines (especially economics, political science, history, and philosophy), but it’s probably also true that more of these interdisciplinary scholars are pretty strong in their other disciplines than used to be the case. Furthermore, law faculties are increasingly willing to make part-time or even full-time appointments to scholars in other disciplines who lack formal legal training. For a complex of reasons, I believe that law has something of a natural advantage as a broker among disciplines. So I think this trend is both extremely desirable and very likely to continue. That said, I also believe that, while law isn’t exactly an “autonomous” discipline, it’s not at all reducible to other disciplines, even in combination. So the challenge for law faculties going forward is to successfully integrate greater interdisciplinarity with excellent traditional legal scholarship.

As for my own work, well, I’m an armchair guy. But that’s testament to my particular tastes and abilities. It’s not a view about what sort of philosophical work should be undertaken, or about what’s most of value. The experimental work with which I have some familiarity strikes me hugely interesting.

3:AM: What you’re best known for is your work on the use of the replay system in the NFL. Here in the UK there’s a constant call to have something like it brought in to adjudicate tough calls in football (soccer). It’s already here in Wimbledon (tennis) and the Olympics have it. Those wanting it say that it will reduce error. But you have warnings from the NFL don’t you? Can you explain why replay systems aren’t problem free?

MB: I’m best known for my work on instant replay? Well, that’s a buzz kill. Although you might well be right, I’m going to interpret your observation more expansively as a claim about my role in birthing or promoting the nascent field of which my paper on instant replay is a part — a field that I have dubbed “the jurisprudence of sport.” (It’s fair to think of this field as a neighborhood within the philosophy of sport.) Jurisprudes have long drawn on games and sports to illuminate problems or principles in law. Well-known examples could be drawn from Hart, Dworkin, and Rawls. But this attention has generally been entirely ad hoc. I have argued that organized sports are legal systems of a sort and therefore that legal theorists could learn a great deal from attending to sports in a sustained and systematic way. I first presented this claim in an article that explored whether, as the commonly heard cry “let ‘em play” would have it, some rules of some sports ought to be enforced less strictly at “crunch time.”

The use of instant replay to review on-field calls is really just an instance of appellate review and therefore a natural case study within the jurisprudence of sport. We might suspect either that the law’s settled principles for crafting systems of appellate review would usefully inform the optimal design of instant replay in sports or that successful instant replay systems might tell jurists something new and interesting about the design of appellate review in law. Or perhaps illumination will be bi-directional.

In American football — both in the NFL and at the collegiate level—on-field calls are upheld unless the replay provides “indisputable” visual evidence that the call was wrong. That’s a strikingly demanding standard, one that seems all but certain to result in more total final errors — the aggregate of reversals of initially correct calls and affirmances of initially incorrect calls — than would a less demanding standard. I tried to figure out what could be said in favor of such a demanding standard, but I ultimately concluded that it should be lowered. That conclusion is not itself of interest to persons who don’t follow American football or sports more generally. But I hope that some pieces of the analysis are of more general jurisprudential and philosophical interest. For example — and this is just a teaser — I think that the investigation just might suggest some lessons of importance regarding the relationships among desert, entitlement, and justice.

I guess that this answer isn’t fully responsive to your question. So I’ll just add my opinion that decision-aid technology is here to stay and that soccer can’t hold out indefinitely.

3:AM: You’ve engaged with the ‘elegant question’ of the ‘greater-includes-the-lesser’ question. You discussed this in the context of Puorto Rico and whether it should ban advertising of gambling or not. However, it seems that the principles of ‘commercial speech’ is important beyond just that particular case. It’s basically at the heart of the issue as to whether commercial speech advertising cigarettes, prostitution and gambling, say, should be protected in the same way as other speech, such as Huckleberry Finn or Ulysses. Can you say something about how this pans out for you and what the legal status of commercial speech is for you?

MB: Here’s a quick sketch of the relevant jurisprudential context. Some categories of expression — obscenity, child pornography, criminal solicitation, copyright violations, and a few others — are deemed (more or less) outside of the First Amendment’s protection. But the Court’s general approach—and most commentators agree with this, I think — has been that if some category of speech is protected, it’s fully protected. That is, the Court has been reasonably comfortable with classifying expression as “in” or “out,” and not at all comfortable with classifying covered expression as “high value” or “low value.” Thus, non-obscene sexually explicit films are subject to the same level of judicial protection as is core political speech.

Commercial speech was for a long time the most conspicuous exception to this principle, as the courts subjected regulations of advertising to an intermediate level of scrutiny less searching than the “strict scrutiny” it applied to regulations of other types of expression. In a 1986 case called ‘Posadas’, a narrow majority of the Supreme Court applied this intermediate scrutiny to uphold a Puerto Rican law that barred island casinos from advertising in the local media. In what seemed like an alternative rationale, the majority also observed that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.”

As it happens, ‘Posadas’ was perhaps the high-water mark for treating commercial speech differently from other categories of expression. Scholars savaged the opinion, and within a decade the Court had disavowed its embrace of the greater-includes-the-lesser. Furthermore, Justices have increasingly raised doubts about the propriety of treating commercial speech as of lesser value than other forms of expression or of subjecting regulations of advertising to less than strict scrutiny. The doctrinal status of commercial speech today is a little unclear.

I might be the only constitutional scholar ever to have had a good word for ‘Posadas’. To be sure, the greater-includes-the-lesser is a logical fallacy. The Court was surely wrong to suggest that a state’s power to prohibit some activity necessarily includes the power to ban advertising about it. But there is far more to the instinct than anyone has given the Court credit for. Regulations of advertising differ from most other regulations of expression in an important respect: they can often be conceptualized as conditional offers to be permitted to engage in some conduct that the state is constitutionally entitled to prohibit. Puerto Rico can be understood to have said to persons or entities that wished to operate casinos: “We’ll allow you to operate a casino—as we might not—on the condition that you agree not to advertise it to the locals.” A criminal ban on my criticizing the administration for its foreign policy cannot be modeled in that way. The “benefit” on offer — my staying out of prison — is not something that the state may withhold.

If we understand regulations of commercial advertising in this way, we can see that they instantiate a far more general phenomenon: offers of a benefit that the state is not obligated to provide, conditioned on the offeree’s waiver of a constitutional right. Offers that assume this form are nearly ubiquitous across doctrinal areas: public welfare benefits are often conditioned on the recipients’ agreement to submit to suspicionless searches of their homes that would otherwise violate the Fourth Amendment; the federal government conditions grants to states on their enactment of regulatory schemes that the feds could not mandate; local land use commissions condition zoning variances on landowners’ grants of easements that the state could not take without paying just compensation; even plea bargains are really just offers of sentences lower than the state could otherwise impose conditioned on defendants’ waiver of their rights to jury trial; and so on. For decades, courts and scholars have struggled to articulate general principles that can determine when such conditional offers are permissible, and when they aren’t. (The case law and scholarship travel under the heading of the “unconstitutional conditions doctrine,” but the “conditional offer problem” would be more apt, I think.) In a 2001 article, I offered my own solution to that puzzle—a solution that drew in turn on my previous effort to solve “the paradox of blackmail.”

The solution I proposed is complicated. I won’t try your readers’ patience with the details. The key point is just that regulations of advertising can often be fairly conceptualized as conditional offers, and thus are properly analyzed under a trans-substantive framework for resolving the conditional offer problem. Because the correct framework is complex, it does not follow that all regulations of commercial speech are constitutional. Not at all. But it does follow, I think, that many are—even without characterizing commercial speech as “low value.” I confess to being somewhat fond of my solution to the unconstitutional conditions problem and of its application to the commercial speech problem despite the fact that, as far as I can tell, it has won zero converts. That’s especially unfortunate because the same analysis might plausibly justify other regulations of corporate speech, including the restrictions on independent political expenditures by corporations and unions that the Supreme Court struck down in its momentous 2010 Citizens United decision.

3:AM: You mention that your proposed solution to the conditional offer problem derives from your analysis of the “paradox of blackmail.” Would you say a little about that paradox and your approach to solving it?

MB: Take the paradigmatic case: a conditional threat to reveal someone’s infidelity. Suppose you know that I’ve been having an extramarital affair (which you don’t, because I haven’t). You’re free to tell my wife. We might fairly say you have a right to do so. But generally speaking, you are free to negotiate payment in exchange for refraining from exercising a right. We could put this point in property terms too. Suppose not only that you knew about my affair but that you had photos. They’re your property. One of the nice features about property is that, normally, you can sell it. So we might reasonably expect that you would be allowed to offer me your silence and the photos, in exchange for cash. But you’re not: that would be the crime of blackmail. The puzzle is to justify the criminalization of conditional proposals like this, or to explain why it isn’t justifiable.

The puzzle has attracted thinkers across disciplines, from philosophers like Feinberg and Nozick to economists like Nobel Laureate Ronald Coase and Judge Richard Posner. Economists tend to justify criminalization as a way to deter an economically wasteful practice (blackmailers expend resources to dig up dirt only to rebury it). Philosophers have taken a variety of approaches, but probably a majority start from the assumption that the key is to explain how the conditional threat to Φ could be more wrongful than Φing.

I believe, in contrast, that the key is to recognize that the conditional threat to reveal the information (i.e., the conditional offer of silence) has evidentiary, and not aggravating, significance. Ordinarily, it licenses (or, at a minimum, strengthens) an inference that the person making the conditional proposal would himself be acting with the wrong sorts of beliefs or motives were he to do as he threatens. In particular, he would be knowingly causing harm without actually believing that doing so is morally justified on the facts of the particular case, or without being actually moved by the justificatory reasons as might exist. Under certain circumstances, I believe, an actor’s beliefs and motives bear constitutively on the moral quality of her action, and are relevant not merely to agent evaluations. That’s pretty brutally condensed, of course, but the core ideas, again, are that the disclosure itself would be wrongful if done without the right sorts of beliefs and/or motives and that the fact of the conditional offer of silence is good evidence (for reasons, admittedly, I have not spelled out for you) that were the actor to make the threatened disclosure it would be without the beliefs or motives necessary to justify the knowing infliction of harm.

3:AM: Under the radar is the obscure Pierce County v Guillen case, which upheld on commercial clause grounds the law preventing information collected in various highway safety programs from being admitted as evidence in state or federal trials. Is this important because it is a move restricting the surveillance state? What’s so significant about this?

MB: My interest in Guillen — a case that earns its obscurity honestly — has nothing to do with the surveillance state. When the case reached the Supreme Court from a state supreme court, it raised seemingly difficult questions under the conditional spending doctrine — the rules governing conditional federal grants to the states. As I noted above, the conditional spending doctrine falls under the broader unconstitutional conditions doctrine, or conditional offer problem, and is therefore a subject on which I had significant interest apart from the particulars of the statute at issue in Guillen. So I co-wrote a brief analyzing the spending issues with a colleague, Lynn Baker, who had first turned me on to the case. To everyone’s surprise, the Court unanimously upheld the challenged legislation as a valid exercise of Congress’s commerce power and therefore did not reach questions concerning whether the legislation could also stand as an exercise of Congress’s conditional spending power. In so doing, the Court said some things about the commerce power that implicated views I had by then developed regarding the relationship between judicial interpretations of constitutional meaning and judicially crafted doctrine — what I call “decision rules” — designed to administer that meaning. In the Commerce Clause context, as in the partisan gerrymandering context, the Court is often led astray by its failure to appreciate that interpreting the Constitution and crafting doctrine can be two distinct tasks, both legitimate.

3:AM: It’s hard in the UK not to see the Supreme Court as being actively politically partisan in its recent activities around Obamas’ Health Care programme. Brian Leiter continually posts news of things happening that seems blatantly wrong. This seems shocking and out of order. Is the Supreme Court in the USA unhealthily contemptuous of justice and merely a tool of the plutocrats? Is it different from how it used to be?

MB: After ‘Bush v. Gore’, anybody who expresses surprise at what appears to be politically partisan decision making by the Supreme Court looks to be playing the part of Captain Renault. Of course, many of my more conservative friends thought that the Warren Court had taught that lesson long before ‘Bush v. Gore’, and wonder aloud that it took others of us so long to see it. Maybe it all depends upon whose ox is being gored. That said, I confess that, from where I sit, it doesn’t look like an especially admirable group of Justices.

3:AM: The role of the American Legislative Exchange Council is funded by Exxon Mobil, the Olin and Scaife families, has foundations tied to the Koch Industries and includes many huge corporations. Is the law generally no longer able to do what it was supposed to do? Are the lessons of the Arab Spring and other pro-democracy revolutions and upheavals relevant in a way that John Locke, founder of the US model of liberal government, would have understood?

MB: Oh, the law continues to do some of the things it’s supposed to do, including some things that are tremendously important. But it’s probably true that liberals and progressives, overly enamored with the Warren-Brennan Court, have been unrealistically optimistic about the capacity of law to effectuate major change that disserves the interests of the powerful. As for the lessons of the Arab Spring, I guess I’m with Zhou Enlai: (much) too soon to tell.

3:AM: There’s a huge sense of unfairness and injustice more or less everywhere. Plutocrats get richer, more powerful and more protected. The rest get poorer, weaker and more vulnerable. Are you optimistic or pessimistic generally about the current political and social context?

MB: I vacillate, depending on the particular issue and on my mood. On some issues of great social importance, we are living through profoundly positive changes. The LGBT community and the disabled community too have benefitted from huge gains on the ledger of justice. And I’m also pretty optimistic about race. Economic justice is, sadly, a different story. It seems that, whenever my personal optimism level is ticking upward, I read a story like the one in the New York Times about Ed Conard, the former Bain managing director and major Romney donor, who has written a long book predicated, it seems, on the fundamental premise that personal income in the contemporary developed world really does correspond extraordinarily closely to one’s contributions to human welfare. By all accounts, Conard is a super smart guy. It’s just hard to get inside the head of somebody who believes that the problem with economic inequality today is that there’s not enough of it.

I do worry that the American political system is close to dysfunctional, thanks in part to two factors we’ve already touched upon: partisan gerrymandering (aided by remarkably detailed databases and advanced computing power) that all but ensures that legislators will be more extreme than the median member of their own party in their districts; and rules, like ‘Citizen United’, that facilitate the electoral influence of wealth. Then again, if past performance is no guarantee of future results, it’s still the single best predictor, and we’ve muddled along pretty well so far.

3:AM: Are there books, art or music that you have found inspirational or enlightening outside of your jurisprudential brooding?

MB: Sure, but the works that affected me most profoundly are all from my youth — Beethoven’s symphonies, Coltrane’s ‘A Love Supreme’, the writings of Chuang Tzu. All standard fare.

3:AM: And are there five books you could recommend for the engaged readers here at 3:AM that will give us further insights into your world?

MB: I’ll start with one book in or near each of my three principal fields — the philosophy of criminal law, constitutional theory, and the jurisprudence of sport — and then offer two more to round out my world, as you put it.

1. Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law. This recent book develops and defends an original theory aiming to justify criminal punishment. I think the affirmative account does not succeed, but it provides a good snapshot of the state of criminal law theory today. Furthermore, because Tadros is a committed anti-retributivist, the book is particularly valuable as a challenge to those, like me, with retributivist sympathies.

2. Scott J. Shapiro, Legality. I haven’t loved many recent books in constitutional theory. I also think, however, that real advances in constitutional interpretation will depend upon, or proceed hand in glove with, advances in general jurisprudence. Legality is the latest major contribution to general jurisprudence. As with Tadros’s contribution to the justification of punishment, I am skeptical of Shapiro’s affirmative account of law as social plans. But, if nothing else, the first few chapters summarizing the state of the literature are worth the price of admission.

3. Bernard Suits, The Grasshopper: Games, Life and Utopia. There is no book in the jurisprudence of sport. This, however, is the classic text in the philosophy of sport. Short and charming.

4. Keigo Higashino, The Devotion of Suspect X (English translation 2011). I like mysteries. I finished this one last night. Nothing spectacular, but highly enjoyable.

5. Richard Adams, Watership Down. Most of my fiction reading over the past half dozen years has been aloud, to my three wonderful children. We’ve read lots of great books over the years, but Watership Down probably remains our favorite. A beautiful and moving story, appropriate for children of all ages. I doubt that many of your readers have missed it, but any who have shouldn’t wait long to rectify that.


ABOUT THE INTERVIEWER
Richard Marshall is still biding his time.

First published in 3:AM Magazine: Wednesday, July 18th, 2012.