Cathedral Round-Up: Checking in with the Bright Minds at Yale Law

Yale Law’s Coat of Arms

Yale Law is the most prestigious lawschool in the entire US (Harvard Law is probably #2). YL’s professors, therefore, are some of the US’s top legal scholars; it’s students are likely to go on to be important lawyers, judges, and opinion-makers.

If you’re wondering about the coat of arms, it was designed in 1956 as a pun on the original three founders’ names: Seth Staples, (BA, Yale, 1797), Judge David Daggett aka Doget, (BA 1783), and Samuel Hitchcock, (BA, 1809), whose name isn’t really a pun but he’s Welsh and when Welsh people cross the Atlantic, their dragon transforms into a crocodile. (The Welsh dragon has also been transformed into a crocodile on the Jamaican coat of arms.)

(For the sake of Yale’s staple-bearing coat of arms, let us hope that none of the founders were immoral in any way, as Harvard‘s were.)

So what have Yale’s luminaries been up to?

Professor Yaffe has a new book on Criminal Responsibility, titled The Age of Culpability: Children and the Nature of Criminal Responsibility. The blurb from Amazon:

Gideon Yaffe presents a theory of criminal responsibility according to which child criminals deserve leniency not because of their psychological, behavioural, or neural immaturity but because they are denied the vote. He argues that full shares of criminal punishment are deserved only by those who have a full share of say over the law.

The YLS Today article goes into more depth:

He proposes that children are owed lesser punishments because they are denied the right to vote. This conclusion is reached through accounts of the nature of criminal culpability, desert for wrongdoing, strength of legal reasons, and what it is to have a say over the law. The heart of this discussion is the theory of criminal culpability.

To be criminally culpable, Yaffe argues, is for one’s criminal act to manifest a failure to grant sufficient weight to the legal reasons to refrain. The stronger the legal reasons, then, the greater the criminal culpability. Those who lack a say over the law, it is argued, have weaker legal reasons to refrain from crime than those who have a say, according to the book. They are therefore reduced in criminal culpability and deserve lesser punishment for their crimes. Children are owed leniency, then, because of the political meaning of age rather than because of its psychological meaning. This position has implications for criminal justice policy, with respect to, among other things, the interrogation of children suspected of crimes and the enfranchisement of adult felons. …

He holds an A.B. in philosophy from Harvard and a Ph.D. in philosophy from Stanford.

I don’t think you need a degree in philosophy or law to realize that this is absolutely insane.

Even in countries where no one can vote, we still expect the government to try to do a good job of rounding up criminals so their citizens can live in peace, free from the fear of random violence. The notion that “murder is bad” wasn’t established by popular vote in the first place. Call it instinct, human nature, Natural Law, or the 6th Commandment–whatever it is, we all want murderers to be punished.

The point of punishing crime is 1. To deter criminals from committing crime; 2. To get criminals off the street; 3. To provide a sense of justice to those who have been harmed. These needs do not change depending on whether or not the person who committed the crime can vote. Why, if I wanted to commit a crime, should I hop the border into Canada and commit it there, then claim the Canadian courts should be lenient since I am not allowed to vote in Canada? Does the victim of a disenfranchised felon deserve less justice than the victim of someone who still had the right to vote?

Since this makes no sense at all from any sort of public safety or discouraging crime perspective, permit me a cynical theory: the author would like to lower the voting age, let immigrants (legal or not) vote more easily, and end disenfranchisement for felons.

Professor Moyn has a new book on Human Rights: Not Enough: Human Rights in an Unequal World. According to the Amazon blurb:

The age of human rights has been kindest to the rich. Even as state violations of political rights garnered unprecedented attention due to human rights campaigns, a commitment to material equality disappeared. In its place, market fundamentalism has emerged as the dominant force in national and global economies. In this provocative book, Samuel Moyn analyzes how and why we chose to make human rights our highest ideals while simultaneously neglecting the demands of a broader social and economic justice. …

In the wake of two world wars and the collapse of empires, new states tried to take welfare beyond its original European and American homelands and went so far as to challenge inequality on a global scale. But their plans were foiled as a neoliberal faith in markets triumphed instead.

As Yale puts it:

In a tightly-focused tour of the history of distributive ideals, Moyn invites a new and more layered understanding of the nature of human rights in our global present. From their origins in the Jacobin welfare state

Which chopped people’s heads off.

to our current neoliberal moment, Moyn tracks the subtle shifts in how human rights movements understood what, exactly, their high principles entailed.

Like not chopping people’s heads off?

Earlier visionaries imagined those rights as a call for distributive justice—a society which guaranteed a sufficient minimum of the good things in life. And they generally strove, even more boldly, to create a rough equality of circumstances, so that the rich would not tower over the rest.

By chopping their heads off.

Over time, however, these egalitarian ideas gave way. When transnational human rights became famous a few decades ago, they generally focused on civil liberties — or, at most sufficient provision.

Maybe because executing the kulaks resulted in mass starvation, which seems kind of counter-productive in the sense of minimum sufficient provision for human life.

In our current age of human rights, Moyn comments, the pertinence of fairness beyond some bare minimum has largely been abandoned.

By the way:

From Human Progress

Huh. Why would anyone think that economic freedom and human well-being go hand-in-hand?

The Dramatic Decline in World Poverty, from CATO https://www.cato.org/blog/dramatic-decline-world-poverty

At the risk of getting Pinkerian, the age of “market fundamentalism” has involved massive improvements in human well-being, while every attempt to make society economically equal has caused mass starvation and horrible abuses against humans.

Moyn’s argument that we have abandoned “social justice” is absurd on its face; in the 1950s, the American south was still racially segregated; in the 1980s South Africa was still racially segregated. Today both are integrated and have had black presidents. In 1950, homosexuality was widely illegal; today gay marriage is legal in most Western nations. Even Saudi Arabia has decided to let women drive.

If we want to know why, absurdly, students believe that things have never been worse for racial minorities in America, maybe the answer is the rot starts from the top.

In related news, Yale Law School Clinics Secure Third Nationwide Injunction:

The first ruling dramatically stopped the unconstitutional Muslim ban in January 2017, when students from the Worker and Immigrant Rights Advocacy Clinic (WIRAC) mobilized overnight to ground planes and free travelers who were being unjustly detained. The students’ work, along with co-counsel, secured the first nationwide injunction against the ban, and became the template for an army of lawyers around the country who gathered at airports to provide relief as the chaotic aftermath of the executive order unfolded.

Next came a major ruling in California in November 2017 in which a federal Judge granted a permanent injunction that prohibited the Trump Administration from denying funding to sanctuary cities—a major victory for students in the San Francisco Affirmative Litigation Project (SFALP) …

And on February 13, 2018, WIRAC secured yet another nationwide injunction—this time halting the abrupt termination of the Deferred Action for Childhood Arrivals program (DACA). … The preliminary injunction affirms protections for hundreds of thousands of Dreamers just weeks before the program was set to expire.

And Rule of Law Clinic files Suit over Census Preparations:

The Rule of Law Clinic launched at Yale Law School in the Spring of 2017 and in less than one year has been involved in some of the biggest cases in the country, including working on the travel ban, the transgender military ban, and filing amicus briefs on behalf of the top national security officials in the country, among many other cases. The core goal of the clinic is to maintain U.S. rule of law and human rights commitments in four areas: national security, antidiscrimination, climate change, and democracy promotion.

 

Meanwhile, Amy Chua appears to be the only sane, honest person at Yale Law:

In her new book, Political Tribes: Group Instinct and the Fate of Nations (Penguin, 2018), Amy Chua diagnoses the rising tribalism in America and abroad and prescribes solutions for creating unity amidst group differences.

Chua, who is the John M. Duff, Jr. Professor of Law, begins Political Tribes with a simple observation: “Humans are tribal.” But tribalism, Chua explains, encompasses not only an innate desire for belonging but also a vehement and sometimes violent “instinct to exclude.” Some groups organize for noble purposes, others because of a common enemy. In Chua’s assessment, the United States, in both foreign and domestic policies, has failed to fully understand the importance of these powerful bonds of group identity.

Unlike the students using their one-in-a-million chance at a Yale Law degree to help members of a different tribe for short-term gain, Amy Chua at least understands politics. I might not enjoy Chua’s company if I met her, but I respect her honesty and clear-sightedness.

 

On a final note, Professor Tyler has a new book, also about children and law, Why Children Follow Rules: Legal Socialization and the Development of Legitimacy. (Apparently the publishers decided to stiff the cover artist.) From the Amazon blurb:

Why Children Follow Rules focuses upon legal socialization outlining what is known about the process across three related, but distinct, contexts: the family, the school, and the juvenile justice system. Throughout, Tom Tyler and Rick Trinkner emphasize the degree to which individuals develop their orientations toward law and legal authority upon values connected to responsibility and obligation as opposed to fear of punishment. They argue that authorities can act in ways that internalize legal values and promote supportive attitudes. In particular, consensual legal authority is linked to three issues: how authorities make decisions, how they treat people, and whether they recognize the boundaries of their authority. When individuals experience authority that is fair, respectful, and aware of the limits of power, they are more likely to consent and follow directives.

Despite clear evidence showing the benefits of consensual authority, strong pressures and popular support for the exercise of authority based on dominance and force persist in America’s families, schools, and within the juvenile justice system. As the currently low levels of public trust and confidence in the police, the courts, and the law undermine the effectiveness of our legal system, Tom Tyler and Rick Trinkner point to alternative way to foster the popular legitimacy of the law in an era of mistrust.

Speaking as a parent… I understand where Tyler is coming from. If I act in a way that doesn’t inspire my children to see me as a fair, god-like arbitrator of justice, then they are more likely to see me as an unjust tyrant who should be disobeyed and overthrown.

On the other hand, sometimes things are against the rules for reasons kids don’t understand. One of my kids, when he was little, thought turning the dishwasher off was the funniest thing and would laugh all the way through timeout. Easy solution: I didn’t turn it on when he was in the room and  he forgot. Tougher problem: one of the kids thought climbing on the stove to get to the microwave was a good idea. Time outs didn’t work. Explaining “the stove is hot sometimes” didn’t work. Only force solved this problem.

Some people will accept your authority. Some people can reason their way to “We should cooperate and respect the social contract so we can live in peace.” And some people DON’T CARE no matter what.

So I agree that police, courts, etc., should act justly and not abuse their powers, and I can pull up plenty of examples of cases where they did. But I am afraid this is not a complete framework for dealing with criminals and legal socialization.

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On Socialization

As a parent, I spend much of my day attempting to “socialize” my kids–“Don’t hit your brother! Stop jumping on the couch! For the umpteenth time, ‘yeah, right!’ is sarcasm.”

There are a lot of things that don’t come naturally to little kids. Many of them struggle to understand that these wiggly lines on paper can turn into words or that tiny, invisible things on their hands can make them sick.

“Yes, you have to brush your teeth and go to bed, no, I’m not explaining why again.”

And they definitely don’t understand why I won’t let them have ice cream for dinner.

“Don’t ride your bike down the hill and into the street like that! You could get hit by a car and DIE!”

Despite all of the effort I have devoted to transforming this wiggly bunch of feral children into respectable adults (someday, I hope,) I have never found myself concerned with the task of teaching them about gender. As a practical matter, whether the children behave like “girls” or “boys” makes little difference to the running of the household, because we have both–by contrast, whether the children put their dishes away after meals and do their homework without me having to threaten or cajole them makes a big difference.

Honestly, I can’t convince them not to pick their noses in public or that broccoli is tasty, but I’m supposed to somehow subtly convince them that they’ve got to play Minecraft because they’re boys (even while explicitly saying, “Hey, you’ve been playing that for two hours, go ride your bike,” or that they’re supposed to be walking doormats because they’re girls (even while saying, “Next time he pushes you, push him back!”)

And yet the boys still act like boys, the girls like girls–statistically speaking.

“Ah,” I hear some of you saying, “But you are just one parent! How do you know there aren’t legions of other parents who are out there doing everything they can to ensure that their sons succeed and daughters fail in life?”

This is, if you will excuse me, a very strange objection. What parent desires failure from their children?