Eric Miller and the Easy Winners Facebook
Papers
The last quarter of a century has produced a growing legitimacy crisis in the criminal justice sy... more The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs. In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the sort of preventative policing they advocate, singling out quality of life issues, can and should be separated from reactive investigative policing directed at apprehending criminals. The police, as currently constituted, are simply the wrong people to engage in preventative policing. My proposal is to radically restructure the manner in which we think about the legitimacy of various policin...
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Tulsa Law Review , 2018
Readers Related Papers Mentions View Impact
Res Philosophica , 2020
When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms ... more When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms in focusing on the physical and psychological harms that they suffer. These moral harms undermine the moral status of the victim, her ability to consistently pursue the values she endorses, and her character. Victimhood is a morally significant social role. Vic-timhood imposes normative standards that measure the moral or political status of victim. Conforming to these standards affects our assessment of the conduct of the victim and her moral standing. Considering the victims' role provides important insights into contemporary practices of policing in the United States. The physical and verbal acts of the police often force race-based degradation upon racially subordinated groups. There is often no morally good way out of racially discriminatory encounters when the choice is to degrade oneself or suffer violence or even death. Worse, how we respond to the threat of police violence morally undermines our relationships with those we would keep safe from police violence.
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This paper advocates an "institutional" approach to criminal procedure, one that explores the rel... more This paper advocates an "institutional" approach to criminal procedure, one that explores the relevance, to criminal procedure, of the municipal police as a public, executive institution, with different levels of organization and decision-making. The institutional approach contrasts with a traditional, "rights-based" approach to criminal procedure that emphasizes episodic encounters between the state and the public. Using the institutional approach, the paper then asks some questions about the nature of the police, and in particular their claim to police "on behalf of the public." The paper then considers and rejects some of the different justifications for the police claim to police on behalf of the public, and instead suggests the police should be content to police on behalf of the state.
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Many on-the-street interactions (which in Fourth Amendment jargon are often called "encounters") ... more Many on-the-street interactions (which in Fourth Amendment jargon are often called "encounters") are not subject to Fourth Amendment regulation. Encounters outside the Fourth Amendment vary from the non- or minimally intrusive, such as exchanges of pleasantries or mutually useful information, up to the very intrusive, such as asking for identification, following an individual for an extended period of time, or questioning them. Encounters are one of the most common ways in which the public interact with the police. But the police have no right to insist that the public participate in these encounters. The public need not accede to government officials' demands that they comply or cooperate with the police willy-nilly. Instead, the individual may challenge a police officer to provide reasons that demonstrate that law enforcement's request to participate in an encounter is reasonable and grounded in law. The public thus get to participate in policing by contesting its lawful limits. Where those limits are reached, the government official must recognize the right of the citizen to decline to participate. But even where the official has the legal authority to demand compliance with her instructions, she must still treat the individual with respect, as someone with the sort of political standing that entitles her to have reasons that justify government interference with her person or property. In practice, the police often do not recognize the public's power to challenge the police enforcement of the law on the street. Worse, even when the police may be inclined to recognize the power to challenge the police, that recognition is often distributed along race, gender, and class lines. There are two predictable consequences. Fearing retaliation, some people (the poor, women, and minorities) will simply not challenge the police, and may even cooperate with them though they would rather not. Others will challenge the police, but the police may not recognize their right to challenge, and may respond with physical or legal sanctions, including force. To the extent the police do not recognize the right to challenge, the police deny these individuals political and legal standing as full members of the community. In this way, the police often deny political and legal standing to distinctive groups within the community based on raced and gendered grounds.
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Law enforcement officials have tremendous discretion to determine the amount and style of policin... more Law enforcement officials have tremendous discretion to determine the amount and style of policing that occurs in their jurisdiction. These decisions — concerning whom to police and how much — are primarily matters of distributive justice, and are made at the level of the police department rather than on the street. These departmental decisions spread a variety of important social resources across communities, as well as imposing certain burdens on those communities as part of the prevention or investigation of crime. The police decide to apportion social resources through making policy, just as any other administrative agency concerned with resource-allocation might. Yet these policy decisions are mostly unregulated by the courts, and (unlike other some other agencies) closed to public input. Community members lack the ability to participate in — and especially, to challenge — police policy at the front-end during the equivalent of the drafting and comment process. The resulting policy is often based solely on law enforcement's own internal assessment of the appropriate goals and values to pursue, independent of the interests of the community they police. The police remain immune from democratic challenge during the policy-making stage, and isolated from the deliberative insights of the community at the sharp end of police policy-making. These deliberative deficits have the potential to undermine the legitimacy and accuracy of the departmental policy-making process, and render the police politically remote from the community they patrol. The distributive consequences of police policy-making, expressed in the amount and style of policing on the ground, include a range of social harms that can generate friction between the police and the public. These harms are often concentrated in communities subject to the most intensive and invasive policing. Recent public demonstrations in Ferguson, Missouri, and Baltimore, Maryland, among others, have emphasized the harms of policing and community alienation from politically remote police decision-making. Yet these distributive concerns are neither captured nor allayed by the judicial system's individualized focus on the reasonableness of police activity, and the remedies of exclusion or civil damages. In the light of these concerns, I employ the political theory of civic republicanism to advance one remedy: the possibility of public challenge to police policy-making. I propose some ways in which republican political structures can undermine the remoteness and fragmentation of the police and their policy-making process, to produce a more inclusive, egalitarian, and accurate set of police policies.
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Often, practical decision presents us with a zero-sum choice, so that whatever is gained by choos... more Often, practical decision presents us with a zero-sum choice, so that whatever is gained by choosing one option is lost by choosing the others. A parent must choose which child gets to ride first on the bicycle; a doctor must determine which among some range of courses of treatment to follow; an architect must pick which style of structure best suits a site; a judge must decide which side wins in a dispute before her. In each case, the decision-maker must select one from a menu of options and reject the others. Where the results are all-or-nothing in this way, an agent does not have the option of endorsing multiple outcomes all at once. Her choice separates the options into two categories, winners and losers. Sometimes reason is decisive, so that the reason for favouring the winner is also the reason for rejecting the loser. But sometimes reason is indecisive: all the reasons prevail (every option is a winner), or none do (every option is a loser). Rational indecision presents a problem for zero-sum decisions: the range of available reasons for decision is greater than the range of available options or outcomes. Reason alone does not select the winners and losers. In zero-sum decisions, if all the reasons are winning reasons, it is difficult to justify to the loser why they lost; when all the reasons are losing reasons, justifying losing is easy; justifying why one of the losers gets to win is hard. In either case, when called upon to justify her decision, the decision-maker cannot simply point to some decisive reason as requiring the outcome. In such cases, reason is indecisive, and under-determines the outcome of practical conflicts. I suggest that, on occasion, legal reasons prove equivocal or indecisive. Indecisive reasons are enough for full-blown justification, even in high-stakes enterprises such as legal decision-making. On this permissive model, demands for one right answer set the bar too high. When faced with a range of indecisive reasons for decision, a judge may be permitted to pick one among them as a reason for decision, and be fully justified whichever one she picks. Permissive justification turns out to be virtue for liberal professions (like the law) that value a diversity of professional perspectives and styles in working through the various options that the world throws at us. Yet the dominant understanding of the practice of adjudication is that judges are not allowed the normative space afforded to other liberal professionals. I provide a variety of examples to suggest that the justification of judicial decisions may be permissive and pluralistic.
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Reentry Courts are the latest solution to managing the transition of the state and federal inmate... more Reentry Courts are the latest solution to managing the transition of the state and federal inmates released annually back into the poor, inner-city communities from which they are drawn. Modeled on the various "problem solving" courts targeted at drug-addicts, the mentally ill, and others, these courts propose to mediate the social and legal obstacles facing ex-inmates and their communities. A central concern surrounding this role is the type of authority wielded by the judges that staff them. Reentry courts, like all problem-solving courts, depends upon the collateral institutional authority of the judge. By collateral institutional authority I mean the sort of authority that is not formalized by statute or common law (or even custom) or some other official legal source, but which emanates from the repeated interactions between the judge and the variety of court officers and other players in the criminal or civil court systems. Collateral authority thus emanates from the judge's role or status as a particularly important actor in the larger legal community. The judge is someone whom other legal agent must keep friendly, so that the wheels of government run smoothly. Judges use this collateral authority in the service of a therapeutic paradigm that unfairly places accountability for reentry issues on individual offenders while minimizing governmental responsibility for a range of institutional failures in the areas of health care, education, housing, and employment. Therapy, in other words, ignores the bureaucratic and political morass that structures the offender's situation, in favor of a personalized, exhortative model of individualized suasion. This therapeutic model tends to characterize the problem as a one-way street, in which the offender must adapt herself to society or the community. It turns out, however that local communities often see the problem as a more nuanced and dynamic conflict between community, offender, and society, in which the offender and community may at times share interests in adapting the larger society to their needs.
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Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments.... more Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments. What he does say reveals that Smith viewed morality as dynamic, almost economic exchange. Exposing the transactional nature of his theory of morality not only the operation of sympathy and moral judgment, but allows us to see a much closer link between the Theory of Moral Sentiments and the Wealth of Nations. Much remains to be said about this, as about his theory of justice. However, I do believe that to view Smith's moral theory from an "economic" perspective as a system of "sympathetic exchange" enables a more fruitful and cohesive account to be given of all aspects of his work, moral, economic and jurisprudential.
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In this paper I claim that, where the judge possesses strong discretion, she has both a legal pow... more In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal right to decide whichever way she wishes. Neither law nor morality provides a decisive ground for decision and all that is left is her taste or inclination. Perhaps because it looks like a naked exercise of power, the judge's predilections are not a terribly popular basis for judicial decision. Preference is often characterized as non-rational: as having no basis in reason because not based upon some unique reason requiring a particular decision. Reason-based decision, by contrast, is represented as demonstrating that some decisive reason overrides competing ones to settle the outcome of a legal dispute, independent of the judge's will. Absent such a reason, judicial decision consists an arbitrary exercise of the power authoritatively to resolve cases. I claim that the judge's personal preference or predilection operates as a legitimate basis for judicial decision in cases presenting strong discretion. Strong discretion exists wherever legal rules conflict, and there is no decisive reason determining the outcome. In such circumstances, each of the conflicting rules is undefeated and there is no incorrect thing to do. The judge has both a legal power and a legal right to decide whichever way she wishes. I contrast my strong discretion thesis with the claim that the judge has only "weak" discretion to resolve the case because extra-legal reasons bind the judge. In particular, I demonstrate that Ronald Dworkin and Joseph Raz, who are often thought to entertain diametrically opposed theories of law, both endorse weak discretion in adjudication and do so for similar, though mistaken, reasons. Whatever the merits of the weak discretion thesis generally, I argue that strong discretion and preference-based decision is an inevitable and useful feature of complex legal systems. It encourages judges to experiment with different outcomes in circumstances in which they have only a limited ability to foresee the consequences, and no way to determine which among the possible consequences is best.
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The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime.... more The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court's success is primarily achieved through suppressing the larger political debates surrounding drug policy through the therapeutic emphasis on a politics of personal responsibility. Bipartisan agreement has, however, come at the cost of precluding a discussion of the relation of drug crime to race and class in the urban setting, and ignoring the manner in which the state has exacerbated the problems of drug addiction for those caught in the criminal justice system. Perhaps courts are the wrong place for such policy discussions. Nonetheless, they remain essential to addressing the social causes of drug use in the inner cities. As an alternative, I have suggested reformulating the grand jury to take over some of the duties of the drug court judge. My goal is to generate empowered deliberative democracy at the local level, and mitigate some of the effects of the drug court's therapeutic use of discipline, while including more partners in the discussion of urban drug policy. Few people have recognized that the drug court's therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive vision of justice based on a version of positive liberty. In particular, the court's rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to "determine someone to be...this rather than that." Most critics who oppose the drug court's methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. I suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one. Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.
Readers Related Papers Mentions View Impact
The last quarter of a century has produced a growing legitimacy crisis in the criminal justice sy... more The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs. In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the sort of preventative policing they advocate, singling out quality of life issues, can and should be separated from reactive investigative policing directed at apprehending criminals. The police, as currently constituted, are simply the wrong people to engage in preventative policing. My proposal is to radically restructure the manner in which we think about the legitimacy of various policin...
Readers Related Papers Mentions View Impact
Tulsa Law Review , 2018
Readers Related Papers Mentions View Impact
Res Philosophica , 2020
When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms ... more When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms in focusing on the physical and psychological harms that they suffer. These moral harms undermine the moral status of the victim, her ability to consistently pursue the values she endorses, and her character. Victimhood is a morally significant social role. Vic-timhood imposes normative standards that measure the moral or political status of victim. Conforming to these standards affects our assessment of the conduct of the victim and her moral standing. Considering the victims' role provides important insights into contemporary practices of policing in the United States. The physical and verbal acts of the police often force race-based degradation upon racially subordinated groups. There is often no morally good way out of racially discriminatory encounters when the choice is to degrade oneself or suffer violence or even death. Worse, how we respond to the threat of police violence morally undermines our relationships with those we would keep safe from police violence.
Readers Related Papers Mentions View Impact
This paper advocates an "institutional" approach to criminal procedure, one that explores the rel... more This paper advocates an "institutional" approach to criminal procedure, one that explores the relevance, to criminal procedure, of the municipal police as a public, executive institution, with different levels of organization and decision-making. The institutional approach contrasts with a traditional, "rights-based" approach to criminal procedure that emphasizes episodic encounters between the state and the public. Using the institutional approach, the paper then asks some questions about the nature of the police, and in particular their claim to police "on behalf of the public." The paper then considers and rejects some of the different justifications for the police claim to police on behalf of the public, and instead suggests the police should be content to police on behalf of the state.
Readers Related Papers Mentions View Impact
Many on-the-street interactions (which in Fourth Amendment jargon are often called "encounters") ... more Many on-the-street interactions (which in Fourth Amendment jargon are often called "encounters") are not subject to Fourth Amendment regulation. Encounters outside the Fourth Amendment vary from the non- or minimally intrusive, such as exchanges of pleasantries or mutually useful information, up to the very intrusive, such as asking for identification, following an individual for an extended period of time, or questioning them. Encounters are one of the most common ways in which the public interact with the police. But the police have no right to insist that the public participate in these encounters. The public need not accede to government officials' demands that they comply or cooperate with the police willy-nilly. Instead, the individual may challenge a police officer to provide reasons that demonstrate that law enforcement's request to participate in an encounter is reasonable and grounded in law. The public thus get to participate in policing by contesting its lawful limits. Where those limits are reached, the government official must recognize the right of the citizen to decline to participate. But even where the official has the legal authority to demand compliance with her instructions, she must still treat the individual with respect, as someone with the sort of political standing that entitles her to have reasons that justify government interference with her person or property. In practice, the police often do not recognize the public's power to challenge the police enforcement of the law on the street. Worse, even when the police may be inclined to recognize the power to challenge the police, that recognition is often distributed along race, gender, and class lines. There are two predictable consequences. Fearing retaliation, some people (the poor, women, and minorities) will simply not challenge the police, and may even cooperate with them though they would rather not. Others will challenge the police, but the police may not recognize their right to challenge, and may respond with physical or legal sanctions, including force. To the extent the police do not recognize the right to challenge, the police deny these individuals political and legal standing as full members of the community. In this way, the police often deny political and legal standing to distinctive groups within the community based on raced and gendered grounds.
Readers Related Papers Mentions View Impact
Law enforcement officials have tremendous discretion to determine the amount and style of policin... more Law enforcement officials have tremendous discretion to determine the amount and style of policing that occurs in their jurisdiction. These decisions — concerning whom to police and how much — are primarily matters of distributive justice, and are made at the level of the police department rather than on the street. These departmental decisions spread a variety of important social resources across communities, as well as imposing certain burdens on those communities as part of the prevention or investigation of crime. The police decide to apportion social resources through making policy, just as any other administrative agency concerned with resource-allocation might. Yet these policy decisions are mostly unregulated by the courts, and (unlike other some other agencies) closed to public input. Community members lack the ability to participate in — and especially, to challenge — police policy at the front-end during the equivalent of the drafting and comment process. The resulting policy is often based solely on law enforcement's own internal assessment of the appropriate goals and values to pursue, independent of the interests of the community they police. The police remain immune from democratic challenge during the policy-making stage, and isolated from the deliberative insights of the community at the sharp end of police policy-making. These deliberative deficits have the potential to undermine the legitimacy and accuracy of the departmental policy-making process, and render the police politically remote from the community they patrol. The distributive consequences of police policy-making, expressed in the amount and style of policing on the ground, include a range of social harms that can generate friction between the police and the public. These harms are often concentrated in communities subject to the most intensive and invasive policing. Recent public demonstrations in Ferguson, Missouri, and Baltimore, Maryland, among others, have emphasized the harms of policing and community alienation from politically remote police decision-making. Yet these distributive concerns are neither captured nor allayed by the judicial system's individualized focus on the reasonableness of police activity, and the remedies of exclusion or civil damages. In the light of these concerns, I employ the political theory of civic republicanism to advance one remedy: the possibility of public challenge to police policy-making. I propose some ways in which republican political structures can undermine the remoteness and fragmentation of the police and their policy-making process, to produce a more inclusive, egalitarian, and accurate set of police policies.
Readers Related Papers Mentions View Impact
Often, practical decision presents us with a zero-sum choice, so that whatever is gained by choos... more Often, practical decision presents us with a zero-sum choice, so that whatever is gained by choosing one option is lost by choosing the others. A parent must choose which child gets to ride first on the bicycle; a doctor must determine which among some range of courses of treatment to follow; an architect must pick which style of structure best suits a site; a judge must decide which side wins in a dispute before her. In each case, the decision-maker must select one from a menu of options and reject the others. Where the results are all-or-nothing in this way, an agent does not have the option of endorsing multiple outcomes all at once. Her choice separates the options into two categories, winners and losers. Sometimes reason is decisive, so that the reason for favouring the winner is also the reason for rejecting the loser. But sometimes reason is indecisive: all the reasons prevail (every option is a winner), or none do (every option is a loser). Rational indecision presents a problem for zero-sum decisions: the range of available reasons for decision is greater than the range of available options or outcomes. Reason alone does not select the winners and losers. In zero-sum decisions, if all the reasons are winning reasons, it is difficult to justify to the loser why they lost; when all the reasons are losing reasons, justifying losing is easy; justifying why one of the losers gets to win is hard. In either case, when called upon to justify her decision, the decision-maker cannot simply point to some decisive reason as requiring the outcome. In such cases, reason is indecisive, and under-determines the outcome of practical conflicts. I suggest that, on occasion, legal reasons prove equivocal or indecisive. Indecisive reasons are enough for full-blown justification, even in high-stakes enterprises such as legal decision-making. On this permissive model, demands for one right answer set the bar too high. When faced with a range of indecisive reasons for decision, a judge may be permitted to pick one among them as a reason for decision, and be fully justified whichever one she picks. Permissive justification turns out to be virtue for liberal professions (like the law) that value a diversity of professional perspectives and styles in working through the various options that the world throws at us. Yet the dominant understanding of the practice of adjudication is that judges are not allowed the normative space afforded to other liberal professionals. I provide a variety of examples to suggest that the justification of judicial decisions may be permissive and pluralistic.
Readers Related Papers Mentions View Impact
Reentry Courts are the latest solution to managing the transition of the state and federal inmate... more Reentry Courts are the latest solution to managing the transition of the state and federal inmates released annually back into the poor, inner-city communities from which they are drawn. Modeled on the various "problem solving" courts targeted at drug-addicts, the mentally ill, and others, these courts propose to mediate the social and legal obstacles facing ex-inmates and their communities. A central concern surrounding this role is the type of authority wielded by the judges that staff them. Reentry courts, like all problem-solving courts, depends upon the collateral institutional authority of the judge. By collateral institutional authority I mean the sort of authority that is not formalized by statute or common law (or even custom) or some other official legal source, but which emanates from the repeated interactions between the judge and the variety of court officers and other players in the criminal or civil court systems. Collateral authority thus emanates from the judge's role or status as a particularly important actor in the larger legal community. The judge is someone whom other legal agent must keep friendly, so that the wheels of government run smoothly. Judges use this collateral authority in the service of a therapeutic paradigm that unfairly places accountability for reentry issues on individual offenders while minimizing governmental responsibility for a range of institutional failures in the areas of health care, education, housing, and employment. Therapy, in other words, ignores the bureaucratic and political morass that structures the offender's situation, in favor of a personalized, exhortative model of individualized suasion. This therapeutic model tends to characterize the problem as a one-way street, in which the offender must adapt herself to society or the community. It turns out, however that local communities often see the problem as a more nuanced and dynamic conflict between community, offender, and society, in which the offender and community may at times share interests in adapting the larger society to their needs.
Readers Related Papers Mentions View Impact
Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments.... more Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments. What he does say reveals that Smith viewed morality as dynamic, almost economic exchange. Exposing the transactional nature of his theory of morality not only the operation of sympathy and moral judgment, but allows us to see a much closer link between the Theory of Moral Sentiments and the Wealth of Nations. Much remains to be said about this, as about his theory of justice. However, I do believe that to view Smith's moral theory from an "economic" perspective as a system of "sympathetic exchange" enables a more fruitful and cohesive account to be given of all aspects of his work, moral, economic and jurisprudential.
Readers Related Papers Mentions View Impact
In this paper I claim that, where the judge possesses strong discretion, she has both a legal pow... more In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal right to decide whichever way she wishes. Neither law nor morality provides a decisive ground for decision and all that is left is her taste or inclination. Perhaps because it looks like a naked exercise of power, the judge's predilections are not a terribly popular basis for judicial decision. Preference is often characterized as non-rational: as having no basis in reason because not based upon some unique reason requiring a particular decision. Reason-based decision, by contrast, is represented as demonstrating that some decisive reason overrides competing ones to settle the outcome of a legal dispute, independent of the judge's will. Absent such a reason, judicial decision consists an arbitrary exercise of the power authoritatively to resolve cases. I claim that the judge's personal preference or predilection operates as a legitimate basis for judicial decision in cases presenting strong discretion. Strong discretion exists wherever legal rules conflict, and there is no decisive reason determining the outcome. In such circumstances, each of the conflicting rules is undefeated and there is no incorrect thing to do. The judge has both a legal power and a legal right to decide whichever way she wishes. I contrast my strong discretion thesis with the claim that the judge has only "weak" discretion to resolve the case because extra-legal reasons bind the judge. In particular, I demonstrate that Ronald Dworkin and Joseph Raz, who are often thought to entertain diametrically opposed theories of law, both endorse weak discretion in adjudication and do so for similar, though mistaken, reasons. Whatever the merits of the weak discretion thesis generally, I argue that strong discretion and preference-based decision is an inevitable and useful feature of complex legal systems. It encourages judges to experiment with different outcomes in circumstances in which they have only a limited ability to foresee the consequences, and no way to determine which among the possible consequences is best.
Readers Related Papers Mentions View Impact
The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime.... more The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court's success is primarily achieved through suppressing the larger political debates surrounding drug policy through the therapeutic emphasis on a politics of personal responsibility. Bipartisan agreement has, however, come at the cost of precluding a discussion of the relation of drug crime to race and class in the urban setting, and ignoring the manner in which the state has exacerbated the problems of drug addiction for those caught in the criminal justice system. Perhaps courts are the wrong place for such policy discussions. Nonetheless, they remain essential to addressing the social causes of drug use in the inner cities. As an alternative, I have suggested reformulating the grand jury to take over some of the duties of the drug court judge. My goal is to generate empowered deliberative democracy at the local level, and mitigate some of the effects of the drug court's therapeutic use of discipline, while including more partners in the discussion of urban drug policy. Few people have recognized that the drug court's therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive vision of justice based on a version of positive liberty. In particular, the court's rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to "determine someone to be...this rather than that." Most critics who oppose the drug court's methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. I suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one. Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.
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