The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

Edmundson, William A. "The Antinomy of Coherence and Determinacy," 82 Iowa Law Review 1-20 (October, 1996).

Edmundson contends that the legal ideals of coherence, that a body of law should make sense as a whole, and determinacy, that what the law demands of us should be unambiguously fixed, pull in opposing directions. In making this claim, Edmundson relies on insights from the Legal Realists about how we secure determinism in the law, and, on the other side, the work of recent coherence theorists in epistemology, philosophy of science, and philosophy of law (especially Kenneth Kress). Edmundson’s basic insight revolves around two principles. First, the Legal Realists claim that in order to make the law predictable, we must confine its scope narrowly, balkanize the jurisdiction of particular statutes and judicial precedents within distinct and manageable territories. Edmundson dubs this the partition principle. But there is also an anti-partition principle common to coherentist approaches, which seek interconnections between different areas of the body of ideas for which coherence is being sought; balkanization diminishes coherence.

The bulk of Edmundson’s paper is devoted to a wide variety of concrete examples in the history of the law to illustrate the application of, and the potential for direct conflict between, these two goals within the legal arena. He also relies on an example from the history of science to illustrate the intrinsic appeal of coherentism in a different field of study. Nonetheless, Edmundson concludes that, if his basic thesis is correct, appeals to coherentism in legal theory may not help alleviate worries about underdeterminacy in modern legal positivism of the sort developed by H.L.A. Hart. Ronald Dworkin’s work in Law’s Empire, for example, can be thought of as an appeal to coherentist ideals as a way of constraining the wide judicial latitude which Hart seems to permit. Edmundson’s analysis suggests that this faith in coherentist ideals may be misplaced, because they do not in fact foster greater determinism in the law.

Lott, John R. & Mustard, David B. "Crime, Deterrence, and the Right to Carry Concealed Handguns" 26 Journal of Legal Studies 1-68 (January, 1997).

Using cross-sectional time-series data from 1977 to 1992 and relying on enormous multiple regression analyses, this article tests the effect of "shall issue" concealed handgun provisions on crime. Both county-level and state-level data indicate that allowing citizens to carry concealed weapons tended to deter violent crimes such as murder, rape, robbery and aggravated assaults, though property crime rates increased after the "shall issue" laws were implemented as reflected in county-level data. It appears that criminals respond to the laws by substituting less risky crimes where the probability of contact between the criminal and the victim is minimal.

The effects of the laws appear equal across all types of murders as well as the victims’ sex, race, and relationship with offenders. Economically, the authors argue that concealed handguns are thus far the most cost-effective method of reducing crimes; they estimate that the annual monetary gain in 1992 from allowing concealed handguns was over $5.74 billion. Though the results are less clear and consistent, further exploration of conditions in three states—Pennsylvania, Oregon and Arizona—partially supported previous findings regarding national-level data. Moreover, it shows that higher arrest and conviction rates consistently reduce the crime rate, but no such systematic effect appears to follow from longer prison sentences. Finally, the study shows that possible increased accidental deaths due to the concealed handgun permits are actually almost negligible.

Pepper, Stephen L. "Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering," 104 Yale Law Journal 1545-1610 (1995).

The primary professional responsibility of lawyers is to provide clients with access to the law, both in its mechanisms for dispute resolution (e.g., civil and criminal courts) and in its capacity for construction of legal edifices (e.g., the creation or dissolution of contractual agreements, deeds and trusts, corporate entities). An important part of providing access is the business of providing clients with information about the legal consequences of possible decisions or actions. Since some of the contemplated decisions or actions may be legally and/or morally dubious, this raises questions about the proper limits of legal assistance which lawyers may provide in this capacity. Pepper considers a range of concrete cases, from client queries about the consequences of reneging on contracts not yet made, to those about the scope or existence of extradition treaties governing suspected murderers who have fled the country. He argues that, for cases of the first kind, Holmes’ positivist model of the "bad man’s view of the law" may well be the appropriate one to use in construing "what counts as law", when trying to determine what is presumptively permissable for the lawyer to communicate to the client. (The theory here is that lawyers are both entitled and obligated to inform clients what the law is, and contract violations are not unlawful: they are simply accompanied by a sanction, and it would be remiss of a lawyer not to provide information about the nature and limits of such sanctions.) But this model seems to be quite inappropriate for cases of the second kind, when imparting such information might reasonably be construed as facilitation of illegal conduct, and the attorney’s role as an officer of the court might reasonably be invoked.

Pepper’s primary focus is on the middle ground between these two extremes. What model or models of professional responsibility are appropriate when the prospective contract violator’s attorney is contemplating passing along the additional information about the costs to the plaintiff of enforcing breach of contract violations, and the difficulty which plaintiffs often have in establishing breach of contract? Or how should the attorney treat queries about the legal consequences of consensual euthanasia rather than "routine" homicides? What about queries concerning modest EPA violations or the likelihood of getting away with dubious interpretations of the federal tax code? Pepper contends that current law governing lawyer’s ethics is inadequate to the task of addressing middle ground cases, and offers some practical suggestions and distinctions of his own to help fill the gap.

Rice, Paul R. "Attorney-Client Privilege: The Eroding Concept of Confidentiality Should be Abolished," 47 Duke Law Journal 853-898 (1998).

Rice distinguishes between the exclusionary effect of the attorney-client confidentiality privilege, and the secrecy requirement which has historically come to be associated with that privilege. He contends that only the first of these is of real value in securing more effective legal representation, while the second is both costly and unnecessary in our legal system. The way to insure complete candor between a client and his attorney is to guarantee that such communications may not be submitted as evidence at trial, or in any other potentially adverse legal proceeding. ‘Confidentiality’ in the sense of secrecy, on the other hand, adds nothing to the client’s sense of security beyond what is already afforded by the attorney’s professional code of ethics. Even if the secrecy requirement constitutes an additional hedge against the client’s risk of public embarrassment, Rice argues that it is actually counterproductive with respect to legal protection of the attorney/client privilege: to the extent that secrecy of the communications between attorney and client is construed as a necessary condition for maintenance of the privilege, Rice cites a number of examples where compromised secrecy has been invoked to undermine the privilege.

Rice argues that, if we do away with the secrecy requirement, this will not only eliminate a good deal of client anxiety about sharing information with their attorneys, but also eliminate a lot of costly evidentiary courtroom disputes about what is or is not privileged. In the course of his article, Rice also reviews the history of the secrecy requirement, finds no coherent rationale for it in the past, arguing that it was an irrational nineteenth-century appendage to the previously existing attorney-client privilege. Rice also addresses the concern that elimination of the secrecy requirement might encourage corporate clients to seek privilege protection for all sorts of internally generated information and decisions by routinely routing memoranda through corporate counsel. (Rice does not regard this as a serious problem now, and does not believe the status quo would be altered if we dropped the secrecy requirement.)

Sanders, Alexander M., Jr. "Newgarth Revisited: Mrs. Robinson’s Case," 49 South Carolina Law Review 407-461(1998).

Building on Lon Fuller’s famous post-war Harvard Law Review article about "The Case of the Speluncean Explorers," Sanders invents another case for the Supreme Court of Newgarth (Fuller’s fictitious realm situated in the far distant future). On this occasion, the issue is whether this appellate court should uphold damages awarded to a comatose plaintiff (Mrs. Robinson) against a supersonic train that slammed into her car, killing her husband and reducing her to a vegetative state broken only once after a ten-year interval, when she became semi-conscious just long enough to recite the facts of the case before witnesses. Just as Fuller did before, Sanders concocts a series of judicial opinions issued on the case by each of his five justices of the Supreme Court of Newgarth, focusing on questions about the admissibility of hearsay evidence under such circumstances, questions of strict liability, judicial activism versus deference to legislative will, economic analysis of the law, and the natural law tradition versus legal positivism. Each of the five judges represents one (or more) jurisprudential traditions: Legal Formalism, Liberal Positivism, Law and Economics, Legal Realism and Critical Legal Studies, and Natural Law (which gets the last word, incidentally).

Basically, this article is an update for the nineties of Fuller’s "survey by example" of contending legal philosophies. Sanders is a former Chief Justice of the South Carolina Court of Appeals, the second highest SC appellate court (which, by his own description, made him an "intermediate monkey" swinging on the vine of judicial latitude). Like the stereotypical Southern judge, Sanders is a born raconteur with a love of the English language. He sometimes overdoes the literary and legal references in the text (and he definitely goes overboard in the footnotes), but the article as a whole would make an excellent and engaging introduction to jurisprudence for a undergraduate audience--either at the outset of a course in philosophy of law, or as a section of a more general introductory course in political and/or moral philosophy (or political science). There are natural breaks whereby the article could be assigned in chunks over several class days. (Excising about three-quarters of the footnotes is advisable, however. Some of them are both interesting and entertaining addenda enlarging on literary and legal references, but many of them are either redundant or the usual tedium of superfluous references which tend to fill out the pages of law review articles.)

Scales, Ann. "Disappearing Medusa: The Fate of Feminist Legal Theory?" 20 Harvard Women’s Law Journal 34-46 (1997).

The author links the Medusa/Athene opposition in Greek mythology with developments in feminist legal theory and argues for the importance of radical feminism to the integrity of feminist legal theories. In the classic tale, Athene represents virginity, motherhood and time, which respectively symbolize women’s self-determination, the source of the world, man and all other wonders, and the wisdom of ages, including knowledge of mortality. Medusa represents another female potential, namely, being capable of fury and vengeance. Yet, Scales argues, Medusa is a part of Athene. Only later in patriarchal society, under male supremacy and female subordination, did Athene and Medusa separate and become enemies. Medusa is depicted now as unvarnished, undomesticated, incomplete, deviant and dangerous—in short, as the counternarrative to the patriarchal and male-dominant society. Scales suggests that the Medusa/Athene opposition may mislead students to ridicule radical feminism or to find radical feminism shrill. Acceptance of the opposition enables both liberalism and postmodernism to weaken radical feminism. Empirically, reports on female military cadets’ experiences, JonBenet Ramsey’s murder, and the Girl X case in Chicago all emphasized individual idiosyncracies, neglecting commonalities among those events and therefore hiding the systematic failure of the patriarchal and male-dominated society. Scales concludes that Medusa, representing the possibility of a transformatively different consciousness and consistent with radical feminism, could help to uncover the superficial reading of those events. As a radical feminist trope, Medusa should be embraced in her critical disposition rather than abandoned or allowed to disappear.

Sunstein, Cass R., Kahneman, Daniel and Schkade, David. "Assessing Punitive Damages (with Notes on Cognition and Valuation in Law)," 107 Yale Law Journal 2071-2153 (1998).

Sunstein, Kahneman, and Schkade have written what will surely be a definitive study of punitive damages. They have two goals: "to investigate the arbitrariness and unpredictability in punitive damage awards," and to "show what might be missing, impractical, or wrong in standard economic approaches to punitive damage awards." They begin by wondering why there have been such large punitive damage awards for some harms and such small ones for related harms. They claim that jurors base their awards more on a sense of shared outrage that they feel (a retributive basis), and less on what will deter future actors. They hypothesize that jury awards are erratic because jurors are asked to express their outrage in monetary terms, and yet a monetary scale is unbounded (zero to infinity) with no clear way to translate moral outrage into dollar equivalents. The authors design an empirical study which shows that jurors are likely to have considerable agreement about how comparatively outrageous they think a defendant’s conduct was, regardless of the gender, race, ethnicity, or age of the jurors. Yet, jurors disagree wildly about how to translate their level of outrage into dollar equivalents.

Sunstein et al. then infer that other erratic jury awards in compensatory damages concerning pain and suffering or sexual harassment can also be understood based on their findings that jurors seemingly have little ability to translate their largely moral judgments into economic or monetary terms. This leads the authors to move to the philosophical level and to wonder about economic approaches to law generally. If value judgments such as those reflected in a juror’s moral outrage are relatively consistent over a population group, and if their monetary assessments are quite inconsistent, this tends to call into question the use of monetary measures (at least those that are not subject to actual market factors) to capture valuation in law. Such a finding is extremely significant.

In the final third of the essay, Sunstein et al. propose a number of alternative methods of valuation for assessing punitive damages, ranging from the elimination of jury judgments in favor of "expert" judgments to various forms of guidance for jurors. What makes their piece quite fascinating is the mixture of psychological evidence, moral theorizing, and economic modelling. Anyone interested in the relationship between law and ethics will find this essay worthwhile.

Wexler, Jay D. "Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools," 49 Stanford Law Review 439-470 (1997).

Wexler evaluates the constitutionality of the latest strategy which Christian fundamentalists have devised for combating what they perceive to be a government-sponsored erosion of their faith in high school biology classes. After statutory efforts to prohibit the teaching of evolution were finally blocked by the Supreme Court in Epperson v Arkansas (1968), fundamentalists switched to the strategy of advocating equal time for creation science. But this too was unacceptable to the Supreme Court, primarily on the ground that such statutes failed the "secular legislative purpose" prong of the Lemon test for passing Establishment Clause scrutiny (Edwards v. Aguillard [1987]). So now fundamentalists have turned to yet a third strategy: equal time in the classroom for an intelligent design theory instead of a theory of special creation. The idea is that design arguments similar to William Paley’s do not presuppose any particular religious tradition, and therefore should pass constitutional muster. Wexler discusses these arguments in the context of a particular textbook that is now being promoted by the advocates of this new strategy. In light of the content of this text (Percival Davis and D.H. Kenyon, Of Pandas and People: The Central Question of Biological Origins), Wexler concludes that the ‘equal time for intelligent design’ gambit proves to be just as unconstitutional as the previous generation of equal time arguments. Some of his arguments are perhaps unpersuasive, but others are pretty compelling. The article also contains a nice historical synopsis of the debate over teaching evolution. That summary alone would be a useful supplement to any class with a unit devoted to the evolution/creationism pedagogy debate.