Legal Theory Blog

Bybee & Ghosh on Public Reason & Same-Sex Marriage

Keith J. Bybee and Cyril Ghosh (Syracuse University College of Law and Maxwell School and Syracuse University) hav eposted Managing Radical Disputes: Public Reason, the American Dream, and the Case of Same-Sex Marriage on SSRN.  Here is the abstract:

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers possibilities for democratic deliberation that are different from those presented in the discourse on public reason. Ordinary people have strong opinions but their arguments are, more often than not, incompletely theorized - a fact that by no means indicates that such arguments are failures. We illustrate our argument by examining the ambiguous, fragmented use of American Dream talk in the debate over same-sex marriage.

As frequent readers of LTB know, public reason is one of my core interests.  For a quick introduction to public reason, see Legal Theory Lexicon 009: Public Reason.  Bybee & Ghosh argue that "the American Dream" could constitute an appropriate source of public reasons--but this seems doubtful to me.  First, it is not clear that "the American Dream" has well-formed content, as opposed understanding this notion as a rhetorical trope that takes on quite different meanings in different contexts.  Second, the notion of an "American Dream," insofar as it does have well-defined content seems to refer to a comprehensive conception of the good--a particular form of life that is distinctively American, but comprehensive conceptions of the good cannot be sources of public political values (and hence of public reasons), precisely because of the fact of reasonable pluralism.

Interesting paper.  Recommended.

Forgiveness, Secular Values, and Public Reason

Over at the Mirror of Justice, Thomas Berg has a post entitled "Can the Secular State Forgive People?" He quotes John McCullough, who asks:

My question is whether or not the state has a moral obligation to forgive those that commit unlawful acts. Should the state, at some point, forgive an individual who has repented (i.e. served time, probation, remained law abiding, is rehabilitated) by sealing the criminal record from public view, erasing any collateral consequences associated with the conviction, offering a certificate of rehabilitation, etc. Forgiveness, from what I understand, is a Judeo-Christian virtue. Is there a place for it in the secular state? Can the secular state forgive people?

There are really two questions here.  One concerns the possibility of "forgiveness" as an action by a state that is secular.  The other concerns the underlying grounding for forgiveness--is "forgiveness" a distinctively "Judeo Christian" virtue?

As to the first question, it seems obvious that a secular state (or individual) can forgive.  Forgiveness has two components.  One is a speech act--"I forgive you."  The other is dispositional.  True forgiveness requires that the speech act be accompanied by a disposition to act in forgiving ways--to cease blaming, to treat the offending individual as if the wrongful act had not been committed, and so forth.  It seems clear to me that forgiveness by a secular state is possible--with the caveat that states are not persons and that "dispositions" by states are actually complex bundles of institutional arrangements.

As to the second question, it seems clear that a variety of secular moral theories can support a "virtue" or practice of forgiveness.  Two examples:  First, utilitarianism naturally supports forgiveness--as the disposition to engage in blaming and punishing behavior creates disutility and hence can only be justified on utilitarian grounds if it also creates counterbalancing benefits.  A utilitarian state would be obligated to forgive in a variety of circumstances.  Second, secular (neoaristotelian) virtue ethics is well suited to support a virtue of forgiveness--as a disposition to forgive for the right reasons in the right circumstances is likely a component of human flourishing.

Moreover, I should think that the idea of a "fresh start" for persons who have "paid the price of wrongdoing" can also be seen as a public value--which can be shared by reasonable persons who affirm a variety of comprehensive moral and religious doctrines.  If this is correct, then forgiveness can be a well-grounded practice in a liberal state that is neither "secular" nor "religious."

Leiter on the Stem Cell Veto & Religious Reasons

Brian Leiter has a well-argued post on the stem-cell veto/religious reasons debate.  I may have some comments later.

No Reason at All?

At PrawfsBlawg, Doug Berman has a nift post entitled Can a decision be made "for no reason at all"?  The question is whether it is possible to "make a decision" for "no reason at all."  Here's a taste:

A draft article I read about prosecutorial discretion noted that courts are disinclined to scrutinize choices not to prosecute.  One court was quoted as declaring that prosecutors could decline to prosecute "for any reason or for no reason at all."   This phrase rang a bell; I recall other areas in which courts say some decision may be made "for any reason or for no reason at all."  This phrase also led me to ponder a (silly?) metaphysical question:  is it really possible to make a decision for no reason at all?

If I can add just a teeny time distinctions.  It is clearly possible to act for no reason at all.  We do this all the time.  Reasons come into play when there is deliberation, contemplation, or decision--but action does not require these.  There is, however, something quite odd about a decision for no reason at all: because it is difficult to imagine the process of decision without reasons of some kind coming into play.  Of course, "no reason at all" need not be interpreted literally.  For example, flipping a coin could be "no reason at all" in a certain sense.  Of course, when the coin comes up heads and the decision is taken on that basis, there is a reason: my reason for action was the result of a random process, but that kind of a reason is, in another sense, "no reason at all," because it makes the decision arbitrary.  The decision becomes like "an action without a reason," because it lacks the kind of reason that provides justification.

This points us in the right direction, I think.  "No reason at all" can be parsed as "No justification at all" and then the puzzle disappears.  More on this:

Of Reasons and Causes (And Beating a Dead Horse?) by Jeff Lipshaw.

On No Reasons and Mixed Reasons by Russell Covey.

More on Trial Court Opinions

Dave Hoffman has a post with the catchy title--Solum on the Need for Opinions.  Here's a taste:

It is not novel to point out that law school overemphasizes the role of judicial opinions as a percentage of what constitutes "law". The first-year common law method approach is at the root of this bias, and no doubt leads to the heuristic that law = reasoning = legitimacy. But many legal rules are simple commands (statutes; police instructions) unadorned by justifications. Indeed, asking a police officer for the reason behind an order is likely to engender suspicion, at the least. Even as a description of the normative legitimacy of judicial product, the focus on reasons seems to me to be an artifact of appellate thinking. Appeals courts are all about reasons, possibly because they lack the intimate acquaintance with the instruments of force (jailers, marshals) that accompany district court life.

My research focuses on district courts in part because as a clerk for a district judge, I realized that "we" were creating a great deal of law without giving any explanation, let alone full-fledged, blue-booked, opinions.

The Stem Cell Veto and Public Reason

Paul Horwitz has posted Stone on the Stem Cell Veto on PrawfsBlawg, replying to Geoff Stone's Religious Rights and Wrongs on the University of Chicago's Faculty Blog.  Stone wrote:

What these three acts have in common is a reckless disregard for the fundamental American aspiration to keep church and state separate. In vetoing the bill that would have funded stem-cell research, President Bush invoked what he termed a “conflict between science and ethics.” But what, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?

What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

Horwitz replies:

There are,  I think, several problems with Professor Stone's argument, and the first is one of misdescription.  Professor Stone suggests that the President erred by acting on his own "sectarian, religious belief[s]."  We do not know why he did what he did, however.  It is entirely possible that the President vetoed the bill not only or even primarily for religious reasons, but for political purposes -- shoring up the base and so forth.  Motivations for legislative action are often opaque; what of a legislator who (permissibly, according to Professor Stone) acts to protect religious objectors from having their embryos destroyed, not for any secular reasons, but strictly as a matter of her own religious faith?  So we should set motivation to one side and acknowledge that what Professor Stone is really asking is, under what circumstances is it ethical or legitimate for a public official to publicly offer religious reasons for some official action?

Horwitz is right--the President's motives are not clear.  Consider the following assertion by Stone:

[T]he belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children . . . is simply [the President's] own, sectarian religious belief.

This argument is ambiguous and woefully underargued.  If Stone means to assert that there are no reasonable nonreligious arguments for the belief as described, then he is either engaged in intentional rhetorical exxageration or he is woefully ignorant of contemporary moral theory.  If he means to assert that the President's own belief is in fact purely religious, it seems likely that the assertion is based on a hunch rather than sufficient evidence.  This said, I agree with Stone that motivations are relevant to political morality, and disagree with Horwitz who somehow thinks that the fact of motivational opacity is sufficient to establish that political morality does not restrict permissible motivations.  Of course, it does--consider, for example, the fairly obvious and clear cases of rascist, sexist, antisemetic, or anticatholic motivations.

But the really interesting part of the exchange is in the following passage from Horwitz:

Although it may often be unwise to offer religious reasons, and no other reasons, for a public action, that does not make it illegitimate.  Ours is a republican democracy, but not a Rawlsian republic in which public officials or citizens deliberating publicly are obliged to speak in terms of universally accessible reasons, if such a language is even available.  We should remember that public officials who give religious reasons are subject to a host of vetogates and barriers: they may lack the requisite votes for a particular action, they may be subject to a veto or a veto override, and they face significant electoral checks.  (For that reason, the argument that the President's action are especially wrong because they placed the President's convictions "above the convictions of a majority of the American people and a substantial majority of [Congress]" strikes me as an utter canard.  Ours is not a majoritarian democracy in that sense, and actions that dissatisfy a large enough majority are subject to reversal.) [red added for emphasis]

I am very curious about how this argument is supposed to go.  One interpretation is that there are several (or at least two) forms of republican government--"Rawlsian republics" and "republican democracy" and that ideals of public reason are relative to the form.  I can't quite imagine how this argument could possibly go--maybe Horwitz can explain it.

Another possibility is that Horwitz means to argue that checks and balances--"a host of vetogates"--somehow create conditions which change the content of the ideal of public reason that is appropriate.  Once again, however, I am puzzled.  How could this be the case?  Ideals of public reason can be justified in a variety of ways.  Rawls, for example, appeals to the liberal principle of legitimacy--the political value of offering justiications that can be accepted as reasonable given the fact of reasonable pluralism--the fact that citizens adhere to a variety of religious and moral doctrines.  Given the structure of Rawls's argument, the existence of vetogates does not seem relevant, at least not in any obvious way.

To return to context.  I should think it obvious that had President Bush relied explicitly on sectarian religious reasons as the sole basis for his veto (by sole basis, I mean that he did not also offer a public reason), that there would have been a very good argument that his action violated a duty of political morality and that it was illegitimate.  Of course, these matters are debated, but I have yet to see a truly convincing argument for a principle of laissez faire as the approrpriate ideal of public reason for a pluralist democratic society--and I must say, this is a literature I hav followed closely for well more than a decade.

Read Stone & Horwitz!

And for more on public reason, check out Public Reason in the Legal Theory Lexicon.

Update: More from Rick Garnett on Mirror of Justice.

And another update: Eugene Volokh weighs in.

What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

The Obligation to Give Reasons

Over at Concurring Opinions,  Dave Hoffman has a very nice post entitled Must District Judges Give Reasons?.  Here's a taste:

So here's the issue: in the ordinary case, to what extent are judges required to explain themselves?

I ask as a facet of the work I'm doing on when district judges write opinions (versus orders). The large-scale empirical project I've undertaken to answer that question is still ongoing, but my preliminary findings highlight the relative scarcity of opinions as a proportion of judicial workproduct (3% of judicial actions taken in my study, around 10% of non-ministerial/scheduling actions). Previous work on this subject has suggested that judges provide long-form explanations, complete with citations to "cases . . . statutes[s] . . . treatise[s] . . . article[s] . .. note[s] . . . [and] blawg[s]" when the issues are hard. When the issues are "easy" they write orders. When the issues are really easy, and time is crunched, they simply rule. "Just because I said it." But I think that this story is wrong.

My hypothesis, which I hope the data will prove out, is that judges explain themselves to maximize certain ends: (1) avoiding reversal; (2) gaining reputation with certain members of the bar; (3) intellectual satisfaction (i.e., more opinions in con law cases than social security cases); (4) free time (i.e., less opinions as workload increases); (5) reputation as a function of race and gender;etc. That is, the universe of opinions (what we call doctrine) is likely to be significantly different from the universe of what judges do in contested matters, in ways that we can predict. This isn't necessarily bad, although I am looking to see if certain classes of litigant - those represented by AMLaw 100 firms; corporate parties - are more likely to get gold-standard justice instead of "because I said it" justice.

A very fine post--well worth reading.  This is, of course, a complex question.  It's quite obvious that trial judges do not have an obligation to write a written opinion justifying each and every action they take: that obligation would mean that judge's could not engage in the management function during "live events" like trials and hearings.  Every hour of trial would require many hours of opinion writing!  On the other hand, we do expect trial judges to offer some sort of justification when they make a major decision--the clearest case being a decision that disposes of a claim or defense: one rule of thumb might be that any decision that creates an appeal as of right is a decision for which an explanation should be provided.

Why is there such an obligation?  The place to look for an answer to this question is in a theory of procedural justice.  Such theories generally divide into three families: (1) accuracy theories, (2) balancing theories, and (3) participation theories.  Each of these approaches offers insights relevant to the question at hand.  An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are "reasonable" and whether they are likely to be sustained in the event of appeal.  Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefitsto be obtained.  Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond--offering counter reasons, objecting to their legal basis, and so forth.  Moreover, the offering of reasons provides "legitimacy" for the decision.

For more, see the following:

Legal Theory Lexicon: Procedural Justice

Procedural Justice (on SSRN)