DON'T SAY "NEXUS;" SAY "CONNECTION" : WHY I DON'T LIKE PRETENTIOUS LANGUAGE

AN ESSAY

During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."

In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.

I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.

But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.

Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.

All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.

Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.

It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.

Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.

Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.

What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.

But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.

Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.

Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.

Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.

In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.

And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.

CONTRACTS OR CONSCIENCE? AN ETHICAL DILEMMA

AN ESSAY

During my first year in law school, I struggled to learn the endless verbal formulas and doctrines that apparently made the law a flawless machine. I did not have time to reflect on the law's theoretical weaknesses or its cynical role in maintaining power structures in our society. No, I was more worried about learning all the recipe-like elements for particular torts, contract defenses and crimes. I spent my time memorizing lists and hoping I would remember them for the exam.

It was a stressful time for me. It probably did not need to be, but I made it so. It likely had something to do with all the other stressed-out, high-striving, perspiring people around me. Put yourself in a room full of panicked people and chances are you'll soon feel panicked, too.

Despite all the stress and anxiety, however, I remember certain moments with great clarity. Now that several years have passed since law school, I understand these moments in a new way. At the outset I must confess that--in hindsight--I was never really law school material. I might have studied it well; but it was difficult for me--and almost unnatural--to suspend my creative powers for three long years. True, I always retained my satirical mistrust for power. But in law school, I had to suppress my bitter urge to laugh for long enough to get through the rigid curriculum.

I'm glad I managed it then, because there's no way I could have managed it today. I've returned to Nietzsche. I have reverted to my nature. I am--to use a Shakespearean phrase--a "satirical rogue." Yes, an analytical satirical rogue to be sure; but a rogue nonetheless. I have trouble taking anything too seriously, especially so-called "authorities." I have a socially-dangerous ability to see through pretense and to sniff out unfairness. I am not very discreet either. I call spades spades. I don't even whisper. I listen to my conscience and I speak my mind. These are not admirable characteristics for those who wish to make partner at a law firm.

Having returned to my natural habitat over the last few years, I now analyze my law school memories in a way that affirms my identity. Here's a good example: I was sitting in our first-year contracts class. Our professor had stumped everyone. It was some hypothetical problem about some guy who made a promise to another then broke it. The question was whether the aggrieved person could sue the other for breach of contract. The professor asked what legal rule justified recovery in the case. Several uneasy moments passed. About 90 twentysomethings sat there staring at their laptops in an effort not to be noticed.

Finally, I raised my hand and said: "Well, he made a promise and broke it." The professor sneered at my response. I will never forget the look on her face. Then she said: "So what if you break your promise? What does that have to do with anything."

At the time, I did not think too much about the professor's response. I was too worried about memorizing legal recipes. But over time, I have come to see this moment as a perfect illustration for the proposition that law and ethics virtually exclude each other. And I have also come to see this moment as an expression of my own character. It should have alerted me that I was ethically uneasy with the law. After all, in my heart I care whether I tell the truth. If I make a promise, my heart hurts if I break it. Yet my heart does not concern the law. The law deals only in extrinsic indicia, not ethical worries. The law is about empirically observable factors, not the pangs of conscience. When I raised my hand in that class, I showed my nature: At that early time in my law school career, I thought the law and ethics overlapped. I could not have known at the time that they do not.

From an ethical perspective, a promise is a promise. You fulfill it because it is the "right thing to do." You do not hem, haw, qualify, vacillate or renege. You do what you say because it bothers your heart if you do not. If you have a conscience, it hurts to break a promise. Then again, if you are unethical, it does not bother you to break a promise. Your heart does not torture you for the decision. You just move on; you break your word as necessary to suit present circumstances. That may be realpolitik. It may even be legal. But it is not ethical. Ethics is internal; it is about the heart and intuitive feelings. By contrast, law is external; it has nothing to do with the heart. Detective Alonzo, Denzel Washington's unscrupulously corrupt (and successful) character in Training Day (2001), put the distinction best when he told his ethically troubled partner: "It ain't what you know. It's what you can prove."

In ethics, you know. In the law, you prove.

From a legal perspective, there are mere promises and there are contracts. Contrary to popular belief, contracts are not necessarily imposing-looking official documents that you sign. You can assent to a contract without ever seeing a paper. Rather, contracts are legally-enforceable promises, whether written or not. To make a promise legally enforceable, it must meet certain objective elements. A "promise in the wind" might trigger an ethical responsibility to honor it. But unless the promise meets technical legal elements, you cannot go to court to force the other guy to honor his word.

Contracts serve commerce. They support our economic system. They give assurance to business people that others will adhere to their promises. As such, the law only enforces promises that arise in "bargained-for exchange." The law calls this "consideration." In theory, this means that both sides haggle over a deal. Each side benefits and suffers detriment in equal measure. One party parts with money. That is detriment. The other party gains the money. That is benefit. But to get the money, one party must do something. That is detriment. The other party receives something desirable from the activity. That is benefit.

This is what makes a promise enforceable at law: Bargaining. Exchange. Haggling. Negotiation. Dickering. It is commercial. It is not gratuitous. In fact, gifts are not contracts. Quite the contrary: If only one party in a transaction receives benefit without a bargain, there is no contract. A kid can't sue his father if his father simply tells him he'll buy him an Xbox, then he breaks his word.

I mention all this to show that contracts are strictly technical. As such, the heart plays no part in their formation or performance. Put another way, ethics exerts no influence on contracts, even if it exerts influence on individuals who make promises. In fact, sometimes it makes more economic sense to break a contract than to keep performing it. For example, if a farmer promises to sell corn to a wholesaler at $1 a pound for a year, but then the price of corn suddenly rises to $10 a pound, it makes more sense to break the contract than keep performing it at a loss. After all, the law only provides a remedy for the contract price. In this case, the farmer could easily break the promise to sell for $1, pay the wholesaler $1 damages, then sell his corn at $10 a pound for a huge profit.

It might be unethical to break promises, but in circumstances like these, money talks and ethics walks. From the law's perspective, it makes more sense to break a promise than continue performing at a loss. The law actually encourages this unethical result. This demonstrates once again that contracts exist to support our free market economic system, not ethical imperatives.

In our free market economic system, people want to profit from their bargains. If they make a deal, they want their money. Contracts provide them with a weapon to either force compliance with the bargain or force the bad party to pay the expected profit. That is why contracts exist: To ensure that commercial men make their profits. They protect expectations. And contract law is completely indifferent to ethical considerations if they cut against those expectations.

Despite the law's requirements, sometimes ethical considerations wield very strong influence on individual people. And sometimes the imperative to tell the truth is not the only ethical conundrum that intervenes to interrupt a contract.

In the movie, Ray (2004), for example, Ray Charles makes a contract to play several concerts in racially segregated Georgia during the early 1960s. While he leads his band into a concert hall, protestors clamor that he is ethically wrong to support an unjust social custom. At first, Ray says that he has a contract with the promoters to do the show. But then he stops and thinks. Finally, he says: "No, no, they're right. Everybody get back on the bus. We're not doing any more shows at segregated venues." The promoter gets furious and says: "You have a contract to do these shows! I'll sue your black ass for this, Ray, and I'll win!"

Ray had profound ethical qualms about performing a contract that indirectly supported racial segregation. His conscience compelled him to refuse to perform it. But from a legal perspective, the promoter was right: He would win the case against Ray. Contract law cares nothing for ethics; if you make an enforceable contract and you refuse to perform it, it is no excuse to say: "I had an ethical problem with the subject matter." As admirable as that sentiment may be, it would not save you from paying full damages to the other party in a contract case. In this light, contract law once again supports commercial expectations, not ethical imperatives. It even supports commercial expectations when those commercial expectations perpetuate fundamental injustice. As long as there is a bargained-for exchange, the show must go on. Ethics is no excuse.

In hindsight, Ray could have avoided the problem altogether if he had raised his ethical objection prior to making the contract. Ethics can dissuade a person from entering into bargains that implicate ethical problems. But once made, ethics cannot excuse performance.

Still, this is hypertechnical rubbish. Conscience does not always materialize on cue. Sometimes our ethical sensibilities only awake once a contract begins. Perhaps it is not possible to foresee ethical difficulties in a contract until after we strike the deal. Yet the law does not see it that way. Once you make a deal, you are stuck with it, no matter what your conscience says about it. You might be able to shed your obligations by pleading some other, legal, defense. But neither ethics nor conscience is on the list of acceptable legal defenses.

And why should they be? Contracts are about commercial expectations. What does conscience have to do with those? The most successful commercial men easily escape all these issues by adopting a simple tactic: Just don't have a conscience.

Without a conscience, life is easy. You just follow the rules in the contract and go with the flow.

WHOM WOULD YOU RATHER KILL? A MAN OR A DOG?

OESTERHOUDT STRIKES

We learn from earliest childhood that "killing is bad." We have a natural moral sense that ending lives is generally not a good (and certainly not a nice) thing to do. Along the same lines, we learn that "life is valuable." We especially learn this when it comes to human lives. Animal lives are, well, not as valuable.

Some people genuinely take these lessons to heart. Abortion opponents, for instance, say that "all potential life is valuable." That means that not just full-grown adults do not deserve to die, but also tiny cell clusters that might one day develop into fetuses. Some even think that any potential life is valuable. But this reaches into absurdity. After all, every ejaculation and ovulation cycle represents "potential life." Surely it is neither sin nor murder to have a period or to ejaculate without an intention to procreate.

But all "life rhetoric" is vexingly biased. After all, who speaks up for non-human life? All cellular organisms are "alive." They all "die" when their necessary cellular functions cease. Is it somehow distressing, then, when a cow dies? How about a cockroach? Or a tree? These things are all "life." Yet no one marches to stop "tree murder," and no one wails when a raccoon dies in the wilderness. Put simply, when people say they "believe in life," they really mean that they believe in "human life." After all, people have an interest in staying alive. From a biological perspective, no living creature wants to die. A few people, of course, want to kill themselves. In the aggregate, however, most living humans want to stay alive.

Despite all this, even those who feverishly "defend human life" are not absolutists. Even people who fight tooth and nail to defend the unborn--or lament wasted sperm--have exceptions to their rule. After all, many people think that some human life is not worth preserving. When a man "deserves" to die, even the staunchest life defenders do not intervene to save him. I always found it amusing that most abortion defenders support capital punishment. I find it even more amusing that some particularly fiery abortion defenders murder doctors in order to prevent abortions. How's that for a problematic principle? All life is precious; but some people deserve to be killed. It's enough to boggle one's mind--or even laugh, if it weren't so serious.

Perhaps it is not so surprising after all. In fact, I venture that most people actually have little problem killing their fellow man. In fact, I think most people would have an easier time killing a man than a "lesser life form," like a dog or a deer. Despite all the things we learn about killing others, I think most people just need to be pushed far enough in order to kill another human being. And not just kill--gleefully kill.

And that's the difference: Men must be pushed to kill another person. Only human beings have the capacity to taunt, insult, degrade, abuse and denigrate their fellows. They can cause untold misery to one another, both physically and psychologically. The urge to kill builds in proportion to the misery a person endures at another's hands. Sometimes it does not even take that much to push a person over the edge. Think about road rage killings and drunken barroom squabbles. Men exchange words. Their emotions fly off the handle. Next thing you know, someone is dead. In other cases, a person suffers chronic abuse and finally snaps. Consider the beaten wife who just can't take it any more and slits her husband's throat while he sleeps.

In short, people kill each other for comparatively little. Maybe life is not that sacred after all.

But the same people who gladly kill their fellow man might have trouble killing a puppy dog. After all, people who kill over abuse or petty arguments do so because humans have a unique ability to arouse enmity in one another. In the moment before a man stabs a rival who insulted his girlfriend, he thinks: "I'm gonna kill this fucking asshole." In other words, the human capacity for intent leads men to kill each other. It even makes killing easy in the right circumstances.

Not so with a dog. Why would anyone want to kill an innocent little puppy? Everyone knows that a puppy can't cause any harm. It can't lie, deceive, insult, connive, abuse, beat, torture or tyrannize. It can do none of the things that arouse homicidal rage in human beings. If it came between an innocent puppy dog and a hated tormentor who slaps and insults you all day for weeks on end, I don't think I'm stretching to suggest that most people would much rather kill the man than the dog.

In a word, it is facetious to claim that "all human life is sacred." Our own behavior proves us wrong when we do. The truth is that human beings drive us crazy from time to time. They drive us so crazy, in fact, that we become all too willing to kill them if the circumstances impel us. Only humans have the capacity to arouse such furious, homicidal rages. Puppies have no such capacity. That is why-- if given the choice--I think most people would rather kill a detested, tyrannical person than an innocent dog.

TERROR TRIALS IN NEW YORK : DO WE REALLY CARE ABOUT FAIRNESS?

AN ESSAY

On Friday, the U.S. Department of Justice announced that it would try several key al-Qaeda suspects for their alleged role in the 9/11 attacks. That was big news; under President Bush's direction, the Justice Department deferred exclusively to the military for handling so-called "enemy combatants" captured in the "War on Terror." Unlike President Bush, Obama decided to heed the United States Constitution and prosecute these suspects before U.S. civilian courts. After all, these detainees are not "soldiers captured in War" under the Geneva Convention, because al-Qaeda did not sign the treaty. Yet American authorities hold them on American territory for breaking American laws. In such circumstances, there is only one lawful alternative: Try them in domestic courts.

This was a significant step. But the Justice Department announced something even more significant: It would try the suspects in New York.

From a legal perspective, it makes little difference where the sovereign chooses to try a criminal defendant for violating the law. Here, the United States seeks to convict terrorists for plotting to attack the World Trade Center and ultimately destroy it. As long as the sovereign holds the defendant in his realm, he can prosecute him under the ancient principle of "personal jurisdiction over the body." If you are present in a country and you commit a crime there, you can be prosecuted for it in that country--it is very simple.

It also makes sense to try 9/11 conspirators in New York from a practical perspective. In criminal trials, venue is proper when it is easy for witnesses to get to the courthouse. Certain districts have a greater interest in trying a case than others, especially when all the "sources of proof" lie in those districts. Venue is also proper when the crime has a direct connection to the locale. Even the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amd. VI. This makes common sense as well as constitutional sense. It is practical--and somehow just--to try cases in the places where the crimes happened. Every jurisdiction has a public interest in punishing wrongdoing in its own borders.

Yet there are times in which it does not make sense to try cases in the most logical places. New York seems the most fitting place to try those accused of destroying the World Trade Center. All the witnesses are there, and obviously New York has a burning local interest in punishing those who caused such havoc in its borders.

But these practical advantages spawn larger concerns. After all, the Sixth Amendment guarantees criminal defendants "a speedy and public trial by an impartial jury." U.S. Const. Amd. VI. It is also guarantees that "no State shall deny any person of life, liberty, or property, without due process of law." Id. at Amd. IV, s. 1 The Supreme Court has held repeatedly that a State deprives "a person" of "due process of law" if it does not afford him a "fair trial." For obvious reasons, 9/11 conspirators may not get a "fair trial" by an "impartial jury" in New York. That is why it might not make sense to hold the trial there.

How can any New York jury be impartial about 9/11? Daily newspapers routinely run stories about "dangerous Muslims." Bitter memory about 9/11 runs deep. Many people knew individuals who died in the attacks, or they know their families. 9/11 is a focal point for national anger; and it burns hottest in New York.

These are the people who will sit in the "New York jury pool" when the conspirators step into court in New York. Can they be impartial? Can they render a judgment free from passion, excitement, resentment, anger or emotion? Trials are fair when they are based on evidence admitted under law in open court. They are not fair when they are based on emotional reaction, prejudice or bias.

And how can New Yorkers insulate themselves from pervasive press coverage about the trial? As soon as the Justice Department announced that it would try the suspects in New York, the New York Post published a blaring headline: "NOW DIE! 9/11 Fiends Coming Back to New York for Trial--Next Stop Hell."

That headline reminded me about the famous Supreme Court case about trial publicity and Due Process: Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard held that every criminal defendant has a right to a "fair trial free from massive, pervasive and prejudicial news coverage" that is "reasonably likely" to lead the jury to find against him based on inadmissible evidence and emotion. The case also concluded that the trial judge has a duty to control press access to the trial, and to monitor every juryman's out-of-court attention to news comment about the case. After all, according to the Court, the State provides trials in order to "adjudicate controversies, both civil and criminal, in the calmness and solemnity of the courtroom according to legal procedures." Id. at 350, 351, quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965). Those "legal procedures" include the requirement that the jury base its conclusions on evidence admitted in court, not on outside sources or emotion. Id. Prejudicial and pervasive press coverage undermines these goals when it poisons an entire population against a criminal defendant. And it undermines another key goal in our justice system: Fairness.

Many people discount fairness in legal questions. Law professors used to scoff at me when I suggested that certain results in cases were "unfair" or that legal forms resulted in "unfairness." After all, the law attempts to introduce scientific certainty into the maelstrom of human existence. It attempts to govern the ungovernable. In many ways, humans are ungovernable because nothing can control their emotions. Emotions are not reasonable; they are intuitive. Sometimes they flow from perceptible evidence. At times they do not. Legal formalism fails when it refuses to accept just how important emotion and intuition are to the human mind. Like emotion, it is difficult to quantify fairness. We know it when we feel it. We know when a process is unfair, even if we cannot articulate why. Fairness is important to the law, even if it draws ridicule from law professors. And sometimes even the law recognizes how important it is. In more hopeful moments, even the Supreme Court sees that no legal rule can survive unless it comports with intuitive fairness: "[O]ur system of law has endeavored to prevent even the probability of unfairness." Sheppard v. Maxwell, 384 U.S. 333, 353 (1966), quoting In re Murchison, 349 U.S. 133, 136 (1955).

I doubt whether the 9/11 suspects will receive a "fair trial" anywhere in the United States. But I am certain they will not receive a fair trial in New York. The fact that the New York Post blared a headline telling the suspects (who are not convicted) to "Go Die" and mentioned "hell" indicates how New Yorkers feel about the case. True, not everyone reads the Post. But it voices a very popular sentiment, and it is almost impossible to avoid seeing such headlines each day. And these are the people who will receive jury duty summonses. Can we expect them to be "unbiased, calm and serene" as they consider "only evidence produced in court" in this case? I think not.

All this begs a question: Why even bother holding a trial at all for these suspects? In theory, the State and the individual should be equally matched at trial. The State attempts to divine the "truth" about the individual's "criminal act," while the individual--whom our system presumes innocent--is free to cast doubt on all the State's claims. As long as he produces a reasonable doubt about his guilt, he must go free.

But this is all theory. Few Americans presume everyday criminal suspects innocent, let alone the 9/11 conspirators. These men have been demonized in the press for over eight years. They have been held in orange jumpsuits at Guantanamo Bay. We have all seen the pictures. Can any American truly presume them innocent? Can any American reflect on them without bias or prejudice? Yet we now expect Americans--in New York, no less--to put aside all their emotions about 9/11, as well as all the negative publicity they have heard about it for the past eight years. We now expect that they will calmly and serenely reflect solely on evidence produced in court. We expect them to drop all their emotions, preconceptions and prejudices. We expect them to magically forget all the horrible things they have been told in the press since 2001. And we even expect them to respond to a judge's command to "exclude any information I deem inadmissible," including confessions induced by torture.

If our jury actually acts in the way the law expects, the 9/11 suspects will get the "fair trial" to which the Constitution entitles them. But people do not simply shut off their bias or emotion. Nor can they erase a fact from their memory simply because a judge says: "Disregard that fact, please." In short, national hysteria surrounding 9/11 for the last decade has so inflamed the American public that there is no way the 9/11 conspirators will get anything approaching a fair trial.

In this case, emotion, prejudice and a rabid press have already made the decision.

As guilty as the conspirators may be, we should step back and ask ourselves how "fair" our process truly is. And while we're at it, perhaps we should wonder whether we even want "fairness" for "monsters."

But if we sacrifice fairness in one case, what happens in the next one?

VIVE LA FRANCE!

OESTERHOUDT STRIKES

I am in a rush this morning. But I have enough time to say that I do not like the television show "NYC Prep." It is about six ultra-rich white Upper East Side prep school students who talk incessantly about clothes, advantages and money. They cannot reveal their names or their parents' names for fear that they might be abducted. It is as if they know that their wealth and lifestyles immediately inspire resentment in viewers.

Wealth divides Americans as much as it divides citizens in any other civilization. While we can talk about theoretical inequality all day, it is something else to see the way really privileged people live. It evokes true populist nausea. Most people struggle from paycheck to paycheck their whole lives. They never seem to get anywhere. Their parents had nothing to give and they didn't know anyone who could get them a job that actually could lead someplace. Yet the children on NYC Prep worry about whether they will receive a Mercedes or BMW on their 16th Birthday. How could a wage-earner or debtor not feel outrage when they hear about such blatant excesses?

As I watched these children move through luxurious apartments laughing, texting and planning European excursions, I thought to myself: "This is the kind of stuff that started the French Revolution." And my thoughts led me further: "Wouldn't it be satisfying to guillotine these little assholes along with their absurdly wealthy parents?" That would finally put some fear in them, wouldn't it?

Class inequality starts trouble when enough people realize how bad it really is. Class inequality touches both an emotional and a philosophical nerve. In America, wealthy people do a good job concealing their lives and lifestyles from public scrutiny. But when they come to light, outrage is swift and almost bloodthirsty. Human beings have an innate intuition about fairness. When they see some people with everything, while they struggle for nothing, they cannot help feeling that unfairness is afoot. When these emotions reach a critical mass, revolutions happen. Anger about unfairness topples governments. That's what happened in France in 1789. That was a bad year to be rich.

Revolutions excite me. I love studying them because I love reading about times during which old orders break down and the law fails. In pre-Revolutionary France, for instance, the law supported the wealthy. By law, they maintained their status, property and unequal privileges. But that did not give them right. In fact, the people smashed the law and killed those who violated right. The same thing happened in Russia in 1917. Revolutions obliterate unfair legal systems and the unequal social structures they support. Yet in both France and Russia, there was a spark that ignited smoldering resentments. Both France and Russia experienced international turmoil prior to their revolutions that weakened the law's grip. Thus, a historical pattern emerges: Revolutions happen when two things are present: (1) Massive popular resentment caused by social inequality and wealth disparity; and (2) A destabilizing event at home or abroad that compromises the law's power to restrain dissent.

In America, we have not fulfilled either prerequisite for revolution. While there is enormous social inequality and wealth disparity in America, there is a substantial counterbalance. Namely, there are millions of middle-class people who are sufficiently content with their economic lot that they are not prepared to risk comfort for something better. Additionally, America has never faced the kind of truly devastating "destabilizing event" that weakens faith in government altogether. America has not faced crippling wars in which millions of civilians die. Nor has its currency ever gone worthless, as it did in Germany in the 1920s. Put simply, America is quite stable. And that stability enables the law to control resentment engendered by social inequality. Unfairness, in other words, can survive in peaceful times when enough people really don't give a damn. This is the case in America today.

But resentment lives. You can feel it the minute you tune into NYC Prep and wonder how it is possible that some people have it so easy. And you'll have to forgive yourself for your intuitive desire to dethrone these modern-day nobles. Revolution or not, we can still dream about how gratifying it would be to humble these petulant bon vivants. After all, it's in our nature to recoil from intuitive unfairness.

GOOD, BAD OR JUST SICK : WHY WE PUNISH CHOICE

AN ESSAY

Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.