CABALWATCH!: I spent the weekend at the Federalist Society conference in New Haven. I have a good friend in the upper reaches of Yale’s FedSoc, but I’m not just saying the conference rocked because I know him. It was great. Theme: “Law and Truth.” I missed the first night, which was apparently a philosophical ramble through pre-modern, postmodern, and just plain old modern theories of truth.
Highlights of the conference: 1) It helped me organize my thoughts on a topic I’ve explored on this blog: What if academic and judicial interpretations of the law actually cared what ordinary citizens think? What if we tried to interpret the law so that the average citizen could, you know, figure out what’s legal and what’s illegal? What if the judges worried about the average guy trying to obey the law? The easiest conclusion is that Sandra Day O’Connor would have to stop asking that every nuance of every law be referred to her personally; but there’s more, I think. If anyone knows of a book, article, etc. on this subject, please let me know, since I’m hoping to write about it for a Real Publication soon.
2) Guido Calabresi gave a great presentation on an alternative to the exclusionary rule. The excl. rule is the one that says that if evidence was gathered in an illegal fashion, that evidence is not admissible. Calabresi argued that the rule creates an incentive for judges to interpret the Fourth and Fifth Amendments very narrowly, since judges don’t want to let criminals free on technicalities. So instead of protecting our civil rights, the excl. rule ends up indirectly constraining them. There have been several proposals for alternatives to the rule–punishing cops who gather evidence illegally; making illegal evidence grounds for a tort case; a couple others I forget. Calabresi took them one by one and pointed out flaws in their incentive structures. His suggestion came in two parts: First, keep the conviction, but reduce the sentence if the evidence was gathered illegally. Second, punish the cops. That way, criminals have a real incentive to tattle on cops who break the rules, and cops have a real incentive to follow the rules, but murderers, rapists, etc. still end up behind bars. Calabresi acknowledged some problems (how to handle capital cases, for example), but said he thought they could be solved. But basically, his solution is the best one I’ve heard of so far, in terms of preserving the Bill of Rights and protecting us from crooks and killers. There’s so much more to be said about criminal justice reform, but this is one small good idea that deserves more investigation.
3) Best line of the weekend: “And when I was in law school, I took a class from Robert Bork, who was denying the gods of the city, bringing in new gods, and corrupting the youth…”