Download To: Paul Robinson

Mark Kelman, “Author’s Reply” to Comments on “Interpretive Construction in the
Substantive Criminal Law”
Some comments on recurring themes, both grand and small, in the comments:
1. Professor Litton makes some “big” arguments, to which I will return, but he also
makes some “smaller” ones (echoed in Rudolph) about the compatibility of
Martin and Decina. Alas, they seem to me to be based on a first semester law
student’s confusion: each case (and more pointedly Martin) is about actus reus
(voluntary conduct), not mens rea (whether the voluntary conduct was culpable.)
This is not merely a formalist point for four reasons: (a) First, and most trivially,
the court makes no reference to whether Martin was reckless as to a public
appearance in doing whatever he did to make him arrest-worthy; Litton’s simply
imagining an opinion that was never written. (b) Second, the distinction matters in
terms of institutional competence (we are all lawyers still, right?): It is hard to
imagine an appeals court would think it reversible error if a fact finder had found
the risk of involuntary appearance was one that Martin was aware of and was
unduly substantial and unjustifiable. (c) Third, and closely related, as a matter of
fact, the question of whether Martin is reckless (which I clearly indicated in the
piece was indeed an additional question) is not by any means an easy one. Of
course, it may be no great shakes to risk violating the law against public
drunkenness, but the conduct that risks doing that (e.g. domestic violence) is of so
little value that almost all risks of further harms (e.g. appearing in public drunk)
might be unduly high (the justified part of substantial and unjustified) and second,
the probability of the public appearance (conditional on what the arrest-worthy
behavior was) might be extraordinarily high. (d) Fourth, at the deep level, it seems
to me that Litton should care (far more than I do) whether Martin is accurately
described as a non-actor (in his words, something to whom something happened)
rather than a non-culpable actor (someone who had the capacity to exercise
practical reason and chose to exercise it in a fashion that we ultimately decide is
not culpable.)
Similarly, Mikhail makes some extraordinarily important “big” points but I think
his “little” point on Martin is unavailing: intervening actors who are duty-bound
to act as they do (as police may be duty bound to remove an abuser from the
home) are generally not causal interveners. If Mikhail thinks that conventional
outcome is indefensible, he needs to explain more about why he believes that.
2. Are the “constructs” I identify conscious or unconscious and how would we
know? Raymond identifies a set of self-defense cases in which it seems likely that
those making the decisions almost surely understood that they were picking a
“time frame” that was not universally used, and, more generally, I think lawyers
do sometimes consciously pick out one in a pair of dueling constructs in the same
way that they select one of a pair of dueling equity maxims. And I agree with
Ristroph that even if they constructed a case without being aware that it might
have been constructed differently, they will be able to rationalize either the
construction or the outcome it led to if the alternative frame either spontaneously
comes to consciousness or is raised by someone else, but doing so will have the
impact she suggests – an increase in the sense of punishers’ agency.
But what clues might one have (and it won’t be more than clues) that the judges in
Martin were actually clueless (both about the time frame problem and the separate
requirement of boisterousness in the statute). Well, there is nothing in the opinion
that suggests that they see this as a hard case, no reference to other possible
constructions. But, of course, it is possible that the judges recognized that a more
nuanced opinion would be a murky mess, not that they didn’t see the case was a
murky one.
3. I agree with Litton (here’s a “big” point) that the article does not address the
literature that tries to set out the minimal necessary conditions that should trigger
blame (either as a mandatory response or a limiting condition on the distribution
of punishment.) My response would have to be a lot “bigger” too, I suppose, but
the reason I’ve never given the response is because I find the literature advancing
these claims so empty at both critical stages that I never know exactly what it is I
should address. First, the accounts of the purported mental functioning/capacities
of the actors (the pictures of what practical reasoners do and don’t do, for
instance) seem devoid of tractable cognitive psychological content. Second, the
post-Kantian accounts of our duties to blame seem self-referential and vacuous. It
is reasonably easy to see how (in theory, though the empirics are always woefully
inadequate) an incapacitationist would assess whether acts taken responsive to
certain atypical situational pressures ought to be punished (it is all about how
likely the situation is to recur or what the response says about responses under
other circumstances that will occur), and it is easy to see why the general practice
of incapacitation makes sense (even if it is not one’s preferred rationale for
punishment.). The consequentialist and non-consequentialist explanations for why
we should maintain the general practice of punishing non-consequentially are
infinitely harder to pin down.
4. Far and away the most interesting issues in my mind are raised by Mikhail’s
response. Is it best to think of the “constructs” not as dictated solely by the
“events” in the external world but by the interaction of human cognitive capacities
and that world? (An object is invisible in this sense given the interaction between
our perception capacities and its size.) I am finishing a book on the issue now, but
suffice it to say, I am skeptical of the sort of massively modularized views of the
mind that would make it most plausible that the “constructs” emerged (directly?
by analogy? and how does a modularized brain assign novel situations to the apt
module?) out of evolutionary pressure in the way many features of perception
might have. (This is suggested, in part, by the non-universality of the construct
responses, in the same way, I think that Professor Mikhail’s accounts of universal
moral grammar are often belied by the extraordinary divergence of responses by
his subjects to the more nuanced Trolley problems.) I am also skeptical of
accounts of (at least this form of cognition) that rely heavily on encapsulation
(inability to account for additional cues) that the view would require (this is
suggested by our ready capacity to re-think issues initially constructed in a
particular way.) But I think Mikhail is right to suggest that our accounts of what is
“rational” often need to be more sensitive to what meets our proximal needs (and
“limited” evolved cognitive capacities may meet proximal needs) rather than what
is “formally” rational (either in an economist’s sense or a logician’s sense.)