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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.)