David C. Gray

The Right to Quantitative Privacy

David C. Gray et al. — Tue, 05 Mar 2013 12:42:53 PST

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the subject of hot debate on and off the courts. Among the most compelling challenges are questions about quantitative privacy’s constitutional pedigree, how it can be implemented in practice, and its doctrinal consequences. This Article takes up these challenges.

The conversation after Jones has been dominated by proposals that seek to assess and protect quantitative privacy by focusing on the informational “mosaics” assembled by law enforcement officers in the course of their investigations. We think that this case-by-case approach both misunderstands the Fourth Amendment issues at stake and begets serious practical challenges. Drawing on lessons from information privacy law, we propose as an alternative that legislatures and courts acting in the shadow of Jones focus on the technologies. Under this technology-centered approach, any technology that is capable of facilitating broad programs of continuous and indiscriminate surveillance would be subject to Fourth Amendment regulation. This does not mean that government would be barred from using these technologies. Rather, it would require that the terms of their deployment and use reflect a reasonable balance between privacy concerns and law enforcement’s interests in preventing, detecting, and prosecuting crime. This Article offers concrete proposals for how legislatures and courts might strike this balance while providing the clear guidance and predictability that critics of the mosaic theory rightly demand.

A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence

David C. Gray — Tue, 29 May 2012 12:34:19 PDT

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. That conceptual deficit has produced an opaque body of doctrine that is often incoherent and always speculative and unpredictable. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

The Supreme Court's Contemporary Silver Platter Doctrine

David C. Gray et al. — Tue, 29 May 2012 12:34:14 PDT

In a line of cases beginning with United States v. Calandra, the Court has created a series of exceptions to the Fourth Amendment exclusionary rule that permit illegally seized evidence to be admitted in litigation forums collateral to criminal trials. This “collateral use” exception allows the government to profit from Fourth Amendment violations in grand jury investigations, civil tax suits, habeas proceedings, immigration removal procedures, and parole revocation hearings. In this essay we argue that these collateral use exceptions raise serious conceptual and practical concerns. The core of our critique is that the collateral use exception reconstitutes a version of the “silver platter doctrine.” In the days before the Fourth Amendment and the exclusionary rule were incorporated to the states, the silver platter doctrine allowed federal courts to admit evidence seized by state law enforcement agents during “unreasonable” searches and seizures. The silver platter doctrine was rejected by the Court in 1960 out of concern that it was compromising states’ efforts to guarantee constitutional protections because it created incentives for state law enforcement officers to violate the Fourth Amendment. By recreating the silver platter doctrine, the Court’s collateral use cases have recreated some of those incentives. Our research indicates that these incentives have been successful in altering police practices in ways that threaten the Fourth Amendment rights of all citizens.

Beyond Experience: Getting Retributive Justice Right

Dan Markel et al. — Thu, 03 Feb 2011 06:06:55 PST

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment.

In subsequent articles, we challenged BBM’s arguments (principally from the perspective of retributive justice) -- see below for SSRN links. The fundamental issue between BBM and us is whether "punishment" should be defined, measured, and justified according to the subjective negative experiences of those who are punished, an approach we refer to as "subjectivism," or whether the more compelling approach is to define and justify punishment, more or less, in objective terms such that the amount need not vary based on experiences of offenders alone.

In their responsive essay, "Retribution and the Experience of Punishment," BBM responded to our challenges. This essay of ours now assesses the impact of their responses, again from the perspective of retributive justice. We remain not only principally unpersuaded as to the conceptual and normative responses, but we use this essay to explain further the wrong turns associated with BBM's decision to endorse subjectivist concerns as the principal measure and justification for the infliction of retributive punishment.

Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Punishment, http://papers.ssrn.com/abstract=1587886

Gray, Punishment as Suffering, http://ssrn.com/abstract=1573600

BBM, Retribution and the Experience of Punishment, http://ssrn.com/abstract=1692921

Retributivism for Progressives: A Response to Professor Flanders

David C. Gray et al. — Thu, 03 Feb 2011 05:40:16 PST

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure some current American criminal justice practices using a roughly hewn retributivist yardstick. We conclude that American criminal justice may well be too "harsh" as measured by retributivist standards. If this is right, then Whitman and others may be wrong to condemn retributivism as a theory of criminal punishment. To the contrary, the resources needed to justify many progressive reforms may lie in embracing retributivism rather than rejecting it. While further work will be necessary to reach any final conclusions, we suggest that retributivism might be particularly useful in addressing overcriminalization, long prison sentences, and brutal prison conditions, each of which a retributivist might well regard as "disproportionate or otherwise unjustified" and therefore "harsh."

A Modest Appeal for Decent Respect

Jessica Olive et al. — Fri, 17 Sep 2010 09:49:52 PDT

Punishment as Suffering

David C. Gray — Fri, 09 Apr 2010 05:39:43 PDT

In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected to the same punishment; 2) different offenders may have different happiness baselines, which may lead to disparities in absolute, subjective, and comparative happiness-to-suffering ratios among offenders subject to the same punishment; and 3) offenders’ self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity.

These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective proportionality for proportionality in subjective suffering. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these defenders of punishment-as-suffering (“PAS”) are setting the stage now, arguing that no matter our theory of criminal law and punishment — be we retributivists or utilitarians — we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering.

This view of the criminal law may strike some readers as troubling. It should. The problem with PAS can be traced to a crucial equivocation between “punishment,” which is a fundamentally normative concept, and “suffering,” which is one of punishment’s contingent effects, and a derivative failure to distinguish between the justification of punishment and the mechanics of penal practice. Once the elided distinction between punishment and suffering is reconstituted, it is clear that PAS has no bite on traditional theories of punishment, which define punishment objectively. To the contrary, most punishment theorists ought to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. That conclusion is bolstered by the uncomfortable outcomes PAS scholars deploy against objective theories of punishment as purported ad absurdum. While admittedly absurd, those results derive not from premises indigenous to traditional theories but from PAS’s distinctive claim that punishment is suffering.

Extraordinary Justice

David C. Gray — Fri, 09 Apr 2010 05:38:39 PDT

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort awards that violate basic commitments to individual fairness and those who appeal to collective responsibility, atonement, or reconciliation as special transitional justice theories. These debates have not reached a persuasive resolution because both camps fail to recognize and take full normative account of the extraordinary conditions in abusive regimes. What distinguishes pre-transitional abuses from ordinary crime is the role played by an abusive paradigm. An abusive paradigm is a combination of social norms, law, and institutional practice that utilizes a bi-polar logic to justify targeted violence. Abusive paradigms gain authority after the collapse of dynamic stability – the overlapping network of associations and oppositions that restricts violence and violent impulses in stable regimes. Once dominant, abusive paradigms rationalize and enforce a pathological status inequality that excludes those in an oppressed group from cross-secting identities, allowing abusers to regard them as appropriate targets for exclusion and abuse.

The primary task in transition is to seize the liminal moment between an abusive past and a future committed to human rights, democracy, and the rule of law in order to achieve some level of parity between victims and abusers, in part by creating or reconstituting the network of overlapping identities reflective of a dynamically stable society. Reparations and other transitional justice tools, liberated from the constraints of ordinary justice models, have a role to play in this extraordinary endeavor as sites for what Rosa Ehrenreich Brooks has called “effective norm change.” For example, symbolic reparations can provide official recognition of victims. Material reparations can provide former victims with meaningful access to spheres of public and private life once denied to them as a consequence of their status. Treating reparations as part of the extraordinary endeavor of social transformation also provides ready responses to common objections, including those prominent in debates about historical reparations.

Constitutional Faith and Dynamic Stability: Thoughts on Religion, Constitutions, and Transitions to Democracy

David C. Gray — Tue, 16 Feb 2010 11:38:54 PST

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

A Prayer for Constitutional Comparativism in Eighth Amendment Cases

David C. Gray — Thu, 13 Aug 2009 08:20:41 PDT

What's So Special About Transitional Justice? Prolegomenon for an Excuse-Centered Approach to Transitional Justice

David C. Gray — Wed, 05 Aug 2009 05:56:39 PDT

Why Justice Scalia Should be a Constitutional Comparativist ... Sometimes

David C. Gray — Wed, 05 Aug 2009 05:56:27 PDT

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a full-blooded theory of constitutional comparativism, it sketches the outlines and sets the stage for further conversation.

Devilry, Complicity, and Greed: Transitional Justice and Odious Debt

David C. Gray — Tue, 04 Aug 2009 05:13:56 PDT

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the details of particular debts and placing the weight of the doctrine on an assessment of the regime itself. The consequence of this move is to allow successor regimes to void all debts incurred by predecessors who indulged in autocratic rule, corruption, and violations of basic human rights.

This shift is not without controversy. The contest stems, in part, from the fact that the structural and behavioral characteristics of regimes that might be regarded as odious are diverse, as are the relationships between these regimes and their subjects. Even a cursory survey of these differences presents a more complicated taxonomy of odious debts than is suggested either by Sack's version of the doctrine or by voiding wholesale all debts incurred by regimes that do bad things. This article exposes this complexity and, in broad Linnean strokes, proposes a rough classification of odious regimes and their debts. It then connects odious debt debates to broader issues relevant to transitional justice. In particular, the article focuses on odious regimes characterized by systematic and institutional human rights abuses and argues that fundamental goals of transitional justice warrant against successors' voiding unilaterally debts incurred by their predecessors.

Failing to disclaim duties to repay does necessarily leave transitional regimes on the hook for debts incurred by their predecessors. Businesses, banks, and nations that invest in abusive regimes must assume the burdens of their own responsibility for past abuses. The article contends that debts incurred by abusive regimes mark duties of repair owed by those who invested in the past regime. So, while successors to merely corrupt regimes may not have a duty to repay under traditional odious debt rules, in the case of a truly abusive regime, the sword swings the other way, imposing a duty on lenders to compensate those victimized by their past engagements.

The article recognizes that this approach to the debts of odious regimes presents potential problems and concerns for investors and the citizens of marginal states, but concludes that through a robust practice of corporate social responsibility corporations and financial institutions can safely invest in marginal regimes while also helping to advance our international human rights culture.

An Excuse-Centered Approach to Transitional Justice

David C. Gray — Tue, 04 Aug 2009 05:13:55 PDT

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice.

This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define abusive regimes and transitional justice in contrast to stable states and ordinary justice. It argues that the public face of law in abusive regimes - composed of law, institutional practice, and social norms - is such that reasonable people living under its direction can conclude that abuses are at least not against the law. Given this, prosecuting in transition those who acted consistently with the pre-transitional public face of law would violate commitments to the legality principle.

The article argues for an approach to transitional justice organized around the description and provision of an affirmative defense based on legality and defends the proposed excuse against objections from different legal and philosophical perspectives. It concludes that, with the exception of top leaders, appeals to natural law, morality, international law, customary law, deterrence, reform, and incapacitation do not provide warrant for prosecuting most pre-transitional actors. The article further suggests how this excuse-centered approach can provide necessary support and justification for other elements of the hybrid approach, including truth commissions.

A No-Excuse Approach to Transitional Justice: Reparations as Tools of Extraordinary Justice

David C. Gray — Tue, 04 Aug 2009 05:13:53 PDT

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these failures are objections that reflect commitments to “ethical individualism.”

By way of response, some advocates attempt to put reparations back on course by appealing to theories of collective responsibility. Where put strongly, these theories suffer from basic conceptual deficits. Weaker versions, such as theories based on moral taint, and related efforts that seek atonement or reconciliation, turn on moral sentiments, such as regret, and therefore cannot give rise to objective and externally enforceable duties of repair. More creative solutions, such as approaches pursuing “restorative justice,” have some intuitive appeal but want for theoretical clarity and therefore fail to provide persuasive practical guidance.

This Article proposes a new approach. Rather than conceiving of reparations as solely retrospective, which implicates knotty issues of responsibility, or solely prospective, which raises problems of enforceability and political practicality, this Article argues that reparations are Janus-faced. In keeping with a larger project arguing that transitional justice is not just a special case of ordinary justice, this Article suggests treating transitions as liminal moments and contends that reparations ought to reflect the extraordinary conditions implied by this temporal status “betwixt and between” an abusive past and a future committed to democracy, human rights, and the rule of law.

Rule-Skepticism, "Strategery," and the Limits of International Law

David Gray — Tue, 04 Aug 2009 05:13:50 PDT

This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas.

In the essay I suggest that the critical core of the authors' argument is a form of rule skepticism of a kind with that explored most prominently by Ludwig Wittgenstein and Saul Kripke. Rather than rehearse that literature, the essay uses this insight as a tool to set limits on the critical agenda of the book. In particular, I argue that the claim that "no course of [state] action could be determined by a rule, because every course of [state] action can be made out to accord with the rule" leaves the authors' critical thesis to turn on contested and contestable historical claims. In the essay I do not argue that this is reason to reject this work; rather, I indicate several directions for empirical inquiry and conclude that this book sets the stage for fruitful future debates.

Separate from these descriptive concerns, I also suggest that the authors' skepticism may be muted entirely by a more careful exploration of what constitutes rule-following in the field of international law. Specifically, I suggest that, viewed as an operating system, organized around procedures that provide forums for normative debate, set the stage for public reason-giving, and establish terms for the use of carrots and sticks, international law may not aspire to be a determining force for state action, particularly in the motivational mode implied in the authors' discussion. Rather, taking this proceduralist view, it may be enough for international law advocates that the law exists, that states do engage in law talk, and that states include in their behavioral calculus the potential consequences of their actions in light of international law as an operating system. Again, I conclude that these potential objections provide no ground to condemn this interesting work but highlight its indisputable value as a refreshing addition to the international law canon.

I end with the following advice:

"While, as the authors note, this short book may raise more questions than it answers, it lays the foundation for an approach to research and practice that is sure to become a force in many fields. Readers are advised not to be left behind."