Legal Commentary

As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)

I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I  floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.

 I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some  aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment.  Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note:  I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.