Georgetown Law Faculty Blog

Moral Grammar in Der Spiegel

The July 30 cover story of Der Spiegel, Europe's leading news weekly, features some of the research on the cognitive science of morality that I and others are currently doing.  There is no English translation, but the article is attached here for those who read German and might be interested in it. The article is also scheduled to appear in Hebrew in the Israeli daily, Haaretz.

For readers who are new to this topic, this essay by Rebecca Saxe is highly recommended, as are this paper by Liane Young and her colleagues, this paper by Fiery Cushman and his colleagues, this paper by Marc Hauser et al.,  and this paper by Joshua Greene and Jonathan Haidt.  Further background can be found in this Wall St. Journal article and this New York Times article.  In addition, Matthias Mahlmann, who is also featured in the Der Spiegel story and will soon take up the chair in legal philosophy at the University of Zurich, recently wrote this essay in the German Law Journal.   Finally, I recently published two pieces on this topic, one of which describes the moral grammar model of moral cognition and the other of which examines some of its implications for legal theory. 

Another new article by Amanda Leiter

Here's the abstract and SSRN link for another new article

The Perils of a Half-Built Bridge: Risk Perception, Shifting Majorities, and the Nuclear Power Debate,
    Ecology Law Quarterly, forthcoming
    Georgetown Public Law Research Paper No. 1001109

ABSTRACT: Much of the risk perception literature relies on the important but unstated assumption that manipulating public opinion to conform to scientific assessments of risk could help the public and, in turn, policymakers make better decisions about whether and how to regulate. This paper argues that the assumption fails in the context of certain “multilayered” risks, or risks that pose tiered policy choices - not just whether to regulate in the first instance, but how to respond to derivative risks arising from the first set of regulatory changes. Examining the debate about the role of nuclear power in the United States' approach to climate change, the paper observes that first- and second-tier risks often differ in character, or require different types of regulatory solution (market-based versus command-and-control). Due to these variations, the public may hold starkly different views about regulation of each tier, and those views may be differently “sticky” - that is, differently susceptible to persuasion.

In the context of the nuclear power debate, this tiering of opinion has perverse implications. The first-tier risks of nuclear power are those associated with individual reactors, including the risks of accident or terrorist attack; the second-tier risks are those associated with mining, transport, processing, storage, and disposal of radioactive materials. Recent work asserts that despite entrenched public fear of nuclear power, it may be possible to induce people to support construction of low-emissions reactors as a strategy for mitigating climate change. But even if policymakers could employ the risk education strategies discussed in the literature to shift public opinion in favor of economic incentives for nuclear reactor development, there is no reason to think such strategies would be equally effective at changing attitudes toward second-tier risks and the command-and-control regulations necessary to address them. To the contrary, many people would likely continue to oppose certain types of government action on these latter problems, even assuming the complete success of the hypothesized first-tier education strategy. As a result, the United States could find itself with a thriving nuclear power sector, but without the political will to address the grave collateral risks.

These observations lead to two conclusions, one related to the nuclear power example, and one to risk regulation more broadly. First, differently sticky public attitudes toward first- and second-tier nuclear risks and their regulatory solutions may defeat any effort to respond to climate change by significantly and safely increasing U.S. reliance on nuclear power. Second, efforts to change public risk perceptions may not advance a regulatory agenda, and may even prove counterproductive. Specifically, where multiple risk layers exist, a successful first-tier education effort and consequent policy changes could create or expose second-tier risks that defy regulatory solution, leaving policymakers stranded at the abrupt and unexpected end of a half-built bridge. Depending on the gravity of the second-tier risks, this regulatory dead end could be one that neither policymakers nor the public would have chosen ex ante.

Holding Meiers and Bolton in Contempt

Congressional Democrats have a problem.  They have been stiffed by Harriet Meiers and Josh Bolton, who have refused to so much as  appear before Congress in response to subpoenas in conjunction with a congressional investigation of political interference with U.S. Attorneys.  Normally, when legally binding orders are disobeyed, the solution is to hold the disobedient party in contempt.  The trouble is that any criminal contempt citation must be presented to a grand jury and prosecuted by a U.S. Attorney.  One need hardly point out the irony, and it goes without saying that Bush is not about to let this happen.  So what should the Democrats do?

It's well established that Congress has inherent contempt power.  In theory, it could hold its own trial and use its own officers to lock up Meiers and Bolton in its own prison in the bowels of the Capitol.  As much as some of us would like to see this happen (it would make great TV!) it's not going to and probably shouldn't.  But Congress could use its inherent contempt power to get the matter into court, where many people think the controversy belongs. 

Here's what the Dems. should do:  They should hold a contempt trial in Congress and, assuming the evidence so warrants, find Bolton and Meiers in contempt.  Then, instead of trying to lock them up, they should send something labeled an "attachment order" to the banks holding Meiers' and Bolton's personal accounts.  The order should say that the banks are required to turn over, say, $1000 for each day until Meiers and Bolton agree to testify.  Either the banks will obey this order or they won't.  If they obey, Meiers and Bolton will either have to testify, lose all their money, or go into court to force the banks to stop the hemorrhaging of their accounts.  If the banks disobey, then Congress can sue the banks in court to enforce its order.  Either way, the mattere could then be settled by Article III judges.

Mike Seidman

Two New Articles

Here are abstracts of two new articles, together with links to SSRN:

Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and  the Crisis in Liberal Constitutional Theory"
     Harvard Journal of Law and Public Policy, Forthcoming
          Georgetown Law and Economics Research Paper No. 996599
          Georgetown Public Law Research Paper No. 996599

  Contact:  LOUIS MICHAEL SEIDMAN
              Georgetown University Law Center
    Email:  seidman@law.georgetown.edu
Auth-Page:  http://ssrn.com/author=39424

Full Text:  http://ssrn.com/abstract=996599

ABSTRACT: There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name.

In this brief essay, I do not take a strong stand on whether the constitutional case for gay rights has been made out. Instead, I attempt to explain why these opponents are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument and to speculate about why they nonetheless hold this view. While it is true that constitutional protection for gay rights depends upon contestable moral judgments, the failure to protect these rights also rests on such judgments. The argument that courts should not take a side in the ?culture war? is therefore a wash. Conservatives are nonetheless eager to discredit the argument for gay rights because the failure to do so would challenge core assumptions of standard constitutional theory.
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"Can Constitutionalism Be Leftist"
     Georgetown Law and Economics Research Paper No. 999574

  Contact:  LOUIS MICHAEL SEIDMAN
              Georgetown University Law Center
    Email:  seidman@law.georgetown.edu
Auth-Page:  http://ssrn.com/author=39424

Full Text:  http://ssrn.com/abstract=999574

ABSTRACT: In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet's effort to defend popular constitutionalism in his powerful and subtle book entitled "A Taking the Constitution Away from the Courts," I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist.
And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet's proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.
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Mike Seidman