Sadomasochistic Judging

I have a new article out, entitled "Sadomasochistic Judging", in Constitutional Commentary. Nominally a book review of Richard Fallon's Law and Legitimacy in the Supreme Court, it's a classic law review style book review where the book itself is a flimsy veneer allowing me to talk about things I already wanted to talk about. 

In this case, "Sadomasochistic judging" is the practice of finding legal legitimation via the fact that a judicial opinion hurts people -- causes pain. It's legitimating because it supposedly falsifies the persistent worry that judges are merely imposing their own policy preferences, the inference being that if the decision is painful, then it is not be what the judge wanted to do but rather must be what the judge was legally compelled to do. Judges hate causing pain, but they crave the legitimacy hit they get from decisions that cause pain, and so end up pursuing pain as a means of garnering this illusive feeling of legitimation. Hence, sadomasochism: judges gain pleasure from the pain of causing pain.

Here's the abstract:

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial “hard cases,” many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent. 

As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them—upholding “uncommonly silly laws,” protecting “speech that we hate,” reluctantly permitting terrible injustices to persist because the law “ties our hands.” Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges—a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.

This article is also special for another reason: it is the first one where my bio includes my new title -- Assistant Professor of Law, Lewis & Clark Law School. It's jumping the gun a little bit, but I don't think anyone will begrudge me my eagerness.