Professor Mazzone's snark

Sandy Levinson

I found utterly dismaying both the tone and the analysis of Prof. Mazzone's snarky attempt to take down Emily Bazelon for her cautionary comments about the refusal to read Miranda warnings.  The only thing lacking from standard-model Fox News rants was a reference to "Yale Law School pointy-headed airheads" (like Jack Balkin?).  One can obviously have a genuine debate about whether there is, or should be, a "national security exception" to Miranda, but, presumably, that debate can be carried out with a courtesy lacking in Prof. Mazzone's post. 

Moreover, his "analysis" of Miranda is itself not a model for law students or professors.  Miranda, whether a wise decision or not, is predicated on the notion that the Constitution, and the values of dignity that it protects even for the lowest among us, requires that criminal defendants, upon being arrested, be informed of their constitutional rights.  It went on to say that the only practical way of safeguarding this important constitutional right is to exclude evidence obtained without such warnings.  (Again, one can obviously debate the merit of exclusionary rules.) 

What Prof. Mazzone has done is to adopt an entirely Holmesian perspective toward the decision;  i.e., it simply establishes a "price" that the police have to pay for doing whatever in hell they want to do.  If they don't mind having evidence excluded, then they properly feel under no obligation to adhere to the constitutional norm articulated by the SupremeCourt.  As most of you know, I'm not a devotee of judicial supremacy, so I'm more than happy to read arguments that the Supreme Court has been mistaken and even that there's no obligation to obey mistaken decisions.  But that's not  Prof. Mazzone's argument. 

As it happens, I think there's a lot of heuristic merit to a Holmesian ("bad man") understanding of the law, but, obviously, its implications go far beyond the duty of police to read suspects their Miranda rights.  Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so?  Ditto for our compliance with the tax laws of the United States, a subject of special interest this month?  Is it perfectly acceptable for presidents to order the torture of those they deem America's enemies because they are told that any lawsuits challenging this will be dismissed under the "state secret" or "political question" doctrines and thus beyond enforcement, as suggested by the DC Circuit in the Al-Alaki case dealing with targetting assassinations?   Is he adopting the well-articulated arguments in Abner Greene's recent book, published by the Harvard University Press and well worth extended discussion, that there is not even a prima facie obligation to obey any law (simply because it's"the law")?  All of these are serious questions, that can be debated seriously and courteously. 

Emily Bazelon is an able, well-educated, and thoughtful commenter on contemporary legal affairs.  That doesn't mean that she's always right.  But it does suggest that she's always entitled to be treated with more courtesy than Prof. Mazzone displayed in his remarks.
Posted 4:01 PM by Sandy Levinson [link]