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Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause

Perhaps the most famous character in modern physics is Schrödinger’s cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead—”mixed or smeared out in equal parts”—until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is not. Like the cat, it has spent much of its life (or non-life) in a box that makes direct observation impossible. Is the cross, like the cat, both alive and dead? And does opening the box—either metaphorically or otherwise—cause it to become one or the other? This Essay argues that recent forays into “constitutional physics” may have over-emphasized the role of box-opening judges, and thereby elided the cat’s predicament and the relationship between legal and social reality.

The Persistence of Boundaries: A Reply to Rosen-Zvi and Fisher

For those who have studied the blurry distinction between the civil law and the criminal law, it is natural to consider jettisoning the procedural divide between the two. Almost none of the literature on the subject, though, describes how the two bodies of law could be merged, or even takes the stance that they should be merged. Rather, scholars have tended to look for new standards or tests to help place a sanction within one of the two existing categories, to enhance the procedural protections available in certain civil proceedings, or to propose a new additional category for hybrid sanctions.

Professors Issachar Rosen-Zvi and Talia Fisher make a valuable contribution to the discussion by finally advancing a plausible way to dispense with the criminal-civil procedural bifurcation. They propose making procedural protections contingent solely upon the severity of the sanction and upon the symmetry (or lack thereof) between the adversarial parties in the proceeding. This approach eliminates the need to draw false distinctions between nearly identical sanctions, to divine a legislature’s motivation, or to apply procedural safeguards that are either excessively high or dangerously low. But the authors’ attempt to erase boundaries ends up erecting new ones, which are perhaps equally arbitrary and dysfunctional.

Professors Rosen-Zvi and Fisher acknowledge that their proposed procedural model is not a finished product, so in this brief reply, I hope to direct their attention and others’ to a few areas that warrant closer examination.

Deterrence, Retributivism, and the Law of Evidence

Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories—most prominently, those of deterrence and retributivism. Scholars, students, and policymakers laud or condemn doctrines based on notions of “just deserts” or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding dominate the debate. References to the deeper concerns of deterrence and retributivism, and the significance of various evidentiary and procedural rules toward the program of one or the other, are by and large absent.

Our article “Mediating Rules in Criminal Law” challenges this conventional divide between evidence and substantive criminal law theory. Our claim is that the traditional understanding of evidentiary rules in criminal law as geared overwhelmingly to truth in fact-finding is incomplete. Evidentiary rules, we argue, also perform a deeper, systemic function by mediating latent conflicts between criminal law’s deterrence and retributivist objectives. They do this by skewing errors in the application of the substantive law to favor whichever theory has been disfavored by the substantive rule itself. So, for example, if retributivism dominates the substantive law of insanity, special evidentiary rules governing the presentation and proof of that defense might cabin it in a way that responds to deterrence concerns by making it more difficult to invoke successfully. These “mediating rules” of evidence do this, moreover, without undercutting retributivist objectives as significantly as would redrawing the substantive defense itself. How is this so? In the next few pages, we will sketch the outlines of our theory and offer a brief illustration.

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