INTRODUCTION :: I argue here that an important implicit theme of the Model Penal Code: Sentencing (MPCS) Draft (Draft) is what I will call modern tragic skepticism about empirical proof in legal reform. By an admittedly somewhat stretched reading, I will infer from the Draft both the negative and positive aspects of this tragic view of the world: (1) a sober recognition of the limited human knowledge about the effects of our laws that is offset (2) by a sensible, chastened, realistic commitment to a spirit of reasonable experimentation in an unknowable world.
Thus, I am taking this occasion to reflect on our ambivalence about our ability to ever judge the success of legal reform. And I am doing so at a time when the empirical predicates of any such judgment are subject to the daunting demands of modern social science. In the context of the MPCS, this ambivalence results in part from the impossibility of coherently formulating the consensus goals for a sentencing system. But it also results from our recognition that even assessing means or the measures for the means’ effect may prove quixotic if we aim to satisfy the standards of modern statistics.
Although this is a contestable distinction, the MPCS Draft is a law reform document, not a policy design proposal. It rests on the American Law Institute (ALI)- venerated mixture of reliance on legal precedent (in the broad sense of legal tradition-not, of course, narrowly binding case law), consistency with jurisprudential principle, appeal to common sense fairness, respect for relative institutional competence, and general commitment to efficacy and economy. Thus, the Draft does not commit itself to the type of future empirical evaluation associated with “policy” programs designed by social science experts to achieve functionally specific goals within the legal system.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital