purple motes

A law professor figured out that persons cannot be legally prosecuted for crimes that take place in Yellowstone National Park’s fifty-square-mile area in Idaho. He wrote an article about the law’s Yellowstone-Idaho crime problem. The Georgetown Law Journal accepted and published his article.  No one has convincingly refuted his legal analysis.

In conjunction with his publication, the law professor valiantly but unsuccessfully attempted to get legal authorities to resolve the Yellowstone-Idaho crime problem.  He explained:

I quietly sent drafts [of his law journal article] to the Department of Justice’s Office of Legislative Affairs, the U.S. Attorney in Wyoming, and the majority and minority counsels for the House and Senate Judiciary Committees.  …  The U.S. Attorney responded that he had no power to amend the law.  The Department of Justice did not respond at all. Neither did the Senate Judiciary Committee.[1]

The law professor tried again, with a more extensive set of authorities:

I wrote to the majority and minority counsel and all of the members of the two relevant Judiciary subcommittees: Courts, the Internet, and Intellectual Property on the House side, and Administrative Oversight and the Courts on the Senate side. That was twenty-two representatives, seven senators, and four staff lawyers.[2]

He received no responses to any of these letters.  He concluded:

I had learned my lesson. A person with just an idea—a person who is not a lobbyist, who makes no campaign contributions, and who relies simply on the force of his arguments—should not count on members of Congress acknowledging his letters or phone calls. If someone in Congress does notice his idea, he should not count on being in the loop, let alone being consulted. He should not expect to get a serious legal reply to his legal arguments.[3]

Most persons are not interested in ideas apart from organizations, status networks, and material interests.  That’s as true for law professors as it is for members of Congress.

Economics applies to ideas and affects reasoning.  The Yellowstone-Idaho crime problem that the law professor identified in 2004 has existed since 1894.  Across those 110 years, the problem has apparently produced no effects.[4]  Significant interests are attached to court jurisdictions, especially with regard to federal lands. Moreover, political negotiations about political boundaries are difficult.  Because the Yellowstone-Idaho crime problem fails a cost-benefit test for real-world action, Congress reasonably ignores it.

The real-world operation of the criminal justice system could easily compensate for the problem that the law professor discovered.  The federal criminal code has expanded relatively rapidly.  It contains vague, general descriptions of crimes that most people do not clearly understand.  As a result, U.S. prosecutors have enormous discretion in choosing who to prosecute, what crimes to prosecute, and what sort of plea bargains to accept.  If someone did commit murder in what the professor calls the “zone of death,” the criminal justice system could easily ensure that that persons was punished for years for some crime.[5] Such action highlights some truly significant legal problems.  The legal problem that the professor identified isn’t such a problem.

The law professor has emphasized that his article creates an incentive for crime, the “perfect crime,” murder. But nobody lives in that area of Yellowstone National Park. The idea of planning a perfect crime is mainly a figure of crime novels.  Most crime takes place without much sophisticated prior legal analysis of legal effects.[6] That the law professor’s article would spur murder is wholly implausible.  Making such a sensational claim is best understood as a tactic in competition for attention.  That sensational claim also indicates that the Yellowstone-Idaho crime problem isn’t serious enough to attract attention without such tactics.

The law professor’s article about the Yellowstone-Idaho crime problem, entitled “The Perfect Crime,” has attracted considerable attention.  The law professor observed:

I posted the article on the Social Science Research Network (SSRN) one day in March 2005. The next day, Orin Kerr made some favorable comments about it on The Volokh Conspiracy blog. That touched off a cascade of downloads, further media and blogger attention, and more downloads. For a while, The Perfect Crime was the most downloaded constitutional law paper in SSRN history.
My theory was written up in the Washington Post. I was interviewed on NPR’s All Things Considered and a similar Canadian program, As It Happens. The BBC website ran a story, as did a Japanese newspaper. Local media in Idaho and Wyoming followed suit. John Hodgman (soon to be of the Daily Show) invited me to give a public lecture on my article in Brooklyn. The crowning moment, though, was the article in the National Enquirer.[7]

The Yellowstone-Idaho crime problem also attracted notice in the Wall Street Journal and was used as a plot device in a novel that rose to 29’th place in a national best-seller list.[8] But surely for a law professor, the crowning moment must have been having a second article concerning the Yellowstone-Idaho crime problem accepted for publication in the Georgetown Law Journal. The first line of the title for this article, “Tabloid Constitutionalism,” describes well both the article’s subject matter and its rhetorical orientation.

The marketplace of ideas can perform quite badly.  The few officials who have addressed the Yellowstone-Idaho crime problem have displayed remarkably poor reasoning.[9] These officials probably aren’t stupid and probably don’t have contempt for constitutional law. But real demand for a good response to the Yellowstone-Idaho crime problem hardly exists. Legal scholarly competition, in contrast, generates intense demand for writing and publishing articles. The law journal articles on the Yellowstone-Idaho crime problem are better written, contain more original legal analysis, and more clearly display the joy and thrill of studying law than most law review articles. These articles suggest that the legal academy is failing to allocate intellectual talent to important problems and to create useful intellectual work.

*  *  *  *  *

Read more:

• anxiety about acknowledging scholarly competition
• scholarly status competition in thirteenth-century Baghdad

Notes:

[1] Kalt (2008) p. 5.
[2] Id. p. 6.
[3] Id. p. 7.
[4] Federal law first established the United States District Court for the District of Wyoming, which includes Yellowstone National Park’s fifty-square-mile area in Idaho, in 1894. See Kalt (2005) p. 5 ft. 17. The boundaries of this district, along with state lines and the U.S. constitution, create the Yellowstone-Idaho crime problem. No crimes can plausibly be attributed to the Yellowstone-Idaho crime problem, and no person has escaped criminal punishment because of this problem. See Kalt (2008) pp. 10-13.
[5] Perhaps the crime would be using mail to plan to commit a felony.  Presumable a person who planned to go to the “zone of death” to commit a crime would use the mail system or the financial system in some way prior to the trip.  That would probably be enough to generate a winning claim of criminal activity outside the “zone of death.” That could easily provide a pretense for punishment for criminal activity within the “zone of death.” Kalt (2005) pp. 13-4 addresses this issue by describing his concern in a way that gives it even less practical significance. With respect to real-world legal action, Kalt (2008) p. 12 describes how prosecutors arranged a plea bargain to avoid legal analysis of the Yellowstone-Idaho crime problem.
[6] Common sense indicates that punishment deters crime. But this effect is hotly debated in academic literature. The effect of functioning institutions of punishment on crime is likely to be much greater than the effect of a law professor’s legal analysis on crime.
[7] Kalt (2008) p. 3.
[8] Id. p. 4.
[9] Id. pp. 6-8, 11-12.

References:

Kalt, Brian C., The Perfect Crime. MSU Legal Studies Research Paper No. 02-14. Available at SSRN: http://ssrn.com/abstract=691642 ; also The Perfect Crime, 93 GEO. L.J. 675 (2005).

Kalt, Brian C.,Tabloid Constitutionalism: How a Bill Doesn’t Become a Law. Georgetown Law Journal, Vol. 96, No. 6, 2008; Available at SSRN: http://ssrn.com/abstract=1136301