Statutory rape in Wisconsin Registration As A Sex Offender: a comment on RS's comment

[Robert Sheridan]

We do prohibit coin-flipping and lot-drawing in jury rooms...

Nancy Reagan was a big fan of horoscopes.  If she, for an irrational  
reason, had persuaded her husband the president to take a rational  
stance, would it be irrational?  If a tree falls...

We developed a lot of science out of astrological interest, once we  
figured out what we needed to do to get it right.

Have you ever noticed that the scientists and doctors have self- 
correcting mechanisms that seem to work a lot of the time, but that  
our, in law, don't?  Why do we keep tripping over the same stones so  
often, to wit the false convictions we read about so frequently?

Is it because courts and legislatures are anything but rational  
creatures a good deal of the time?

Why DO we still have the death penalty?

rs
sfls


On Aug 9, 2007, at 7:15 AM, Howard Schweber wrote:

>
> I think there is an important distinction that is being overlooked  
> here.  A law can fail rational basis for two distinct reasons:   
> because a court finds that it is not "rational" (the meaning of  
> which has been the focus of the discussion thus far) and because  
> the stated relationship between  means and ends is so unlikely that  
> the reviewing court doesn't believe it -- in other words, a pretext  
> case.  In my own efforts to figure out the development of rational  
> basis, I have found that it is almost always the case that a law  
> that fails rational basis does so because the reviewing judges find  
> that the proferred justification for the law is a pretext for an  
> *improper* motive.
> There are two well-recognized categories of improper motives that I  
> can think of:  the "bare animus" of the legislature toward a  
> category of persons (recognized in Plessy v. Ferguson, for example)  
> and the desire of a state legislature to benefit local industries  
> by burdening the importation of goods from other states.  Lawrence  
> and Romer were decided on the basis of the first; Kassel and other  
> dormant commerce clause cases are decided on the basis of the second.
>
> What would actually constitute a law that failed constitutional  
> muster because it was entirely irrational is an interesting  
> question.  To answer that question requires taking a position on  
> epistemological questions; one would have to say that a  
> legislators' honest and heartfelt belief  (i.e. non-pretextual) was  
> so universally recognized as being without merit as not to  
> constitute a "rational" reason for acting.  (Note that one can  
> hypothesize a case for a stated purpose that is a pretext for  
> another, legitimate purpose, but it's hard to see why anyone would  
> do that unlless the real purpose was likely to fail rational basis  
> on a ground other than pretext.)
> So what would qualify . . . astrology?
>
> Howard Schweber
> Dept. of Political Science
> UW-Madison
>
>
>
>
>
>
>
>
>
> obert Sheridan wrote:
>> I appreciate the clarification.
>> While I recognize that there is surely a difference between what  
>> is rational and what a court may accept as rational, I'm not sure  
>> that court failure to recognize irrationality makes it any more  
>> rational.
>>
>> At one time I tried to track down what we mean, or the Court  
>> means, by "rational" or "irrational" and got myself into the  
>> nearest thing to either an infinite regress on the one hand or  
>> circular reasoning on the other, in which the words could not be  
>> defined without using them.
>> In Kassel v. Consolidated Freightways Corporation (1981) 450 US  
>> 662, the Court pronounced as "illusory" a state of Ohio regulation  
>> prohibiting "double-bottom" (or tandem) rigs as unsafe on  
>> Interstate 80 when the facts showed that their use didn't  
>> materially increase the number of accidents.   Through all the  
>> discussion of commerce clause values, rational basis certainly  
>> seems to be among the main issues, certainly for then Justice  
>> Rehnquist in dissent as he refers to 'rational safety measures'  
>> and 'rational policy determination[s]'.
>>
>> The prohibition instead would force hauling companies to separate  
>> the dual rigs and tow them one at a time through the state or  
>> drive around it, thus increasing driving mileage.  Driving mileage  
>> was deemed to be the operative test of highway safety, as in  
>> accidents per mile driven.  More trips, more accidents would be  
>> the actuarial result.
>> This showed me that the test of rationality is, or should be, more  
>> fact-driven than logic driven, although you can't very well have  
>> one without the other.  Thus if a regulation is self-canceling, or  
>> self-contradictory in practice, a sort of law of self-defeating  
>> unintended consequences, then it is, or should be, irrational for  
>> American law purposes.
>> I thought that the death penalty fell into this area given the  
>> lack of wonderful results from seeing it applied.
>>
>> rs
>> sfls
>>
>> On Aug 9, 2007, at 5:06 AM, michael curtis wrote:
>>
>>> This is the context for my comment which follows.  On Aug 8,  
>>> 2007, at 10:45 AM, michael curtis wrote:
>>>
>>>>  I suggested that in facts like these to require registration as  
>>>> a sex offender--on the assumption that the act shows a  
>>>> proclivity that will persist to molest children--is irrational.   
>>>> Whether it is unconstitutional is another question.
>>> And all this time I've been teaching that under the rational  
>>> basis test, if a statute or government act is irrational, it's  
>>> unconstitutional.
>>>
>>> Shame on me.
>>>
>>> rs
>>>  I meant whether the courts will say it is unconstitutional is a  
>>> different question from whether a provision is irrational--I  
>>> assumed wrongly that that assumption was clear.  There is a  
>>> pretty clear distinction in my mind between what is really quite  
>>> irrational and what our esteemed judges and justices will treat  
>>> as irrational for constitutional purposes at any given time.    
>>> This is clearer when you look over the broad sweep of history. Eg  
>>> (had it been raised in those terms) women can't practice law.   
>>> Then, there is a distinction between rational basis with bite--or  
>>> heightened rationality and the not insane therefore ok version.    
>>> Lawrence finds the prosecution of gay men for sex at home lacks  
>>> rationality; Bowers found it was rational. So one who agrees with  
>>> the Lawrence approach could reasonably say at the time of Bowers  
>>> that the  prosecutions lack rationality, but are not  
>>> unconstitutional in the sense that the court gets the final word  
>>> on that and there are not yet enough votes.  (And soon may not be  
>>> again, but that is another matter.)
>>>  Michael Curtis
>>>
>>>     ----- Original Message -----
>>>     *From:* Robert Sheridan <mailto:rs at robertsheridan.com>
>>>     *To:* michael curtis <mailto:curtism at bellsouth.net>
>>>     *Cc:* Rosenthal, Lawrence <mailto:rosentha at chapman.edu> ; Paul
>>>     Finkelman <mailto:PFink at albanylaw.edu> ; Eugene Volokh
>>>     <mailto:VOLOKH at law.ucla.edu> ; CONLAWPROF at lists.ucla.edu
>>>     <mailto:CONLAWPROF at lists.ucla.edu>
>>>     *Sent:* Wednesday, August 08, 2007 9:29 PM
>>>     *Subject:* Re: Statutory rape in Wisconsin Registration As A Sex
>>>     Offender
>>>
>>>
>>>     On Aug 8, 2007, at 10:45 AM, michael curtis wrote:
>>>
>>>>      I suggested that in facts like these to require  
>>>> registration as a     sex offender--on the assumption that the  
>>>> act shows a proclivity
>>>>     that will     persist to molest children--is irrational.   
>>>> Whether it is
>>>>     unconstitutional     is another question.
>>>
>>>     And all this time I've been teaching that under the rational
>>>     basis test, if a statute or government act is irrational, it's
>>>     unconstitutional.
>>>
>>>     Shame on me.
>>>
>>>     rs
>>>     sfls
>>>
>>>
>>
>> --------------------------------------------------------------------- 
>> ---
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see  
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed  
>> as private.  Anyone can subscribe to the list and read messages  
>> that are posted; people can read the Web archives; and list  
>> members can (rightly or wrongly) forward the messages to others.
>>
>
>