Linda Ross Meyer’s research while affiliated with Quinnipiac University and other places

This speech, given at the Northeast Law and Society Conference, January 2013, explores some possibilities for a “re-enchantment” of law and for the future of “law and society” scholarship.

Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. This essay examines legal redress for loss in various doctrines of private and public law in order to map the relation of law and suffering and explore how they shape each other. Law seems to compensate for the lack of law, for 'unjustified' or 'unusual' suffering, but not for experiences of suffering 'as such.' Is law wrong to do so? Is there some other pre-normative account of suffering to which law should respond? Can 'raw' suffering cut through legal language? Part one sets out the relation between suffering and wrong in the law. Part two examines how the law often elides the normative with the normal, the 'wrong' with what is unexpected. Part three suggests that the suffering that is the absence of the 'normal' is linked with our need for reliability and is a defense against our finitude. Part four explores the example of torture, the paradigm of lawless suffering 'for nothing' that undermines lawfulness itself. Part five discusses the aspects of 'suffering' or hurtful loss that are left out of law. I conclude that suffering in law is normative all the way down, resistant to any simplistic reductionism or unmediated 'experience' of the other. Suffering, moreover, is intimately tied in law to the frustration of our 'will to law.' The 'will to law,' a human desire for reliability and pattern that protects a finite being from a chaotic world, seeks to normalize the unusual and the aberrant. Even when law tries to compensate for 'actual' suffering, and tries to take suffering as a scientific object, the 'will to law' makes empirical suffering or pain difficult to measure, because sufferers adapt to the familiar, routine, and normal, and the familiar is not experienced or understood as suffering. Sufferers’ own 'will to law' makes the quotidian into the lawful and justified, thereby obscuring (or perhaps alleviating) their own suffering. Finally I look at forms of lawful pain or loss that are left unaddressed and therefore unredressed by the law’s conception of suffering: 1 normal 'background' pain or loss, 2) lawful pain or loss 'for a good reason,' and 3) the loss of our openness to change and disruption that our 'will to law' itself causes, and that is a loss of the capacity for suffering itself.

This brief essay explores Hans Christian Andersen's story "The Princess and the Pea" for how it illuminates issues of suffering, compassion, victimization, political leadership, and mercy.

What do crime victims want? The answer suggested by Alexandre Dumas' iconic character Edmund Dantés in The Count of Monte Cristo suggests that victims may want retribution, not revenge. Victims may seek more than restored honor or personal restitution. They may long for justice to prevail as an affirmation that the world still makes sense. Yet, Dumas also reminds us through the novel that human justice is only human and cannot provide this kind of cosmic guarantee. From this perspective, it is revenge, not retribution that looks more measured and more humane.

This article challenges the view, most recently articulated by Dan Markel, that merciful mitigation of punishment by state actors is contrary to principles of retributivism, equality, and democracy. In addition to providing a theoretical response to these arguments, the article points out that our justice system is (and should be) riddled with mercy, and when mercy is given out of equity, relationships of allegiance, peace-making, or compassion, it may ground and confirm responsibility and community - not undermine them. Concluding that a theoretical challenge to mercy fails, the article examines many instances of clemency and pardon to begin a more contextual, case-based look at when mercy is appropriate and when it is not.

This paper reflects on themes of love, loyalty, and sacrifice in the film version of 'To Kill a Mockingbird.' Using the typology of Kierkegaard's knight of the infinite/knight of faith, the paper argues that Atticus does not stand for liberal principles of universal law but rather faith in the possibilities of friendship and neighborliness.

This article is a book review of Danielle Celermajer, “The Sins of the Nation and the Ritual of Apologies” and Nir Eisikovits, “Sympathizing with the Enemy."

The problem of 'justifying' mercy is old, but it has resurfaced recently in light of debates over "restorative justice" alternatives to state-imposed retributive punishment. We wonder whether a victim/offender reconciliation that does not involve a painful sentence can be just; we wonder whether an executive is ever right to pardon out of compassion; we wonder whether judges should have discretion to sentence leniently in cases where defendants are remorseful, have dependents, are ill, have reformed, or are community heroes. Within the retributive punishment tradition that understands punishment as some form of "just deserts" based on the crime alone, all of these exercises of leniency are illegitimate. This book challenges this orthodoxy at its Kantian conceptual roots, rereading the philosophical tradition to argue that mercy is the prerequisite for just punishment, rather than its nemesis. The first step is taking seriously the idea that humans live with each other in time, not as isolated "reasoners" or "choosers" in a conceptual eternity. From this insight follows an account of law as common law, not universal rules; an account of punishment as a response to wrongs that resettles relationships for the future in conditions of uncertainty; and an understanding of mercy as a fundamental ethical requirement never to give up on each other. By unearthing an alternative to our "just deserts" apologies for a cruel and broken penal system, the hope is that all the rich institutional possibilities imagined by the restorative justice movement will become more conceptually acceptable and available.