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Life of a Law Student, University of Houston Law Center

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“N” Procrastinating Law Students

By: Luke Gilman | Other Posts by
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Procrastination is a wily foe of many forms. On our final day in Law and Economics, Prof. Volokh mentioned one of his first papers, N Guilty Men, a Penn Law Review piece published before he even went to law school and praised by widely admired, if perhaps partial, legal commentators. It occurred to me, succumbing to the slippery rationality of a law student soon to face the executioner exam, that perhaps this mention was no mere mention. I decided I should, nay must, read the paper on the off-chance it had some greater, GPA-affecting significance.

“Better that ten guilty persons escape than that one innocent suffer,” 2 says English jurist William Blackstone. The ratio 10:1 has become known as the “Blackstone ratio.” 3 Lawyers “are indoctrinated” with it “early in law school.” 4 “Schoolboys are taught” it. 5 In the fantasies of legal academics, jurors think about Blackstone routinely. 6

But why ten? Other eminent legal authorities through the ages have put their weight behind other numbers. “One” has appeared on Geraldo. 7 “It’s better for four guilty men to go free than one innocent man to be imprisoned,” says basketball coach George Raveling. 8 But “it’s better to turn five guilty men loose than it is to convict one innocent man,” according to ex-Mississippi executioner and roadside fruit stand operator Thomas Berry Bruce, who ought to know. 9 “It is better to let nine guilty men free than to convict one innocent man,” counters lawyer Bruce Rosen from Madison, Wisconsin. 10 Justice Benjamin Cardozo certainly believed in five for execution, 11 and allegedly favored ten for imprisonment, 12 which is a bit counterintuitive. Benjamin Franklin thought “that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.” 13 Mario Puzo’s Don Clericuzio heard about letting a hundred guilty men go free and, “struck almost dumb by the beauty of the concept . . . became an ardent patriot.” 14 Denver radio talk show host Mike Rosen claims to have heard it argued “in the abstract” that it’s better that 1000 guilty men go free than one innocent man be imprisoned, and comments, “Well, we get our wish.” 15

Or, perhaps, it may be merely “a few,” 16 “some,” 17 “several,” 18 “many” (and particularly more than eight), 19 “a considerable amount,” 20 or even “a goodly number.” 21 Not all commentators weigh acquitting the guilty against the conviction of one innocent man. A Missouri district court said in 1877 that it was “better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge.” 22 And in Judge Henry J. Friendly’s opinion, “Most Americans would allow a considerable number of guilty persons to go free than to convict any appreciable number of innocent men.” 23 It is unclear whether “considerable” is greater or less than “appreciable.” 24

n guilty men, then. The travels and metamorphoses of n through all lands and eras are the stuff that epic miniseries are made of. n is the father of criminal law. This is its story.

So, now 30 minutes later, I may be no closer to grasping the intricacies of the expected value of a legal claim in settlement negotiations or offering a normative critique on the legal system’s effect on wealth and inequality, but I am now cognizant of the contribution of Geraldo to our criminal jurisprudence. Surely the opportunity cost of my neuroticism is a foreseeable harm from such careless mentions, warranting either reliance damages of a corresponding allowance of time on the exam or expectation damages of the value of point-scoring I might reasonably expect from such knowledge.

In that same class, Prof. Volokh let slip a similarly gnawing comment when he noted that perhaps the most efficient approach to teaching Law and Economics would be to tell us that the exam would be exceedingly difficult and important, but then not to give an exam at all, since our studying for the exam is the more important part of imparting knowledge than taking it. Were this any other professor I could be sure that this was kidding, but now I’m not so sure. Better to let n procrastinating law students go free than make an overly neurotic one unduly suffer?

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