The University of Chicago Law School Faculty Blog

Hearing Voices

With the blog experiment now up and running, we thought it time to experiment with some additional ways to share ideas. So, starting today, we will be from time to time posting some audio and video clips drawn from talks and events at the Law School. Our first few posts in this vein will be borrowed from events that have been hosted over the past few years, but soon we hope to have fresh content, and maybe even some content recorded especially for the blog. (Just think: in the not-so-distant future you might be able to listen to Lichtman and Picker talk about Grokster on your iPod while at the gym! I know, it gives us chills, too.)

Just to get the ball rolling, we start today with the 2004 Dewey Lecture given by Professor Peter Singer, Ira W. DeCamp Professor of Bioethics, University Center for Human Values, Princeton University. The lecture was entitled "America's Responsibilities as A Global Citizen." Professor Singer's lecture may be listened to in two parts: the introduction (by Professor Martha Nussbaum) and Professor Singer's talk, and the question and answer session. As always, feedback and suggestions welcome.

India: A Democracy’s Near Collapse into Religious Terror, Part III

I write not only to present a case study in the threat to democracy from religious tension, not only to engage Americans in an informed dialogue about India, but also to defuse the inaccurate and unhelpful assumption that Islam is a global monolith bent on violence.   When people talk of the “clash of civilizations,” or opine that Islam is not compatible with democracy, I find that (quite apart from their omission of Turkey and Lebanon) they typically know little about South Asia. (“South Asia” is the term usually used to refer to India, Pakistan, Bangladesh, Nepal, Sri Lanka, and sometimes Indonesia and Malaysia; it is distinct from “Southeast Asia,” the term that refers to Myanmar, Vietnam, Thailand, Cambodia, etc. One sign of this general ignorance: My c.v. mentions that I am a member of my university’s Committee on Southern Asian Studies.  When I am introduced for lectures, it is very common that the introducer changes this to “Southeast Asian Studies,” as if it was always fine to substitute a familiar term for an unfamiliar one.)   Few know, for example, that Bangladesh is a thriving, if poor, Muslim-majority democracy (about 85% Muslim), with democratic self-government, two energetic women who lead the two major parties, a strongly pro-woman official policy, and a constitution that protects fundamental rights very strongly, similar to India’s constitution.  Its national anthem, “Amar Sonar Bangla” (“My Golden Bengal”) is a song written by Hindu Indian poet Rabindranath Tagore.  As Amartya Sen says, “This must be very confusing to those who see the contemporary world as a ‘clash of civilizations’ – with ‘the Muslim civilization,’ ‘the Hindu civilization,’ and ‘the Western civilization,’ each forcefully confronting the others.” (Amartya Sen, “Tagore and His India,” The New York Review of Books June 26, 1997, 55-63.)

Should Saddam's Trial Be Fair?

Human Rights Watch lists the following concerns about the fairness of Saddam Hussein’s trial:

• No requirement to prove guilt beyond reasonable doubt. 
• Inadequate protections for the accused to mount a defense on conditions equal to those enjoyed by the prosecution. 
• Disputes among Iraqi political factions over control of the court, jeopardizing its appearance of impartiality. 
• A draconian requirement that prohibits commutation of death sentences by any Iraqi official, including the president, and compels execution of the defendant within 30 days of a final judgment.

Trenchant criticisms of this argument and related fairness concerns can be found here and here.  But although these authors cast doubt on HRW’s particular claims, they do not refute the underlying concern that animates these claims.  This concern, expressed as a question, is, What does fairness require?  Why might we think it necessary for Saddam to have a lawyer, or an opportunity to testify, but not, say, to have a jury of his peers?

The Next Nominee

Now that we are happily past the Miers nomination, the obvious question is: Who's Next? I would like to commend two candidates to Mr. Bush: Michael McConnell and J. Harvie Wilkinson. Both are conservative judges with distinguished records of achievement.

Have We Seen the Last of Harriet?

Article III Groupie is reporting that Harriet Meirs plans to stay on as White House Counsel.  I wonder if the President has something else in store for Miers.  Namely, there is apparently one vacancy on the U.S. Court of Appeals for the Fifth Circuit already, and several alleged short-listers currently serve on that court, raising the possibility of another vacancy in the coming weeks.  Whatever her shortcomings as a Justice, Miers seems like a perfectly plausible Fifth Circuit judge.  Plus, her nomination to that appellate court will give legal scholars and court watchers lots of evidence to answer the "what if?" question concerning Miers' ill-fated nomination to the High Court.  Given that the President probably feels badly about the way his hapless friend was treated, a life-tenure appointment with chambers in Dallas seems like an obvious consolation prize. 

Miers's Withdrawal, Cascades, and Information Markets

Cass's claim in his blog here yesterday was provocative because it claimed that one could discern a cascade.  Most of the comments were skeptical, though I must admit that I agreed with Cass's observation - hard as it is to test empirically.  The subsequent announcement by Miers of her withdrawal makes the cascade possibility yet more interesting.  So here is a further claim that I cannot prove: information markets (and perhaps other methods of communication) accelerate cascades, though we may want to call this effect something other than an information cascade.  Think of the position of a senator, and even of an academic or pundit or blogger (some overlap there), who sees an issue in play.  Some academics gain reputation from, or are by nature, contrarian, but in most walks of life it is useful to be right.  A senator normally expends political capital by backing a horse, but the expenditure is usually unprofitable if it is the wrong horse; a political commentator gains a following by predicting outcomes correctly; and even a business person or academic gains in reputation when events transpire as the person predicted.  The prognosticator is said to have good judgment.  In turn, if information markets are good predictors, perhaps because they aggregate information or judgment from dispersed parties in settings where many heads are indeed better than one, then one ought to look at the information markets (or proxies for them) and go along with the prediction.

Judy Miller: 85 Days for What?

For the past several months, most (though not all) members of the media have been falling all over each other applauding New York Times reporter Judith Miller’s courageous stand in defense of the “freedom of the press.” Now that she is out of jail, and has both testified and written about this incident, we can see more clearly what this was all about.

The Miers Cascade

An informational cascade occurs when imperfectly informed people pay attention to the signals given by the views of earlier speakers or actors; those imperfectly informed people join the cascade, thus amplifying the very signals by which they were influenced. If Adam thinks that global warming is a serious problem, Barbara may go along, and Charles may be reluctant to reject the shared view of Adam and Barbara; once Adam, Barbara, and Charles say, and think, that global warming is a serious problem, and once Danielle goes along too, a cascade is starting.

A reputational cascade occurs when people silence themselves because they don't want to be criticized, punished, or ostracized. Those who silence themselves, or seem to go along with the crowd, do not weaken and may even strengthen the reputational pressure on others. If Adam thinks that global warming is a serious problem, Barbara may go along for fear of incurring Adam's disapproval, and Charles may be reluctant to take on both Adam and Barbara; once Danielle goes along too, a reputational cascade is starting.

We are witnessing a Miers cascade, in which many people are giving negative or lukewarm signals largely because of (a) the information contained in the previous signals of others or (b) the reputational pressure to give negative or lukewarm signals. I don't mean to make any evaluation of Ms. Miers' nomination, or even to predict the outcome. But it is clear that we are in the midst of a textbook example of a cascade.

The Special Prosecutor's Authority

In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."

James Loewen's Fascinating New Book and Trying to Shame All-White Enclaves

I've spent the better part of the last two days reading sociologist James W. Loewen's terrific new book, Sundown Towns: A Hidden Dimension of American Racism.  I try to avoid cliches like "must-read," but the adjective seems apt for anyone interested in race and residential segregation.  Loewen's research is exhaustive and interesting, and stands as a powerful refutation of the idea that contemporary racial segregation results from voluntary choices by private actors.  Loewen documents the prevalence of municipal ordinances that prohibited African Americans from residing in particular towns and shows how these ordinances were supplemented by ugly roadsigns at the town limits stating, "Ni--er, Don't let the sun set on you in [this town]."  Many of these signs stayed up during the 1970s and a handful persisted into the 1990s.  Loewen recounts his own investigations of many sundown towns, but perhaps the most chilling is his account of Villa Grove, Illinois, where at 6pm every evening a siren atop the town's water tower rang out, reminding African Americans to get out of town.  Loewen's interviews confirmed that contemporary Villa Grove's residents understood full well the siren's purpose.  The siren-sounding practice continued until 1999[!] when it ceased, not because of shame or belated signs of conscious among the town's residents, but because residents living near the water tower complained about the noise.