The University of Chicago Law School Faculty Blog

A Jujitsu Defense?

Human Rights Watch has issued a report expressing concerns about the fairness of Saddam’s trial.  The report makes some useful points but otherwise is a triumph of the legalistic mentality over pragmatism.  Whether Saddam is executed or imprisoned for life, the outcome will be (substantively) fair, regardless of whether the trial is procedurally fair.  The only possible unfairness would be an acquittal or short sentence.  To be sure, the trial should be procedurally fair, to the extent that logistics, politics, security, and administrative convenience permit.  But procedural fairness does not exist in a vacuum; it must be weighed against other considerations.  HRW-style legalism is what led to the Milosevic trial, which has been dragging on for almost four years with no end in sight.  If procedural fairness as HRW understands it requires a four year trial of Saddam, then better to do without procedural fairness.

Two Cheers for Genetic Testing

As my initial contribution to the University of Chicago webblog, I have chosen to defend (surprise!) a position that is widely regarded as unfashionable—or worse. The right of an employer to rely on or engage in genetic testing to decide whether to make an offer to a potential employee, and what kind of offer to make if he decides to go ahead.

Broken Windows

Over at the Legal Affairs Debate Club this week, Bernard Harcourt is debating whether police efforts to reduce minor crimes (think vagrancy, panhandling, and the like) can really lead to a significant reduction in more major crimes -- the so-called "broken windows" theory of policing.  Joining him in the conversation is David Thacher from the University of Michigan.

Saddam's Trial: Charges

Unless additional charges are brought against Saddam, his trial, which begins this week, will examine his role in the massacre of more than one hundred people after a failed assassination attempt against him near the town of Najail in 1982.  He has not been charged with the massacres of Kurdish civilians in the 1980s, of the Shiites who revolted against his rule after the first Gulf War, and of his political opponents throughout his bloody reign; nor has he been charged with torture and other human rights abuses of his citizens; nor has he been charged with war crimes (including the use of poison gas) during the Iran-Iraq war and the first Gulf War.  It’s as though Hitler had been captured at the end of World War II and charged with ordering the massacre of those associated with the failed assassination attempt against him in 1944, but not with ordering the Holocaust.

India: A Democracy’s Near Collapse into Religious Terror

While Americans have been focused on the war on terror, Iraq, and the future of democracy in the Middle East, democracy has been under siege in another part of the world. India -- the most populous of all democracies, and a country whose Constitution protects human rights even more comprehensively than our own -- has been in crisis. Until the spring of 2004, its parliamentary government was increasingly controlled by right-wing Hindu extremists who condone and in some cases actively support violence against minorities, especially the Muslim minority. Many seek a fundamental change in India's pluralistic democracy. Despite their recent electoral loss, these political groups and the social organizations allied with them remain extremely powerful. The political future is unclear.

The Intangible Right to Honest Services

This is the second in a series of posts in which I use the George Ryan trial to illustrate the unfairness of federal mail fraud and RICO prosecutions.

The Mail Fraud statute, enacted in 1872, forbids “devis[ing] any scheme or artifice to defraud” and then placing something in the mail for the purpose of executing this scheme. The 1872 statute incorporated the common law concept of fraud, which consists of depriving someone of property by lying.

The iPod: RAZRs and Blades 2.0 and 3.0

Lots of related news stories this week; such is the nature of business coevolution.

Take this group of stories. Monday the Wall Street Journal had a front-page story (paywall I assume) on podcasts, not by the blog forward wave but instead by ABC News and Clear Channel. The same day, the New York Times ran a story on efforts by the Japanese music industry to impose a content tax on iPod sales in Japan. This would be a royalty tax, and the revenues would be distributed among the participants in the music industry.

On Wednesday, Apple introduced a new iPod for video (stories here and here). That same day, Apple reported that its quarterly profit had quadrupled. And on Thursday, the Wall Street Journal ran two stories (here and here) about how Comcast was altering its strategy, including teaming up with Google to buy a piece of AOL.

What is going on? The answer is the ever-changing role of RAZRs and Blades. Well, not really RAZRs and Blades but razors and blades.

Saddam on TV

Trials are a superb source of drama because of a double tension – one, between the prosecutor and the defendant; the other, between substantive justice and legal process.  The audience does not know who will win the case, and it does not know whether justice will be done.  A standard device in literary depictions of trials is to let the reader know that the defendant is guilty (or not), and then the reader will keep turning pages in order to find out whether the defendant will get off on a technicality (confession without Miranda warnings), whether the prosecutor will overcome the technical problem (defendant takes the stand and breaks down), and so forth.  An author, screenwriter, or film producer with even modest talents can produce a compelling drama just by framing it as a trial.

Bork and Stone Agree!

Robert Bork ('53) and I don't agree on much, but we do agree on Harriet Miers: She is not qualified to serve on the Supreme Court of the United States.

Bork has described the Miers nomination as a "slap in the face" to conservatives. But it is worse than that. It is a slap in the face to women, to the Court, and to the American people.

The politics of this nomination seems to have everyone in Washington spinning in circles. Conservatives, who only a month ago proclaimed that senators should not oppose a Supreme Court nominee "merely" because of a disagreement over ideology, furiously oppose Miers on the ground that the president has betrayed his committment to transform the Court in the Federalist Society image.

Liberals, who should oppose Miers because of her patent lack of qualifications, sit on their hands, relishing the internal Republican fireworks. They are paralyzed by the fear that if they join the right-wingers in defeating Miers, the president will then saddle them a more qualified and much more rigidly predictable conservative in her place.

Chicago's Phantom Professors

Larry Solum's Legal Theory Blog links to a new study by David Horowitz and Joseph Light purporting to demonstrate that the nation's elite law and journalism faculties lack ideological diversity. The study, which Cass discussed a couple of days ago, singles out the "supposedly conservative" University of Chicago Law School faculty for criticism after determining that Democrats outnumber Republicans on the faculty 55 to 8. Curiously, the study finds no registered libertarians on the Chicago faculty. Solum expects "this work will provoke a strong reaction." . . . Uh, yeah. My strong reaction is where the heck did all these Chicago law professors come from?  The study claims to exclude clinical faculty and adjunct faculty, but still manages to find 100 full-time law professors at the University Chicago, or 67 more professors than our own web site indicates we have (show "full-time faculty"). According to the table on page five of Horowitz and Light's paper, Chicago has a larger faculty than Harvard, Columbia, and NYU! Perhaps Saul Levmore has finally succeeded in his secret plan to create an army of Cass Sunstein clones. In any event, Chicago's genuine ideological and intellectual diversity among students and faculty is one of its greatest charms, and Horowitz and Light ought to fact check their own work before jumping to conclusions. (I'll leave it to others to debate whether Democrat v. Republican partisan affiliation is a useful measure of ideological diversity on law faculties.)