The University of Chicago Law School Faculty Blog

Saddam's Legal Strategy

Saddam’s trial will begin next week, according to news reports, and will even be televised. I will, from time to time, post comments on this trial, as it unfolds. In an op-ed published two weeks ago, I argued that one danger posed by the trial is that if the judges interpret the law broadly, former Baathists, and those complicit in their crimes, will fear that they will be arrested next, and will therefore be driven into the arms of the insurgents (or more deeply into their arms, as the case may be). The decision about who to punish and who to amnesty is really a political, not a legal, decision, and the court should act cautiously by applying the law as narrowly as possible, since it seems likely that any successful constitutional settlement will not involve the eventual incarceration of a large number of Baathists.

Today, I want to discuss Saddam’s strategy. We don’t know what Saddam wants to accomplish: does he want to be a hero or martyr? Does he want to justify his reign? Does he hope to stir up such chaos in Iraq so that America will leave and he will be released? Does he think that he can persuade the judges to declare his innocence? We don’t know the answers to these questions, but it is nonetheless useful to describe Saddam’s two main options – options that are faced by every defendant in a political trial, whether a national leader or a local anarchist. (I discuss these issues in more detail in an academic paper.)

The main decision faced by a defendant such as Saddam is whether to cooperate with the tribunal or to refuse to cooperate. Each approach has advantages and disadvantages.

New Voices

Things might be quiet here today, both because of Yom Kippur and because it is call-back week for our second-year and third-year students.  By Monday, however, we should be back at full speed, and among the new posters joining us should be Al Alschuler and Eric Posner (both of whom are already up and posting), Martha Nussbaum, Dick Posner, and Geof Stone.  We welcome continued feedback as we work to develop this site. And, as always, thanks so much for reading.

Timing in the Clerkship Market

Law students and judges are well aware of the changes that have come about, at least for now, in the clerkship market. A number of federal judges built a consensus to move the hiring of clerks from the second year (where it had migrated to earlier and earlier dates as one might have expected of those "fishing" from a common pool) to the third year of law school.  Judges and law schools agreed, more or less, that applications and recommendations would be submitted no earlier than Labor Day of the student's third year, after which there would be a reading period of 10 days or so before offers would be extended.  A few judges declined to follow the guidelines, and only time will tell how fast or whether the system will break down; past attempts to control the accelerating market were short-lived.  By its terms, the guidelines excluded Supreme Court clerkships and also excluded applicants who were no longer in law school.  Put differently, those "post-law-school applicants" had three years of grades to present to judges, and so while their presence in the market might have caused a rush to hire them, it could not be said that there was a great gain in waiting for more grades or more time to allow the applicants to make more informed personal decisions regarding where one wished to live.  It might have been difficult to explain a decision to "ban" hiring post-law-school applicants until Labor Day of the third year of their competitors' law school experiences. Judges and law schools also sought to initiate an on-line uniform application ("OSCAR"), and that innovation might be linked to the post-Labor-Day-3L plan because the plan contemplated the bundling of paper application materials and their submission by the law schools, which imposed a substantial cost on schools. The on-line system was not widely accepted and has experienced some startup difficulties.

Why George Ryan Won't Get a Fair Trial

The trial of former Illinois governor George Ryan and his co-defendant, businessman Larry Warner, began in September and is expected to continue into January or February.This trial illustrates how prosecutors can use the federal mail fraud and RICO statutes to deny fair trials to defendants. Over the course of this wide-ranging trial, jurors will hear every allegation of criminal and non-criminal misconduct by Ryan and Warner that prosecutors have collected by threatening their former associates (and one former associate’s fiancée) with heavy mail fraud sentences of their own. The alleged misconduct will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.

Why are hedge funds so successful?

With all the talk about hedge funds – the dramatic successes (about 20 hedge fund managers earned in excess of $100 million in compensation last year), and the rising number of flameouts (from the Bayou Group to the Eifuku Master Fund in Japan that lost its $300 million portfolio in seven trading days) – few have focused on the question of how hedge funds are able, so far, to earn higher returns than other investment vehicles. (The largest hedge fund index beat the S&P by about 3% last year, and many of the largest funds earned returns in excess of 30%.)

A couple of hypotheses, some benign and some potentially troubling:

Elsewhere: Berman's Blog, and Mortal Kombat

Over at Doug Berman's Sentencing Law and Policy Blog, the conversation about jury voting rules continues.  In the comments to the main post, Doug makes an especially interesting point about the tradeoff between efficiency and efficacy; I suspect that similar concerns might have relevance for the issues Saul and Adrian write about in the links provided in my original post.

Meanwhile, the details of Dick Posner's inner world continue to play prominently on the Web.  Last week, it was Dick's Mom who took center stage.  This week, we learn that Dick is a fan of Mortal Kombat.  And people say Chicago is all substance!  (Me?  I prefer NFL 2k5.)

Politically Correct

A lot of attention is being paid to a recent study, by David Horowitz, of political affiliations of faculty in law schools and schools of journalism. A major finding is that Democratic faculty are far more numerous than Republican faculty. An underlying concern is that if the overwhelming majority of faculty shares a set of political beliefs, teaching and discussion are likely to be skewed.

The concern is an entirely legitimate one, but here's another: As decades of social science research have shown, like-minded people, engaged in discussion with one another, tend to go to extremes. Suppose that one group of people believes that global warming is a serious problem; another thinks that Harriet Miers is unqualified; another believes that aggressive affirmative action policies are desirable; yet another believes that feminism has "gone too far." After the members of these groups talk to each other, they are likely to shift toward a more extreme version of their original views. More technically: Deliberating groups, after deliberation, usually adopt a more extreme position in the same direction as the median of their predeliberation views.

The Myth that Justices Change on the Bench

The Harriet Miers nomination has caused people to start saying, once again, that Supreme Court Justices often change their views once they are on the Court. Usually the claim is that they become more “liberal.” This is a myth. It’s simply not true that people routinely change their views once they’re appointed. It’s a reassuring myth to liberals, and a useful myth to rally the conservatives, but a myth nonetheless.

Last summer, when some of the same things were being said in connection with John Roberts’s nomination, I published an op-ed in the Chicago Tribune on this question. I thought it might be useful to reproduce it below:

From Powell to Miers

Lost in the academic commentary on the nomination of Harriet Miers is the fact that she is apparently a nice and accomplished person.  Academics like to hear that someone is brilliant, though they then proceed to doubt the application of the accolade.  Niceness is not usually offered as a desirable quality in a jurist.  I have now met several persons who knew Harriet Miers at various stages in her life and who have sought to describe her.  No one has said "brilliant," and all have said "nice."  In fact, I am told that while she was not voted most likely to succeed in her high school class, she was deemed to be the nicest.  I think we underestimate how much most (non-academic) observers value that quality when attached to someone who, in their view, is smart enough.  Miers was one of the best students in the schools she attended, and in those places and certainly in that era, being voted "nicest" was probably the most valued compliment her peers could deliver.  We might guess that a good part of her success in the Texas Bar Association and at her law firm can be associated with this perception.  "Nice" in those circumstances might mean that a person is sufficiently non-threatening or otherwise appealing to those in power. 

Is sunlight always the best disinfectant?

Ever since Brandeis turned the neat phrase “sunlight is the best disinfectant; electric light the best policeman” in praise of transparency, it has been virtually accepted wisdom in legal and policy making circles.  But the efficiency and efficacy of “sunlight” is not always so obvious.

Consider two examples raised by new SEC Chair Christopher Cox.  Cox said that two of the SEC’s priorities during his tenure will be requiring better disclosure of executive compensation and enforcing the new SEC registration rule for hedge funds, which is intended to help investors get more disclosure from funds.  Both of these are, at best, a misallocation of the SEC’s scarce resources, and, at worst, flatly wrongheaded.