The University of Chicago Law School Faculty Blog

The November 28 hearing

A few comments about the hearing last Monday.

1.  The Iraqi government is pressuring the Iraqi Special tribunal to speed up proceedings.  The press treats this as a case of politics illegitimately attempting to influence the course of justice.  Maybe so, but the opposite inference is equally plausible.  It may be that, given politics in Iraq, the tribunal is proceeding too slowly because the Iraqi judges are afraid of offending foreign opinion or simply because they place too much weight on the technical requirements of their job.  If a constitutional settlement must await the outcome of the trial, then the longer that the trial continues, the more people will die in the insurgency.  And as much as the West loves legal process, the Iraqi public might have trouble understanding why such a simple case should take such a long time to resolve and wonder whether they really want to cast their lot with Western style legalism.

Admitting Error in Sports, Law, & Politics (& Religion)

Here is a minor puzzle.  The National Football League goes out of its way to say that officials erred and ought to have been swayed by video replays in a recent game.  Judges (and here I will limit myself to appellate decisions) reverse previous decisions, though change is usually preceded by fine distinctions and nods to precedent.  Legislators often vote for different tax rates or regulatory schemes, and manage to be proud of their flexibility. But U.S. Presidents and other world leaders (and indeed members of the executive branch quite generally) rarely admit mistakes or say they have changed their minds or approaches.  For extra measure, religious leaders are also inclined to deny that previous pronouncements were mistaken.

I think these opening generalizations require some fine tuning (not to mention evidence), and I plan to provide much stronger and deeper claims in future academic work, but let's accept the generalizations for what they are, and see whether it is puzzling that differently situated decisionmakers, all ostensibly aiming to please similar audiences or do the right thing, should have such different practices with respect to mistakes, or change. In the spirit of blogging, I will try but one explanation here, and it relates to the role of transparency.

Stone On "Perilous Times"

With the Law School moving into finals mode, we'll have few lunchtime speakers over the next month or so. With that in mind, it's time to post some of our archival materials. We'e had audio (and video) clips available on our website for a while, but not always in the same place. So here we shall aggregate.

First up, Geoffrey Stone talking about his award-winning book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. This short interview was part of the Research at Chicago series and is available in both audio and video versions. For instructions, click here.

Women’s Bodies: Violence, Security, Capabilities - Part V

Note: This is the fifth in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Refining the capabilities approach

Conceptually, then, the capabilities approach is well placed to diagnose, analyze, and address the problems of violence against women. That is of course no accident, since in both Sen’s formulation and in my own the approach was developed with women’s capabilities prominently in view and with women’s equality a central goal. Now, however, I would like to argue that there are some further philosophical developments and refinements that the approach requires if it is to address these issues in a perspicuous and helpful way. I see three such developments.

Women’s Bodies: Violence, Security, Capabilities - Part IV

Note: This is the fourth in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Why capabilities?

One might grant all these facts and their importance without being persuaded that there is any need for a capability-based approach in order to analyze them and make recommendations for progress. So, why capabilities? If we compare the capability approach to previously dominant approaches to development, the answer seems obvious. Thinking of development as the increase in Gross National Product per capita not only does not reach these problems, it positively distracts attention from them (see Nussbaum, 2003b). Approaches that conceive of development’s goal as the satisfaction of existing preferences do considerably better, since violence and the fear of violence inflict enormous pain and suffering. But they, too, fall short, for five reasons. First, because they aggregate the diverse elements of a person’s good, they are unable to give separate salience to the issue of violence; nor can they draw sufficient attention to the way in which it affects many diverse and heterogeneous components of a woman’s life. Second, because such approaches also aggregate across persons, they typically do not give enough salience to the special vulnerabilities certain groups and people face because of who they are; the problem of violence against women becomes simply a part of the whole calculus of satisfaction and dissatisfaction. Third, without importing some independent moral factors, preference-based approaches have no way of excluding from the social calculus the very considerable pleasure and profit men have always derived from using women in these ways. The pain suffered by men at the introduction of laws against marital rape, sexual harassment, and date rape is very intense, as debates in many nation show. A true Utilitarian will have to count it (see Nussbaum, 2000, ch. 2). (John Stuart Mill’s [1869] failure even to mention this factor in The Subjection of Women is the clearest sign of his apostasy from Benthamite Utilitarianism, although one rarely mentioned by interpreters.) Fourth, as John Stuart Mill and Amartya Sen have both pointed out, women often exhibit ‘adaptive preferences’, preferences that adjust to their second-class status (Mill, 1869; Sen, 1995; and many other publications). Thus, even if they experience some pain at physical violence, they may not experience the additional pain of thinking that their rights have been violated; and some kinds of violence, sexual harassment for example, may not feel like violence at all to someone who has been thoroughly taught that this is women’s lot. Finally, an approach that takes the goal of development to be satisfaction shortchanges the element of agency that is so crucial in thinking about what violence takes away from women. What is wrong with rape is not just the pain and suffering it inflicts, it is the way in which it puts the whole capacity of practical reason and choice in disarray, requiring, as philosopher Susan Brison has memorably written in her book Aftermath, about her own rape and its consequence, the “remaking of a self” (Brison, 2002).

The Future of Obesity Regulation

Continuing a discussion that's been going on here, Saul Levmore delievered the annual Wilber Katz lecture, entitled "The Future of Obesity Regulation," on November 18, 2005 at the Standard Club in Chicago. Despite the staff's difficulty in choosing what food one serves for a lecture on this topic, the lunch was well attended, and the speech and Q&A are now available for your listening pleasure. The timing of this post should not be taken as a commentary on Thanksgiving's gastronomic traditions. Instructions are here.

Happy Thanksgiving to all our readers. Blogging will be light (or non-existent) for the next few days.

Women’s Bodies: Violence, Security, Capabilities - Part III

Note: This is the third in a series of posts, the whole of which is an article by Martha Nussbaum. The article, entitled "Women’s Bodies: Violence, Security, Capabilities," appeared in the Journal of Human Development (Vol. 6, No. 2, July 2005).  Comments are encouraged on parts or on the whole.

Violence and women’s capabilities
Let us now consider the impact of these varied forms of violence, and the threat of them, on women’s capabilities. Since I have defended a particular list of capabilities as the basis for an account of fundamental human entitlements or rights that should, I argue, be adopted in the constitutions of all nations (Nussbaum, 2000, pp. 78–80), let us look at what violence does to the items on the list. Life is easy enough: many women are murdered in the course of sexual violence. In wartime and communal conflict this happens in large numbers. It has been estimated, for example, that about one-half of the 2000 Muslims murdered in Gujarat, India, were women who were raped and tortured, then set on fire (Nussbaum, 2004a). Similar things have happened recently on a large scale in many nations, including Bosnia, Sierra Leone, Rwanda, and Columbia. Women also lose their lives through violence at the hands of spouses or partners: in the United States in 2000, 1247 women were killed by an intimate partner (Bureau of Justice Statistics, 1993–2001). The transmission of HIV during intercourse with a partner, often without full disclosure and consent, is another form of lethal violence, extremely widespread in Africa. Trafficking and forced prostitution frequently lead to death, often through HIV/AIDS. And of course, sex-selective abortion and infanticide, together with the undernutrition of girls, are major causes of female death around the world. Honor killings and killings in connection with dowry are also still in some places a depressing reality.

Now with Extra Pictures

Picture, actually. c|net, the leading online info source for news and technology, has republished my Nov. 4th post on this blog regarding Amazon's new digital book services ("Buy the Book, Get the Search Service"). The content is the same, so no need to click over, unless you really, really want to see my new official law school picture.

Ghost towns (and New Orleans) and Public Choice

What if it is true that through natural erosion New Orleans is destined to be further below sea level in ninety years?  What if 100-foot levees are eventually required to keep it alive?  How would we decide now not to rebuild the city - if that were a wise choice?

The easiest case to understand from an economic and political perspective is one in which the loss of acreage to the water is not gradual but occurs in one swoop in 90 years.  That is a long time off, and most investments that are profitable now without the threat of the sea (or hurricanes or lakes) will be profitable even if we cut off all revenue streams that are more than 90 years away.  If we know that a place will be a ghost town in 90 years, it might still be worthwhile to invest in it today.  But as the ghost-town (or the need for hugely expensive levees) scenario comes closer, we face the interesting question of whether to invest in order to maintain the investment that is in place.  This is not exactly a sunk-cost fallacy because to abandon a place is to require investment in infrastructure somewhere else in order to move several hundred thousand people (which is to say the number that will be living in the place that must be evacuated or shored up).  There will also be sympathy for the place that can be saved, as well as the culture and history contained there.  And the taxpayers who will likely be called on to shore up the place with yet larger and larger levees will be dispersed and poorly organized to combat the claim of the organized interests who will need saving.

Stay the Hand of Vengeance?

The Nuremberg trial of major war criminals began sixty years ago yesterday, and so quotations of Robert Jackson’s famous opening statement are obligatory.

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

It must be remembered that the tribunal was charged with enforcing the London Charter, which had been created by the victors fifteen months earlier.  The victors had had to decide what to do about Germany.  One seriously considered proposal was to convert it to an agrarian republic.  Another possibility was to disarm it, demand reparations, and otherwise let it go about its business.  Or one could choose any point in between.  The eventual decision, embodied partly in the London Charter, represented a midpoint.  One could not shoot or starve everyone in Germany; that would just create a never-ending administrative hassle for the rest of the world, a Sudan or Afghanistan in the heart of Europe.  Nor could one let Germany go about its business, though that was the usual postwar practice during the preceding century.  Germany remained too dangerous and vast populations cried for vengeance.  The midpoint solution avoided two dangers – the danger of a united, powerful, and resentful Germany (as existed after World War I) and the danger of anarchy that would spill across borders.