The University of Chicago Law School Faculty Blog

Seventh Circuit Adds Insult to Injury in Teen Sex Tape Case

The Seventh Circuit Court of Appeals, based here in Chicago, has just issued a frustrating opinion in a privacy case, and compounded that opinion with an egregious administrative error that itself invaded the privacy of a young woman.  In Doe v. Smith, the court considered an appeal by the plaintiff, who was a sixteen year old girl when she engaged in sexual intercourse with Jason Smith. According to Doe's complaint, Smith surreptitiously recorded their sexual encounter using a hidden video camera and then emailed copies of the tape to buddies at his high school. One of these friends then allegedly posted a copy of the video on the Internet. Doe sued Smith for invasion of privacy and violations of the federal wiretap act.  The court ruled, quite plausibly, that the district court erred in dismissing the plaintiff's federal cause of action under the wiretap act.  The court followed this holding up with a remand instruction that is, in my view, extremely unfortunate and threatens to undercut legal privacy protections substantially.  Scrutinizing the caption of the case, the court wondered whether the plaintiff should be allowed to proceed as a Jane Doe. 

Shameful Accusations

In recent days, President Bush and Vice President Cheney have attacked their critics as "reckless," "shameless," and "irresponsible." They have accused United States senators and others who have criticized the administration for manipulating the presentation of intelligence data in order to justify our invasion of Iraq with nothing short of lying.This smacks of the same sort of presidential defensiveness and demagoguery that became so familiar to the American people during the Vietnam War under President Richard Nixon and Vice President Spiro Agnew. Such accusations are not only dishonest, but dangerous to democratic values.

When the Bush administration assumed office in 2001, many of its most powerful voices, including Cheney, Rumsfeld, Pearle, and Wolfowitz, were deeply committed to the neo-con position that the United States must oust Saddam Hussein in order to establish stability in the Middle East. Whatever the merits of that position, even its most dedicated adherents understood that the administration could never persuade the American people to invade Iraq for that reason, and they also understood that they could never persuade the American people to invade Iraq because Saddam Hussein was a brutal dictator. The United States does not invade other sovereign nations for such reasons, and certainly not without the full support and endorsement of the United Nations.

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

Note: This is the second 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 against women: the data

One thing we know for sure about any data on violence against women is that they are inaccurate, since one of the most notorious effects of such violence is to produce a reluctance on the part of women to report such crimes, and in many cases even to perceive what has occurred as crime, rather than as woman’s unpleasant fate. With that starting point held firmly in mind, we can mention a very small number of the data that have by now been gathered. The Human Development Report 2000 finds that between 10% and 47% of women (in nine countries studied) report being physically assaulted by an intimate partner (United Nations Development Programme, 2000, p. 36). A total 500 000 women a year are trafficked out of Eastern and Central Europe; in Asia around 250 000 people, mostly women and children, are trafficked every year. Between 85 and 115 million girls and women have undergone some form of female genital mutilation, and approximately two million more young girls undergo it. In Pakistan alone, the Human Rights Commission reported more than 1000 honor killings of women in a single year. Data on rape in the Human Development Report 2000 are obviously inadequate: most nations do not report any figures, and the figures that are reported are so low, and so capriciously varying, as to make them altogether unbelievable. (It thus seems highly unlikely that there are almost three times as many rapes in Canada as in the United States; that rape is four times more common in Estonia than in the United States; that Canada has 90 times more rapes per unit of population than Japan and 80 times as many as Italy; that Estonia has the highest rape ratio in the world by a factor of almost two to one over the runner-up, Canada; and so forth.)

Foreign Law and Constitutional Interpretation

Attorney General Alberto Gonzales addressed the Law School community on Wednesday, November 9, 2005. His topic was "Foreign Law and Constitutional Interpretation." Listen to the speech and his Q&A here and/or read his remarks here. If you need instructions, you can find them here.

Google Print: Hypos for My Copyright Class

In my last post on Google Print—since rechristened Google Book Search—I raised a particular law and economics concern about the project (see Fair Use and Inefficient Bundling). That post generated a flurry of comments—thanks!—and now I want to try a different approach to assessing the project: the world of the law school hypothetical. Try two different versions of what Google Book Search is doing to evaluate the actual project.

Google Index: In truth, for most books, the index at the back of the book leaves much to be desired—academic speak for the average index stinks. In the rush to the finish the book, the author or the publisher slaps a list of terms and page numbers together, and voila, the index is done. Larry and Sergey know this, so they announce the Google Index project. Google will scour the world for the best indexers, promise them as much free chicken-apple sausage as they can eat, and give them each a stack of books. Read the book, create an index, and put the index online. (We could also imagine a wiki-index project if you prefer less centralization.)

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

Note: This is the first 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.

Women’s Bodies: Violence, Security, Capabilities

by Martha C. Nussbaum

Violence and the threat of violence

No woman in the world is secure against violence. Throughout the world, women’s bodies are vulnerable to a range of violent assaults that include domestic violence, rape within marriage, rape by acquaintances or dates, rape by strangers, rape in wars and communal conflicts, honor killing, trafficking and forced prostitution, child sexual abuse, female infanticide, female genital mutilation, and sex-selective abortion. Other practices that are not as obviously violent also contribute to the atmosphere of threat in which all women live the entirety of their lives: sexual harassment, stalking, threats of violence, deprivation of bodily liberty, the undernutrition of girls. The United Nations Declaration on the Elimination of Violence against Women (1994) defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Consequently, many apparently nonviolent practices count as forms of violence — and they should so count, because they have the same crippling effects on women’s capabilities as actual bodily violence.

Originalism and the Federalist Society

On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but there was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

Chicago’s Policy Initiative on Foster Care

Emily Buss delivered an interesting entry into the Chicago's Best Ideas Series on November 10, 2005. The talk was entitled "Turning Best Ideas into Practice, Chicago’s Policy Initiative on Foster Care." The Law School has several projects known as Policy Initiatives, where the collective work and experience of faculty, students, and alumni are being focused on particular problems with the intent of providing potential solutions. Emily Buss is heading one such project on what happens to children who "age out" of the foster care system. In this talk, Emily discussed not only the specifics of the project, but also the inherent difficulties of doing this kind of empirical work. You can listen to the lecture and discussion here.

As always, instructions for listening and subscribing, should you need them, are available here. The blurb Emily used for the publicity for her talk is below the fold.

MobBlog Reminder

I am running my online workshop group blog this week, where we are discussing Julie Cohen’s forthcoming paper “The Place of the User in Copyright Law.”

 

Is Bush a War Criminal?

One sometimes hears the argument that the Saddam Hussein trial is unfair because Bush is not also being tried for war crimes.  The argument has two steps: (1) Bush is a war criminal, or at least should be indicted and tried for war crimes; and (2) Saddam’s trial cannot be fair unless Bush is also tried.

There is something like a system of international criminal law, most clearly embodied in the Rome Statute for the International Criminal Court, which, however, does not apply to the United States because the U.S. is not a signatory.  International criminal law has also been applied against leaders and officials of the successor states of Yugoslavia, against some of the people responsible for the genocide in Rwanda, and in a handful of other cases, but at the instigation of the UN security council, of which the U.S. is a veto wielding member.  Many people also think that international criminal law is binding by force of custom.  I will assume that this is true for the sake of argument, though I have doubts about  whether the scope of customary international criminal law, so understood, would cover much of significance.