The University of Chicago Law School Faculty Blog

"Let's Drop the Big One"*

Three-and-a-half years ago, a group of students on campus invited faculty members to write brief essays about the situation in Iraq. I wrote the following, which was included in the collection. I happened across it the other day and thought it might be interesting:

I just watched the President's State of the Union Address, and I'm no closer to agreeing with him now than I was before.  I will concede (at least for the sake of argument) the following: (1) Saddam is an evil man. (2) His people are oppressed. (3) He is more likely than not to have chemical and biological weapons of mass destruction. (4) He has not disarmed and he has not conformed to the demands of the U.N. What follows from these “concessions”?  The easy answer is that we should try very hard to get Saddam either to disarm or to go into exile.  That would be great.  Certainly, the threat of war might achieve one or the other of these goals.  If so, bravo.  It would a triumph for the United States, and for Iraq.  But if not, what then?  Does it follow that we should launch a major military attack? 

Katrina's Anniversary

There seem to be two very different reactions to the year of post-Katrina recovery. Each is pessimistic.  One is to decry the failure of government, or at least of our government, to bring New Orleans back to normalcy.  Under this view, there are collective action problems in the way of private sector activity, and perhaps some moral sense that we ought to move people from tent cities to brand new housing as quickly as possible. Instead we have shaky politics, a great deal of remaining rubble, crime rates that are returning to horrible pre-Katrina levels, racial differences, and no reason to think that the rebuilding will protect against a category 4 or 5 hurricane in the future. President Bush's impending visit to the area is thus analogized to visits to Baghdad; in both places only half the country believes the sweet-talking against the backdrop of despair. The New Orleans situation is conventionally described as reflecting a lack of will on the administration's part.  Despite the talk and the promise of aid, the actual expenditures are said to be lagging. A government that cared would be spending much more.

The Wi-Fi Cell Phone and Built-In Competition

Gary Krakow has a column today on MSNBC raving about a new Nokia smartphone. I confess that I do not find cell phones interesting, I guess because I have persuaded myself that, notwithstanding the advertising, a cell phone is just a cell phone and it doesn’t somehow define my worth as a human being. But I am very interested in product feature sets and interested in particular, both professionally and personally, in a cell phone that will toggle intelligently between standard cell phone service and Wi-Fi service.

The Content Wars

An author creates a work, a book perhaps, or a movie or recorded music. The point at which the author grants access to the work and how the author grants access to the work is a critical juncture in the life of content. And how content is created and distributed is changing rapidly. We have said that before, indeed have said that with each revolution in communications. The telegraph was the wonder of its day and radio exploded. Television and cable grew into the dominant media of the late 20th century. Now the emergence of the Internet and a broadband infrastructure have radically decentralized the opportunities to create and distribute content.

This change in distribution technology has powerful consequences for the transition point between private content and taking the content public (publication in a word). For most of the history of content, built-in technological limitations of the media of distribution meant that publication brought with it certain control over content. For a consumer, books, movies and recorded music were hard to copy and even harder to distribute in large numbers. The Internet has changed this. To possess a copy of a work is to have the power of distribution in your hands. For a creator, to sell a single copy of a work is to sell the practical ability to distribute content for free. Sold once, free everywhere.

ACLU v. NSA: An "Independent and Fearless Judiciary"

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.

Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

Book Review: Hovenkamp's The Antitrust Enterprise

Herbert Hovenkamp, the Ben V. & Dorothy Willie Professor of Law and History at The University of Iowa College of Law, is best known to the antitrust bar for his role as the senior surviving author of the multi-volume Antitrust Law treatise originated by Philip Areeda and Donald Turner. The treatise is the standard reference in antitrust and the common-law nature of antitrust in the United States makes the treatise particularly influential. Hovenkamp has also written more broadly and my personal favorite has always been his 1991 business history Enterprise and American Law 1836-1937. Now Hovenkamp has written a new single-volume overview of U.S. antitrust law entitled The Antitrust Enterprise: Principle and Execution.

Of course, the gold standard for this genre is Bork’s The Antitrust Paradox and I push my students towards Posner’s Antitrust Law, a second edition of which was issued in 2001. Like those books when they were published, it is easy to say that any serious antitrust participant should buy and read The Antitrust Enterprise. The book is a highly-readable, integrated perspective on the state of antitrust law in the U.S., written by someone who has both a historian’s sense of time and change and regulatory cycling and an up-to-date knowledge of current doctrinal twists. You should put it on your bookshelf and on one of the low shelves that you can reach easily while sitting at your desk.

Gambling Laws

Cass Sunstein and I have begun thinking about how prediction markets might be regulated.  (Here is a pitch for his new book "Infotopia: How Many Minds Produce Knowledge" (Oxford Press 2006) which can help you get enthusiastic about prediction markets and other uses of aggregated knowledge and wisdom.  Additionally, or if you like the occasional podcast, try my "The Wisdom of Groups and the Use of Experts" from November 2005 and available here.)   On the way there is the interesting question of whether we can distinguish between gambling (and its illegality in most places) and prediction markets, or at least some useful prediction markets. I don't think so, but then I don't think we can really distinguish gambling from many securities markets, but that is not the point of this post. Instead, I'd like to focus on the pervasiveness of "illegal" gambling.

Terrorism and Political Preferences

An interesting branch of psychological research explores how people's decisions and opinions shift when they are reminded of their own mortality. It turns out that when mortality is made salient, significant changes can occur. For example, judges who are reminded of their own mortality are likely to give stiffer sentences to even nonviolent offenders, and once so reminded, ordinary people are more likely to engage in racial stereotyping.

It is natural to wonder how mortality salience is likely to affect political judgments. A paper by Mark Landau and his colleagues, in 30 Personality and Social Psychology Bulletin 1136 (2004), offers some intriguing clues. Here are two key findings. (a) After people are merely reminded of their own mortality (by being asked, for example, to describe "what you think will happen to you as you physically die and once you are physically dead"), they show stronger support for President Bush and his policies in Iraq. (b) After people are reminded of their mortality OR of the 9/11 attacks, they become more favorably disposed toward President Bush and less favorably disposed toward John Kerry.

New Feature

We've added a small new feature to the blog for those who want to get email when there's a new post here. If you'd like to subscribe via email to the blog just scroll down and look on the left side for "Get Email Updates." Pop in your email address and follow the directions. It's simple, and we hope it will increase your enjoyment of our blog (or at least, the efficiency of experiencing that enjoyment)!

50,000 Dogs Slaughtered in China

According to the Associated Press, 50,000 dogs have been massacred in China. The AP reports:

"A county in southwestern China has killed as many as 50,000 dogs in a government-ordered campaign following the deaths of three local people from rabies, official media reported on Tuesday. The five-day massacre in Yunnan province's Mouding county spared only military guard dogs and police canine units, the Shanghai Daily reported, citing local media. Dogs being walked were taken from their owners and beaten to death on the spot, it said. Other killing teams entered villages at night creating noise to get dogs barking, then homing in on their prey."

It would be very hard to justify the massacre of 50,000 dogs based on three human deaths from rabies. In the United States, and many other nations, rabies tests, and not a massacre, would be the likely approach. We could imagine many other approaches that do not involve such a massive killing spree. Whatever the right approach, the slaughter of 50,000 dogs is a terrible tragedy.