The University of Chicago Law School Faculty Blog

McAdams on "Reforming Entrapment Doctrine in United States v. Hollingsworth"

Should a person willing to offend be able to raise an entrapment defense because he is not actually capable of offending? In a paper recently added to SSRN (see the abstract below), Professor McAdams examines this issue decided a few years ago in a closely divided en banc opinion by the Seventh Circuit, in which Chief Judge Posner wrote the majority opinion deciding in favor of the defendants and Judge Easterbrook wrote one of the dissents.

Reforming Entrapment Doctrine in United States v. Hollingsworth

RICHARD H. MCADAMS
University of Chicago Law School
University of Chicago Law Review, Vol. 74, 2007

Abstract:    
This short essay, written for a symposium commemorating Richard Posner's twenty-fifth year as a judge, examines Judge Posner's majority opinion for a closely divided en banc decision on the federal entrapment defense. The cases considers a fundamental issue in the meaning of the element of predisposition. Judge Posner crafts a boldly innovative reading of the Supreme Court precedent on the topic, introducing the element of position or readiness to predisposition. I claim the result, properly understood, is to rationalize the doctrine of entrapment.

October H2H: LoPucki v. Baird

Thanks to Glenn Reynolds and Cass Sunstein for their contributions to our September edition of the Head to Head debate -- we hope discussion on the very interesting issues they raised will continue on these pages.

On Monday, we'll begin the October H2H.  Lynn LoPucki, the Security Pacific Bank Professor of Law at UCLA Law School and  current visitor at  Washington University Law, will discuss his recent paper Bankruptcy  Fire Sales with our Douglas Baird. This promises to be a lively  consideration of key fundamental questions in bankruptcy. In this paper  co-authored with Joseph Doherty of UCLA Law, Lynn challenges some recent  influential work on bankruptcy (in particular, Douglas’s 2002 paper with 1985  Chicago Law grad and now-University of Southern California Dean Bob Rasmussen). Read  the paper over the weekend and show up Monday ready to talk.

Thoughts on "Rxs for the Blogosphere"

I'm okay with all the initiatives set out below.  I'm not so convinced, though, that they'll make a big difference.  I do the things you describe -- my blogroll is nothing if not diverse -- and I actually decided, in the runup to the 2004 Presidential election, to tone down my language from its never-very-hot levels, but if it made a difference elsewhere in the blogosphere it wasn't that big a difference.  It just got me accused of "lacking fire."  (My response -- you want fire from a law professor?  And one who teaches Administrative Law?)

But there's an upside.  Blogging is very intense and consuming, as this description of blogger burnout explains:

"Good bloggers work like dogs," says Michael Parsons, editor of the tech site CNet.co.uk. "You can't expect readers to show up unless you show up. And the Internet never closes. … Every successful blogger I've come across is the same. Eat, sleep, and drink the work. No time out; no holidays."

That's not a recipe for healthy living, especially if you're working a day job that's not paying you to blog.

Most bloggers burn out pretty fast, and getting heated up makes burnout happen faster, I suspect.  So perhaps as the blogosphere matures (that is, gets older and tireder) the flames of passion will cool.

Or maybe not.  As for encouraging diversity, your ideas are all good ones, but I wonder if we shouldn't ask the tech-folks to think about what they could do, too.  Things like Memeorandum and Technorati have already done a lot to ensure that people get exposed to different ideas (and even Google News and Drudge do that, to a degree).  But I suspect that these are just the beginning, and that plenty of new technologies might facilitate communication across ideological lines.

There's also email, an older technology that we ought to make more use of.  Bloggers will post about each other, but many are shy about emailing.  But there are lots of places where people have common ground even if they differ politically in other ways.  I exchange emails all the time with the Micah Sifry, Zephyr Teachout, Bill Allison and the Sunlight Foundation, though most people would consider them to my left; likewise Paul Kiel at TPM Muckraker.  But we all agree on some important issues -- like trying to rein in Congressional earmark excesses, and I actually just like them as people.  Jeralyn Merritt of TalkLeft and I agree about a lot of law enforcement and civil liberties issues.  Adam Bonin and Darksyde of DailyKos have worked with me on things.  And I even guest-blogged at the Service Employees International Union's "Since Sliced Bread" ideas site.  You get more done if you're able to do stuff like that, and you're more able to cooperate when you don't call people names too much, or too loudly.  (Some interests might prefer to keep us more angry, and hence less able to cooperate, but why should we go along with that?)

What's more, when you cooperate, and email back and forth, you're more likely to give people the benefit of the doubt, or at least treat them with some courtesy, even on issues where you bitterly disagree.

Nobody's perfect, of course, and all of us in the blogosphere -- even the ones who "lack fire"  -- can throw an elbow now and then.  But I think that person-to-person interaction helps; it takes away some of the Internet disinhibition I mentioned before.  As the blogosphere matures, we may even start going to conventions -- I'm going to the Blog World Expo in Las Vegas in November myself -- and more of us will know each other face to face.  That may help, too.

Anyway, those are some additional suggestions of mine, and I hope that readers will weigh in in the comments, and that tech-types will take up my suggestion and bring us some shiny new toys.  I like shiny new toys.

Columbia, MoveOn.org, and General "Betray Us"

In a recent post, I argued that Columbia University did nothing "wrong" in inviting Mahmoud Ahmadinejad to speak. To the contrary, its invitation to this allegedly "cruel and petty dictator" was well within Columbia's fundamental mission as a university, which is not to "endorse" particular ideas as "right" or "wrong," but to promote a robust and lively and sometimes controversial exchange of views in order to promote the ultimate goal of education.

In this post, I want to draw a subtle but perhaps illuminating connection between the response of Columbia to its own decision to invite Mr. Ahmadinejad to campus and the Senate's response to the recent MoveOn.org ad in the New York Times attacking General Petraeus.

Rx for the Blogosphere?

Thanks Glenn for that question. Let me begin by discussing the role of government, and then turn to the private sector.

In short, government should impose no mandates on anyone. As you note, Republic.com argued that government might consider certain responses, intended to promote exposure to diverse positions. Fortunately, the discussion was tentative and didn't endorse any of those responses. Unfortunately, those responses would be unjustifiably intrusive, a bit silly, and even unconstitutional. For that reason, I'll omit the details, thank skeptical readers for their convincing objectons to what I suggested, and confirm what you say, which is that Republic.com 2.0 rejects government mandates (and says that they would be unconstitutional).

Any responses should be private. By way of introduction, let's recall a really impressive moment from the most recent election: Senator Rick Santorum's concession speech. Santorum began by praising Bob Casey, saying that he was a fine man and that he would do a fine job for Pennsylvania. Then he specifically asked his supporters to give a round of applause to Casey. Here's the best part: When the applause was tepid, Santorum added, firmly and spontaneously, "Come on, give it up, give him a round of applause!" There was real grace, and charity, in what Santorum did.

For the blogosphere, here are some small ideas. If you're a liberal blogger, you might include some good conservative blogs in your blogroll. If you're a conservative blogger, you might include some good liberal blogs in your blogroll. It might make sense for bloggers to develop an informal norm of reciprocity. If you have a clear ideological position, and find yourself linking only to people who already agree with you, it might be worthwhile to include a few links to people who don't agree with you -- emphasizing that they might be right on a particular question, or at least that their view is reasonable and worth considering.

Orin Kerr, at the Volokh Conspiracy, is a terrific blogger, in part because he seems to me a model on this count. His own views are hard to characterize, but he avoids contempt, and better still, he tries to make the best, rather than the worst, of opposing positions. He doesn't attack people's motivations; he assumes that people who disagree with him are acting in good faith (and that they are unlikely to be making obvious errors, and haven't lost their senses). And with all this, he can be quite funny.

Of course some positions are unreasonable; no one needs to link to those who argue that the attacks of 9/11 were an American conspiracy, or that slavery was, and is, very good. But our topic has been the division between Red States and Blue States, or conservatives and liberals, and it would be pretty amazing if it turned out that one or another side has a monopoly on reasonableness. (Actually it would be amazing if it turned out that political life is sensibly understood in terms of two "sides.") For readers, knowledge of group polarization, and its effects, should be able to provide a degree of inoculation.

We've been discussing some of the risks, but much of your work has emphasized the amazing potential of the blogosphere to aggregate dispersed information, in a way that is likely to produce a lot more knowledge than a world dominated by the mass media. (Cf. Hayek's critique of socialist planning as compared to the price system.) You're right to emphasize that potential, which is only beginning to be realized; it's a key point when considering the state of the blogosphere.

Ahmadinejad and Columbia University

Why all the fuss about Iranian President Mahmoud Ahmadinejad’s speech at Columbia University? Critics of Columbia’s decision to invite Mr. Ahmadinejad to speak maintain that, because he is a “cruel and petty dictator,” in the words of Columbia President Lee Bollinger, Columbia should not have invited him to speak. In their view, a great American university should not lend its name and prestige to a man who denies the Holocaust, threatens to destroy Israel, promotes terrorism, and routinely violates human rights. Columbia’s critics argue that in providing Mr. Ahmadinejad a forum, Columbia implicitly dignified his views and betrayed its own values.

It would be difficult to be more wrong. A fundamental mission of a university is to educate. A university does this not by taking positions on political, social, moral, economic, medical, or international issues, but by creating an environment in which all perspectives on all issues are open to robust and lively debate.  The central responsibility of a university is not to decide who is right about the war in Iraq or the moral legitimacy of terrorism or the meaning of human rights, but to create and nurture an intellectual environment in which faculty, students, staff, alumni and others have the complete freedom to explore such questions without constraint or intimidation.

Pollyannaish me

Okay, maybe I do live in a smiley-face world.   But though I think we agree that there are important dynamics encouraging more division and more incivility -- driven, as one commenter suggests, in part by what's called the online disinhibition effect caused by computer distancing, anonymity, and the lack of real-world consequences -- I guess the next question is, "So what?" One might suggest that we need government intervention to make people get along -- and you actually suggested some things along these lines, if I recall correctly, in Republic.com, though you seem to have taken a less mandatory approach in Republic.com v.2.0.  But it's not as if the increased divisions we're talking about exist only on the Internet.  Political divisions seem to have become sharper in general (at least compared to the post-World War II era), and I've certainly seen suggestions that a lot of other divisive trends -- such as the tendency of high-earners to marry other high-earners that is strengthened by the growth of two-career couples -- that tend to magnify rather than minimize economic differences. It's also true that some divisions -- racial ones, for example, and sexual ones -- are considerably less sharp than they used to be.  So I'll propose one possible Pollyannaish explanation:  That people are hardwired to rain scorn on some outgroup, and that we've replaced Jim Crow and pre-Stonewall era gay bashing with people who say nasty things in blog comment sections.  To the extent that this is true, it's probably a good thing, since blog comment sections tend to have very modest impacts on the rest of the world, and are easily avoided by those who dislike them.  Plus, it may be that flame-wars are sufficiently cathartic to make more serious conflict less likely. Is this really the case?  I hope so, but I'm not entirely confident that it's so.  So here's another:  The people shouting about politics are not representative.  The readership of political blogs overall probably doesn't exceed a few million (it's hard to say how many readers overlap multiple blogs).  Of this readership, most are passive, and don't even post comments.  Even fewer blog.  And most of those reading blogs do so as a way of killing a few minutes' time at work.  So the passion level on the screen may not translate into equal levels of passion in real life. But assume I'm wrong, and that the problem is not only real, but actually serious.  What do you suggest that we -- bloggers, blog-readers, the polity at large -- do about it?

Polarization and Polarization Entrepreneurs

Are you too optimistic? Maybe. Let's consider some data, bearing on the question of Red States vs. Blue States.

1. For many years, the United States has been conducting a remarkable natural experiment, involving the random assignment of judges to three-judge panels. Here's one thing we know. On DDD panels (all-Democratic panels), Democratic appointees show VERY liberal voting patterns in ideologically contested cases -- much more liberal than on DDR panels. On RRR panels (all-Republican panels), Republican appointees show VERY conservative voting patterns -- much more conservative than on RRD panels.

One way to think about this is that if you create what might be considered "Red State" federal panels, you'll get much different votes, from "Red State" judges, than on "Red State/Blue State" panels. The same applies to what might be considered "Blue State" federal panels. A disabled person, challenging certain conduct as discrimination, has a much better chance before DDD than before RRR.

For present purposes, here's the kicker: For both individual Ds and individual Rs, the voting patterns are far more moderate on RRD and DRR panels.

2. A few years ago, I was involved in a little experiment in Colorado. Liberals in Boulder were assembled to discuss climate change, affirmative action, and civil unions for same-sex couples. Conservatives in Colorado Springs were assembled to discuss exactly the same issues. The liberals spoke only with the liberals; the conservatives spoke only with the conservatives.

The most important result of the discussion was to make the liberals more liberal and more extreme on all three issues, and to make the conservatives more conservative and more extreme on all three issues. Another result was significantly to decrease diversity among liberals -- and also among conservatives. (Note: I'm speaking here of the difference between people's anonymous predeliberation statements and their anonymous postdeliberation statements.)

In short, deliberation among like-minded people increased extremism at the same time that it squelched diversity of view.

For the blogosphere, the implications are not obscure. The blogosphere has many "Red State" sites and many "Blue State" sites (often created by polarization entrepreneurs). These sites look like RRR or DDD; they are similar to our Colorado experiment. To that extent, the results should be a) greater extremism and b) less internal diversity. A third likely result is greater contempt for those on "the other side."

True, you're right, exposure to competing views can deepen division (especially if we're called names). True, many people read diverse sites and do not live in echo chambers. True, the blogosphere is creating communities of interest that overlap. True, many bloggers lack any kind of simple ideological orientation.

But some helpful empirical evidence has already been compiled, and even at this early stage, one thing seems true: Numerous people are listening only or mostly to people who already agree with them. If you're too optimistic, that's why.

Energy vs. Civility

A diversity-vs.-participation tradeoff?  Well, maybe.  I really like the term "polarization entrepreneurs," but I'm not really sure that the issue is the breadth of deliberation.  In fact, I think that in many cases, interacting with those with whom we disagree can deepen division, rather than bridge gaps.  My own experience is that being called names tends to make me want to dig in my heels and intensify my position, while a more reasonable approach often leaves me more willing to consider alternative views.  I don't think that this characteristic is particularly unusual on my part, as people were observing millennia ago that a mild reply turneth aside wrath, while grievous words stir up anger.  This suggests the possibility that polarization comes not just from people congregating in like-minded groups, but also from the lack of civility, though my own experience suggests that the two phenomena feed on one another:  Nasty language and name-calling tend to encourage people to sort themselves into like-minded groups, partly because nasty language is off-putting and partly because people who expect to receive nasty attacks want a group of like-minded folks who will back them up when that happens.

Mark Penn (I'm reviewing his book for the Post, so it's much on my mind at the moment) notes that the punditocracy is more divided than the populace for this very reason:  "The myth that America is hopelessly 'polarized' gets perpetuated because in Washington D.C. -- where most of the pundits are writing from -- everyone has to choose sides to survive."

So the increased polarization and lack of civility we're seeing in the blogosphere may be an example of amateur pundits imitating the professionals, and sorting themselves into teams for mutual defense the way inmates in prison, or teenagers in junior high, do.  And certain terms of uncivil language become shibboleths, or gang colors:  "Rethuglican," "Leftard," etc.

Some pressures probably incline the blogosphere to carry this to greater lengths:  Newspapers and magazines presumably care at least a little about not narrowing their audience too much -- conservatives who don't like being called "Rethuglicans" are still worth having as readers if they help to sell car ads.  Bloggers don't face such pressure to bring their work under an overarching brand.  And professional pundits meet each other face to face at times, and are always grateful for book-plugs and related logrolling, also things that most bloggers don't deal with. 

Of course, that's not always bad:  You mention in Infotopia that Trent Lott's "genuinely scandalous" statements about the missed opportunity of a Strom Thurmond presidency "were ignored -- except on the blogosphere."  Lott made those remarks in a room full of reporters, whose failure to report them was probably driven in part by personal familiarity -- and perhaps a desire for future access -- two things that bloggers are not similarly inhibited by.

That said, I've noticed a number of cross-blogospheric efforts:  The opposition to FEC regulation of bloggers, or support for the Tripoli Six, for example, produced much cooperation among bloggers of different political persuasion, and I was invited to the YearlyKos conference this year and was sorry I wasn't able to go.  (And we've had a touch of friendly rivalry on environmental goals, too.)

So "polarization entrepreneurs" do try to stir up rivalry, and they often succeed.  But because -- as I mentioned below -- politics are more fragmented than polarized, people can often find things to agree on across the Red/Blue divide.  In fact, some cynics may suspect that the Red/Blue divide is, at least in part, an effort to prevent people from finding things to agree on that might imperil current political coalitions.  Despite the current degree of polarization -- and incivility -- I think that the long-term impact of the blogosphere will be to enable communities of interest that overlap, rather than hugging opposite sides of a chasm.  I also think -- and I've written about it elsewhere -- that there's an upside to the sorting you describe:  Unlike email lists that can be overrun by trolls, the blogosphere tends to route around idiots.  I regard that as a virtue, too.   Am I overoptimistic?

The Great Diversity-Participation Tradeoff

Hi Glenn! You raise a number of good points and questions, and I'd like to approach our large topic by focussing on your last paragraph and especially your last sentence.

My speculation is this: To the extent that people are using the blogosphere to congregate in groups of like-minded types, they are more likely to be politically active. To the extent that people are hearing lots of different points of view, they are more likely to sit on the sidelines. In short, there is, for many people, a tradeoff between a) exposure to diverse views and b) political participation.

Intuition helps explain the possibility of such a tradeoff. Like-minded people, talking only with each other, get more confident and more extreme. (This is the concern of Republic.com 2.0.) If people are living or communicating in echo chambers, there will ultimately be a kind of Babel effect, in which different groups won't quite understand each other. (Cf. the debate over climate change.)

The bad side of all this includes greater extremism, more anger, and less understanding of one's fellow citizens. The good side is that if you are confident and charged up, you're more likely to be active.

So much for intuition. Diana Mutz' superb 2006 book, Hearing the Other Side: Deliberative Versus Participatory Democracy, offers a lot of evidence, and is full of implications for the blogosphere. If you deliberate with a wide range of people, you are less likely to be engaged in politics (apparently because you conclude that different views are reasonable, and it might not be worth spending your time fighting). If you talk with people who agree with you, you are more likely to get involved. (I bet that Mark Penn knows this; I'm sure that Karl Rove does. Cf. the success of conservative and liberal groups on law school campuses.)

On the blogosphere, some people operate as polarization entrepreneurs. They attempt to create enclaves of like-minded types, intensifying their antecedent convictions. (I won't name names.) The Army of Davids includes a lot of people who have been energized by polarization enterpreneurs -- and as a result, their judgments may have been badly distorted. But it is worth emphasizing that the same processes that create the distortions help to fuel the participation.

As Mutz emphasizes, this benefit is puchased at a cost: Those who have been polarized are not likely to be tolerant of others, or even comprehending, and they might well fail to persuade those who tend to disagree with them. My main point is that to the extent that the blogosphere helps to create information cocoons, it does indeed energize people.

There are obvious questions here about the complex role of two virtues: respect and charity. Any thoughts on any of this? Do we have any disagreements thus far?