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Thanks to all of our readers for another successful year at the Faculty Blog. Over the course of the year, the blog had its second birthday, added its 500th post, and was the only institution-affiliated faculty blog named to the ABAJournal's "Blawg 100". We look forward to a new year full of more fascinating ideas and engaging debates.
It's some time since we've brought you a podcast (at least, one produced by the Law School), so today we present Drew Days III, former U.S. Solicitor General (under President Clinton) and Assistant Attorney General for Civil Rights (under President Carter). Recorded on April 5, 2007, Days delivered the third address in a series of talks commemorating the 40th Anniversary of Thurgood Marshall's appointment to the Supreme Court. If you like, you can also have a listen to the first and second talks in the series.
Cass Sunstein (with Harvard's Edward L. Glaeser) recently posted a new paper to SSRN, entitled "Extremism and Social Learning." The abstract is below, and the whole paper is available here.
Extremism and Social Learning
EDWARD L. GLAESER
Harvard University - John F. Kennedy School of Government - Department of Economics; Brookings Institution; National Bureau of Economic Research (NBER)
CASS R. SUNSTEIN
University of Chicago - Law School December 2007
U of Chicago Law & Economics, Olin Working Paper No. 375
U of Chicago, Public Law Working Paper No. 193
Abstract:
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon - group polarization - has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others where there are 1) common sources of information; 2) highly unrepresentative group membership; 3) statements that are made to obtain approval; and 4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.
The Bali conference disappointed many people who hoped that delegates would agree to concrete steps for addressing climate change. Instead, delegates agreed to “consider” this and “address” that and to “consider addressing” this and that. It is certainly possible that eventually nations will enter a climate treaty. But in light of Bali, it is worth addressing a taboo subject—that an effective climate treaty is simply not possible.
There are several reasons for doubting that states will be able to agree to a climate treaty that mandates significant limitations on greenhouse gas emissions.
The Manhattan Institute posted the latest of its series of podcasts with Richard Epstein, who was a distinguished visiting scholar there this fall. This one is entitled "The New Antitrust: Reexamining Microsoft and Other Consent Decrees," and is once again introduced by MI's (and Point of Law's) Jim Copland.
So said a delegate from Papua New Guinea to the American delegation during the conference on climate change in Bali. America’s failure to provide leadership with respect to climate change has become a recurrent complaint. But is this criticism just?
Continue reading "Climate Change: “If you are not willing to lead, then get out of the way”" »
One of the features that is most often requested by readers of the Faculty Blog is the ability to browse all the posts by a given author. Unfortunately, this is a relatively complex operation in Typepad, so up until now we've avoided it. Today, however, we'll begin the process of replacing our old "Categories" (see the sidebar) with faculty names, so that you will be able to see all the posts by or about, say, Dean Levmore from the last 2+ years with just a single click. However, the process will be long and tedious -- it will require recategorizing nearly every one of our over 500 posts -- so please bear with us as we roll out this new enhancement.
So gift cards are even more interesting than I first thought. Theft is one problem (more in a minute) and transferablity is another. As readers of newspapers or this blog know, millions of dollars of gift cards go unused. Perhaps $2 million a year for Best Buy alone, and once a card is unused for two years it is, apparently, quite unlikely ever to be used. I had argued that even if we thought of gift cards as generating some deadweight loss (as people bought things they did not much want), and even if we were offended by the wealth transfer to sellers (with discounting through competition unlikely because those who knew they would buy an item would simply buy a discounted gift card just before the intended purchase), we must compare these losses to those infamously created by "regular" gift-giving, where there are all too many unwanted sweaters and chocolates. But when I mentioned this at home, the kids at the table immediately made plans to serve as arbitrageurs, buying up gift cards at a discount and then selling them to people on the verge of making purchases where the gift cards could be used. Simple arbitrage is prevented by the fact that an item bought with a gift card and then returned, generates a gift card credit. Nor can gift cards be used to pay store or credit card bills.
So asks Minderbender. China makes just this argument, arguing that because it has four times the population of the United States, it should be able to emit four times the amount of greenhouse gases. Think of the atmosphere as a sponge that can absorb a limited amount of the world’s carbon. China wants the largest piece of the sponge because it has the largest number of people.
What is wrong with this argument? Initially, consider how this idea, if generalized as a principle of international law, would apply in other contexts. The sea contains various fish stocks. Currently, fish stocks that are located near a country’s coasts are “owned” entirely by that country. The rest of the world has no rights to it. Other fisheries are in the high seas. These stocks are for the most part not regulated: any country can authorize citizens to take them. Also consider mineral deposits in the sea bed under the high seas: these mineral deposits have traditionally been available to any country, though recent efforts have been made to regulate them under the Law of the Sea convention (to which the United States is not yet a party).
If China should have a per capita share of the atmosphere, then presumably it should have a per capita share of the fish stocks and mineral deposits beneath the high seas. We could go farther and ask, Why should any country have exclusive rights to resources in its territorial seas or, for that matter, on its own territory? Oil is oil: it is the same substance whether it exists under the oceans or under land. If China has a per-capita claim to oil under the ocean, why not to oil under the sands of sparsely populated Saudi Arabia? Or, to put this differently, why should China get carbon rights on a per capita basis if it is not willing to share (say) land rights on a per capita basis with (say) the Vietnamese?
The logic leads to a picture of the world as a basket of resources that should be distributed to countries on a per capita basis. Where the countries are actually located—how close they are to particular resources—is morally irrelevant. Landlocked Lesotho should have a share of fisheries, whaleries, mineral deposits in Norway, and the atmospheric carbon sponge. What matters is individuals, not countries, and individuals should have access to global resources on a per-capita basis. Who could object to this?
There are a few problems.
First, the per-capita principle would give governments incentives to expand (or not limit) their population. The bigger the population, the more of the world’s resources the government may claim. It would be better if governments were given incentives to limit their populations rather than expand them.
Second, do we really want the world’s resources divided up so that the biggest countries get the most? Is it relevant that some of the biggest countries have corrupt (Bangladesh), authoritarian (China, Russia), or otherwise less-than-efficient governments (India, Indonesia, Nigeria, Pakistan, Philippines), and therefore are unlikely to get most or even much or even any of the wealth to their people?
Third, the per-capita principle, whatever its attractiveness in the abstract, is in tension with the way that the world is organized and governments actually operate. Governments consider themselves responsible to their populations (or subsets thereof), and not to people living in other countries. Governments sometimes extend aid and resources to people in other countries who are suffering from a natural disaster or entrenched poverty, but never to people in other countries simply by virtue of their number. This leads to the final point.
Fourth, there is nothing ethically attractive about the per-capita principle. To see why, compare the United States (which has a population of 300 million) and Malawi (which has a population of 13 million). The United States has a per capita GDP of $40,000; Malawi’s is about $600. According to the per-capita principle, the United States (and, of course, China) should have greater carbon rights than Malawi, yet the United States (and China) are much richer than Malawi. If we are allocating the costs of greenhouse-gas abatement on an ethical basis, why give preference to states that happen to be big rather than states that are poor?
Visiting Professor of Law Susan Bandes has posted a paper on SSRN entitled "After Innocence: Framing Wrongful Convictions." The abstract is below and you can download the whole paper here.
After Innocence: Framing Wrongful Convictions
SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
Utah Law Review, 2008
Abstract:
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.
I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.
The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.
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