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31 posts from February 2008

February 29, 2008

Announcing the New Student Events Podcast

In recent months, here at the Law School we've seen an increasing number of student organizations start recording their events for online distribution. Faced with an embarassment of riches, we've decided to launch a new podcast dedicated just to student org-sponsored events, which we're calling "Open Minds" (if you've seen the fences around the fountain construction lately, you'll catch the reference). And don't worry -- student events featuring Law School faculty will be added to both podcasts feeds, so you won't miss any of that Chicago audio goodness.

You can subscribe to Open Minds via iTunes or using the podcatcher of your choice.

February 27, 2008

Podcast: Richard Posner and David Lat on "Judges as Public Figures"

Last week, the University of Chicago's chapter of the Federalist Society hosted a panel discussion on "Judges as Public Figures" with Judge Richard Posner and David Lat, author of two popular legal blogs, "Above the Law" and "Underneath Their Robes." David Lat's relationship with Judge Posner began when he was the anonymous author of "Underneath Their Robes," a blog supposedly written by a young and prestige-obsessed female lawyer. Judge Posner was the first to unmask "Article Three Groupie" (the anonymous author's pseudonym) as being male. The discussion was moderated by Professor Lior Strahilevitz, and a recording is available here.

February 22, 2008

Epstein on Two Recent SCOTUS Decisions

Yesterday, at the request of the Federalist Society, Richard Epstein recorded a brief overview of his thoughts on two recent Supreme Court decisions, Riegel v. Medtronic and  Rowe v.New Hampshire. The recording is available here.
 

February 21, 2008

Those Stolen Swiss Paintings - and the Future of "Double Threat" Kidnapping

I fear that kidnapping has improved. It is a crime that has long fascinated those of us, which I think means all of us, who have thought about "perfect crimes." The essential problem facing the kidnapper or extortionist, whether of persons or property, is how to take payment without being traced and apprehended. In movies, the kidnapper makes awful threats and, no doubt, threats by one who has already kidnapped are more credible than those made by evil people with harsh voices who have but threatened a more serious crime. But, in the end, the kidnapper must worry that when he picks up the payment, he will be followed, by one means or another, and then apprehended.

I have long wondered whether the "solution" is in "double threats." The kidnapper might take A and B, and then contact the parent or owner and say "transfer $X to me in the following manner, and then (or before then) I will return A to you; if I am not followed and see that I am safe for Y days, I will then return B to you." This kidnapper is no less credible than the conventional one, because B is otherwise useless to him, and there is the fact that his "reputation" and ability to repeat the crime depends on his freeing B as promised. And the taking, and serial returning, of A and B raises the chance that payment will be made on A. The comparison is to the conventional kidnapper who says "pay me and I will return A, and if you arrest me when I take payment, my confederates will then kidnap or murder B." This is made much more plausible by the possession of B.

Imagine my surprise, or strange sense of intellectual delight, when I read recently of the theft of four well-known painings in Zurich from the E.G. Buehrle Collection. Well-known art is difficult to sell, and the criminal's intent may be to ransom the paintings. Again, how should the criminals arrange to receive payment without being found? Sure enough, although the owners have been silent and said nothing about ransom demands or payments, two or even three of the paintings, but not the most valuable, were soon "found" in an unlocked (!) vehicle within half a kilometer of the vicitimized museum. The newspapers at first reported that the art must have been too big to be carried away undetected. But the more likely story is that the "kidnappers" took A and B, so to speak, and have now returned A. They may or may not return B once they feel that the museum has kept its bargain.

The bad news is that other criminals will learn from this. A hard question is whether this "game" is a stable one. The criminals, or at least a good number of them in the future, must return B, or future victims will not be more likely to pay (and not lead the police to the criminal) to gain the return of A. And yet each criminal has very little incentive to return B. Nor are victims very good at colluding. We might imagine a state making it illegal to pay ransoms, but such a law would be very hard to enforce and it has been tried or thought about very rarely. Still, if the "double threat" crime succeeds, states may need to rethink their tools of combat.

February 20, 2008

Alison LaCroix: "The New Wheel in the Federal Machine"

Assistant Professor of Law Alison LaCroix recently posted to SSRN a paper entitled "The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic." The abstract is below, and the entire paper may be downloaded here.

The years between 1787 and 1802 witnessed a transformation in American federal theory: from the focus on legislative authority that had occupied constitutional thinkers since the colonial period to a new emphasis on jurisdiction and a corresponding institutional preoccupation with courts. This shift is evident in the decades-long debate concerning the nature and scope of the federal judicial power, which saw repeated efforts by jurists and statecrafters to establish the proper jurisdictional arrangement to mediate between the multiple levels of government set forth in the Constitution. The fruits of these struggles to cement the practical and ideological meanings of federalism were the judiciary acts of 1789 and 1801. The two acts have received remarkably disparate treatment from scholars, with the 1789 act heralded as the basis of the federal judicial system and the 1801 act largely regarded as an embarrassment notable only for its role in the partisan conflict surrounding the election of 1800.

Instead of lionizing the 1789 act and attempting to excuse or dismiss the 1801 act, however, I read the two together to offer new insights into these crucial decades. In the 1801 act, Federalists sought to revive the colonial idea of subject-matter jurisdiction by establishing broad federal jurisdiction, including granting arising under jurisdiction to the federal courts and easing the requirements for removal of cases from state to federal court. The election of 1800 and the ensuing repeal of the 1801 act, however, spelled the demise of this idea of jurisdiction and a return to the type of concurrence and overlap among levels of government that had characterized the system set up by the 1789 act. As a chapter in my forthcoming book on the history of the American federal idea, this essay challenges the assumption underlying some modern federalism scholarship that nationalization through the federal judiciary is a relatively new, post-1937 phenomenon. My argument demonstrates the anachronistic nature of such assumptions by highlighting the centrality of the judiciary to early republican debates concerning the scope and extent of national power.


      

February 18, 2008

On the Air: Clinical Professors Stone and Futterman Give Radio Interviews

Clinical Professors of Law Craig Futterman and Randolph Stone were recently featured on Chicago radio stations discussing some of the issues that drive their clinical programs.

Stone (right), who directs the Mandel Legal Aid Clinic's Criminal and Juvenile Justice Project, appeared on WBEZ's 848 program last week to discuss a report by the Illinois Coalition for the Fair Sentencing of Children that argues against sentences of life without parole for juvenile offenders. You can listen to Prof. Stone and the rest of the program on WBEZ's website.

Futterman (left), leads the Mandel Clinic's Civil Rights and Police Accountability Project. He appeared in a report from WGN's "Higher Standards" series, discussing the investigation of abuses by Chicago police officers and the city's recent ordinance that moves the Office of Professional Standards out from under the control of the Police Department itself. You can listen to the report or read a transcript on the WGN Radio website.

February 15, 2008

Campus Shootings

News of another tragic campus shooting, this time at Northern Illinois University, makes me wish I knew more about criminology and crime prediction, and I have been looking for and at literature on the subject. We know that some crimes generate copycat crimes, but it is hard to say in advance which ones do so. If, some years ago, airline hijackings triggered imitations, perhaps because the media coverage was a draw or because it became the implicitly agreed-upon battlefield between terrorist groups and some governments, then that was an important thing to know as soon as possible because precautions could be taken to reduce the incidence of the crime or to reduce the loss of life once underway.

Campus shootings seem different and, in a way, more difficult. Perpetrators (like hijackers) must expect to die in the act, and indeed it may be that most of the plotters would plan simpler suicides except for the fact that they see a way to go out in a blaze of mayhem, which they seem to find appealing. If so, one strategy might be to try and encourage (which is to say substitute towards) more conventional suicides in order to avoid the murdering of innocents. I do not propose that we censor the media, but reports of these killings do provide a great deal of information about the killers, and too little about the victims. I can now recall many details about the Virginia Tech shooter, and also about one post-office shooters, but I regret to say that I remember very little about the victims. We might try to cut down on this coverage of the killer-suicider, and emphasize the victims more, so that would-be plotters might prefer to die in solitude. One might be tempted to say that we ought to hope for more coverage of the lives and death of solitary suicides, if that will encourage substitution away from mass shootings, but that runs the grave risk of encouraging more suicides. Current news coverage seems aimed at the question of whether we can predict who these killers will be. if we can, then of course it is a good idea to share information and contemplate what steps might have been taken to ward them off. But if our best guess, or science, is that prediction is close to impossible, as is my impression from the reading I have done, then we may do much more harm than good by proceeding as if our task is to understand what drove these people to their crimes and deaths. 

Finally, there is the question of straightforward deterrence. If high school and college campus shootings become regular events, we will face the familiar question of gun control versus armed guards or citizenry. Again, I am merely a consumer of that literature, but so long as the perpetrators plan to take their own lives, as they seem to, deterrence is awfully difficult. Campuses and buildings might be secured, as they are in Israel, with bags checked at each entrance. This is a serious cost, and not one we will find many campuses doing unless things get much worse. Moreover, the killings we have experienced are generally committed by persons who would have access to campus because they are students. Large-scale security operations generally wave through most regulars and focus attention on guests. We must hope that our tragedies will be, at worst, intermittent rather than multiplied. This is very sad, and sadder still because while we hope for improvement, there seems to be very little we can do to bring improvement about.

February 14, 2008

Out of Commission

On Monday, the U.S. military announced it had charged Khalid Sheikh Mohammed and five co-conspirators with murder and other crimes in connection with the 9/11 attacks. It further announced that the defendants would be tried by a military commission at the Guantanamo Bay naval base, rather than a regular civilian court, and that they would be eligible for the death penalty. The defendants have committed horrific crimes and will almost certainly lose at trial. Unfortunately, the military commissions will themselves be on trial as much as the al-Qaida six. And in this trial, the United States runs a serious risk of losing, even if it wins.

Continue reading "Out of Commission" »

February 13, 2008

Richard Epstein on Good Fortune and Bad Luck

The January 2008 issue of Theoretical Inquiries in Law contains an article by Richard Epstein entitled "Decentralized Responses to Good Fortune and Bad Luck." The abstract is below, and you can read the PDF here.

Most forms of egalitarian theory impose on government (and through it other people) to redress the inequalities of fortune that result from bad luck. This Article takes issue with the various forms of this large claim, and argues that decentralized forms of assistance are likely in the long run to do better by the very standards by which egalitarians justify their own program. The alleviation of poverty depends in the first instance on increases in wealth that can only come through private innovation and technological advances. These have in fact produced major improvements in overall well-being, with disproportionate advances for the poor. But if one starts with Dworkin’s unsustainable distinction between option and brute luck, or Nussbaum and Sen’s capability theory, then no egalitarian theory can deliver on the promise to level differences in wealth without seriously compromising overall levels of social welfare. By expanding the scope of government regulation, these proposals open the door to selfish political forces whose political clout ensures that ill-conceived programs, such as the Americans with Disabilities Act, frustrate the very goals they hope to achieve. State intervention to redistribute resources should be understood as a last resort for dealing with problems of ill fortune.

February 12, 2008

Video: Eric Posner v. Jack Balkin: "Executive Function Disorder"

Last week, Eric Posner and Yale's Jack Balkin squared off in a video debate at Bloggingheads.tv, discussing whether the Bush Administration respects the rule of law. You can watch the video below, but we also recommend you visit the Bloggingheads page to read the interesting comments that follow.

Some highlights of the discussion [caveat: the end of the discussion was cut off by technical problems]:

  • Has Bush permanently damaged the presidency? (03:46)
  • Jack argues that Bush hasn’t respected rule of law (11:14)
  • Eric argues that legally wrong can be morally correct (04:01)
  • Is Bush against checks and balances, or just really good at them? (04:04)
  • Designing democracy to head off dictatorship (05:54)
  • Was the Iraq War democratically approved? (03:59)