The University of Chicago Law School Faculty Blog

Conference: "Torture, Law, and War"

On February 29 and March 1, the Law School hosted an extraordinary conference devoted to the topic “Torture, Law, and War: What are the moral and legal boundaries on the use of coercion in interrogation?” The conference, which was sponsored by the Law and Philosophy Workshop with assistance from the Center for Comparative Constitutionalism, showcased the interdisciplinarity for which a Chicago law education is renowned. Participants looked at the central question from the perspective of a wide range of fields, from law and public policy to psychology and history. Speakers included scholars from a dozen universities as well as the Law School's own Adam Samaha, Susan Bandes, Richard McAdams, Martha Nussbaum, Geoffrey Stone, Scott Anderson, and Eric Posner.

The conference keynote speaker was Justice Albie Sachs of the Constitutional Court of South Africa (pictured above). His talk, “Four tales of terrorism,” gave a first-hand account of his own torture by South African security forces and his brush with death when they attempted to assassinate him with a car bomb. It also described the principles behind the rejection of torture and capital punishment by the ANC, both before and after coming to power in South Africa. His talk discussed at some length four instances of terrorism, and the responses that courts and political leaders in South Africa made to them. Through these, he argued for the importance of adhering to the rule of law, including a refusal to resort to capital punishment, and also for the possibility of reconciliation with those who have previously used torture and terrorism against oneself and one’s own side in political struggles.

Audio and video of the keynote address, along with the  other panels of the conference, are now available on the conference web page.

More Epstein on Health Care

Back in March, Professor Epstein published a piece on the blog of the journal Health Affairs entitled "Health Care Disparities: Deregulation First, Redistribution Last." The piece begins so:

There is an immense volume of literature that expresses an abiding concern with the evident and persistent disparities in access to health care. These disparities are typically a function of race, sex, disability, or income. Once disparities have been documented, the usual approach to reform proposes some new form of intervention that is intended to smooth them out, usually by various kinds of forced access or subsidies regime. Just recently, the Robert Wood Johnson Foundation announced, for example, a nonpartisan commission “to identify and recommend practical solutions to eliminate health disparities and improve health for all Americans.” Unfortunately, the chief consequence of these proposals will be, as it has usually been, to make a health system balkier and less responsive than it had been before. The identified disparities doggedly persist in spite of the best efforts to counter them.

Want to read more? Head on over to the Health Affairs blog to read the rest.

Video: Eric Posner Discusses "America's Rocky Relationship With The World"

Last Sunday, a discussion between Eric Posner and Heather Hurlburt (Executive Director at the National Security Network and contributor to Democracy Arsenal)was posted on Bloggingheads.tv. You can watch the video and/or download audio here.

Sunstein Interviewed by "The Glenn and Helen Show"

On Monday, Cass Sunstein appeared on the podcast "The Glenn and Helen Show," discussing libertarian paternalism with host Glenn Reynolds of Instapundit.com. You can listen to the podcast here.

Predicting Crime without the Pre-Cogs?

Crime in Chicago is difficult to predict. Hyde Park is remarkably safer than when I was a student here a decade ago (and in fact is one of the city's safest neighborhoods), but this past week saw a troubling and sad increase in violence in other parts of the city. The Mayor and police attributed some of the increase to the warm weather, but policy makers and citizens seemed surprised at the spike, which goes against national and regional trends. Predicting when crime will occur and the impact that different policing and punishment policies will have on crime is a tricky business. So how are policy makers supposed to decide how many resources to deploy, where to deploy them, and what the impact of, say, a moratorium on the death penalty (as we had here in Illinois recently) will have on crime?

Feeding Disorder

Typepad is currently experiencing issues with its feed production; those who subscribe to the blog via feed readers may not be able to read new posts. We are told that Typepad is aware of the problem and is working on it. We'll let you know when the issue is resolved.

UPDATE, 1:52pm: It appears that Typepad feeds should now be functioning normally. Thanks for your patience.

Jonathan Masur: "Hedonic Adaptation and the Settlement of Civil Lawsuits"

Assistant Professor of Law Jonathan Masur (along with coauthors Christopher Buccafusco and John Bronsteen) recently posted a paper called "Hedonic Adaptation and the Settlement of Civil Lawsuits" to SSRN (the paper will also be published in an upcoming volume of the Columbia Law Review). The abstract is below and the full paper can be downloaded here.

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury - even if that injury is permanent - and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury - will make her whole, in the typical parlance of tort damages - will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase - perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before trial.

Audio/Video: Levmore on "Climate Change and the Battle of the Generations"

Why have we taken so few precautions in the face of threatening climate change? In a February Chicago's Best Ideas talk entitled "Climate Change and the Battle of the Generations" Dean Saul Levmore focused on the difficulty of dealing with a long-off threat in our political system.

The question, he says, is how voters and their politicians can be encouraged to care about problems that can be deferred for consideration by a different electorate or set of taxpayers – but at much higher cost. We know that we should solve most long term problems sooner rather than later, but there are pressures that put off painful solutions. Dean Levmore draws on what we know about “median voters” and median citizens in order to hazard guesses about the coming battle among generations. In this “battle,” young voters will grow increasingly concerned about what is likely to occur as they age – but these voters do not yet have sufficient political power. In turn, arrangements among countries will be seen to depend in part on the disparate age profiles of countries. The topic, in other words, is global warming and the public choice problem of intergenerational bargaining.

Unfortunately, technical difficulties are preventing us from embedding the video in this blog post, but you can download and/or view a Quicktime (.mov) file. If video isn't your thing, you can download/listen to an .mp3 file.

Audio/Video: Richard Epstein Debates Whether Health Care is a Right

On April 9 the Miller Center of Public Affairs at the University of Virgina held an event in their National Discussion and Debate Series at Boston's historic Faneuil Hall. Four participants, including our own Richard Epstein, examined the resolution: "Americans have a fundamental right to health care, and it is the obligation of government to secure that right."

Audio, video, and a transcript of the debate are now available from the Miller Center's website.

The other participants were: JudyAnn Bigby, MD (Secretary of Health and Human Services for the Commonwealth of Massachusetts), Regina Herzlinger (Professor of Business Administration at Harvard Business School), and Dick Armey (Chairman of FreedomWorks and former House Majority Leader).The debate was moderated by Susan Dentzer, Health Correspondent for PBS's NewsHour with Jim Lehrer.

Cass Sunstein's Op-Eds on Libertarian Paternalism

Along with the Graduate School of Business' Richard Thaler, his co-author for the book Nudge: Improving Decisions About Health, Wealth, and Happiness, Cass Sunstein recently published two op-eds touching on the topic of that book. The first, in the April 2nd Los Angeles Times, gives a broad overview of the idea of libertarian paternalism that Sunstein and Thaler advance in their book; the other, in the April 6 Chicago Tribune, focuses on how libertarian paternalism might be applied to the problem of climate change. Since Cass' ideas about this topic have come up frequently on this blog (see here, here, here, and most recently here), we thought it might be interesting to let the readers of the Faculty Blog chime in on these pieces.

Edited to Add: Cass and his co-author, Richard Thaler, have a blog on Nudge-related topics that those interested in this topic might enjoy.