The University of Chicago Law School Faculty Blog

Help Us Test Typepad's New Commenting System

Things are quiet here at the Law School as we head into exams; while you wait for the next fascinating post on the Faculty Blog, we hope you'll help us out in a little experiment.

Typepad -- the blogging platform that hosts the Law School's blogs, including this one --  recently launched a beta version of a new commenting system, called Typepad Connect. Unlike the previous commenting system, Typepad Connect allows threaded comments, so that you can respond directly to another commenter. It is also designed to foster a sense of community around a blog, by allowing readers to set up profiles complete with photos, links to readers' own blogs, and so on.

Rather than dive right into using this new system here on the Faculty Blog, we're running a test over on our Electronic Projects Blog. Please take a few moments to try out the commenting system over there and let us know what you think. Is this a feature you'd like to see available here on the Faculty Blog?

Audio/Video: Lee Fennell, "Risk Reversals"

This week's episode of the Faculty Podcast is a recording of Lee Fennell's October 22nd Chicago's Best Ideas lecture on "Risk Reversals" (video has also been added to Bryan Hart's writeup of the talk).

As a refresher, here's Prof. Fennell's description of the talk:

Law often allocates risk, as through tort doctrines. Should people be able to undo or "reverse" such risk allocations by, for example, selling their rights to any claims that may later develop? Scholars have interestingly examined this question, as well as many other innovative ideas for rearranging risk outside of traditional insurance markets. This talk focuses attention on some related but underexplored questions surrounding risk reversibility itself—such as the optimal amount of stickiness in society's default risk allocations, the effects of heterogeneity in risk arrangements, and the implications (cognitive and otherwise) of starting from one risk baseline rather than another.

Truth and Reconciliation

What’s to be done about the lingering questions concerning the arguably unlawful activities of the Bush administration? I refer, for example, to such issues as the use of torture, the creation of secret prisons, the secret detentions of American citizens, and the NSA surveillance program. These actions, and many others, pose serious, still unresolved, questions about the legality and constitutionality of the government’s conduct.

We cannot and should not shut our eyes to these questions. And we should not let ourselves be distracted from these questions by other pressing issues, such as the economic crisis facing the nation. If for no other reason than to set clearer ground rules for the future, we need a full public understanding of the decisions of the Bush administration. We need to know who made them, why they were made, why they were made in secret, whether they were justified, whether they were legal, and whether we can establish better decision making processes for the future.

We need to examine these decisions not so much to exact vengeance – or even justice, but to learn from our experience. This is an important distinction.  It is certainly not unprecedented for public officials to be criminally prosecuted for unlawful conduct. One need only recall Teapot Dome and Watergate to recognize that such prosecutions are perfectly plausible.

Student Blogger - Stephen Stich: “A Framework for the Psychology of Norms”

Last Monday, the Center for Law, Philosophy, and Human Values presented a talk by Stephen Stich related to some of his work on the psychology of norms. The preliminary reading was taken from a book that he co-edited, entitled The Innate Mind: Volume 2: Culture and Cognition. The piece, “A Framework for the Psychology of Norms,” which was co-written with Chandra Sekhar Sripada, is meant to explain how norms work in human psychology. They point out early on that their project is not definition or conceptual analysis, which both would focus on the way the word ‘norm’ is, or should be, used by competent speakers of English. Instead, they aim to pick out a “theoretically interesting natural kind in the social sciences.” In other words, they believe that there exists a category of motivations for human behavior that is meaningfully different from other categories of motivations absent any intentional creation or labeling as such by people. The relevance of such a project to philosophers, and lawyers, is not immediately apparent, so Stich began the meeting with an overview of the philosophical landscape in which the analysis of norms should be placed. The focus in the workshop was on this background material, so that will be my focus here as well.

Student Blogger - Monitoring Class Counsel Performance in Securities Class Actions

Professor Stephen Choi recently presented his paper, Motions for Lead Plaintiff in Securities Class Actions, at the Law and Economics Workshop. This is a forum where academic working papers are presented and discussed among interested faculty and students.

In a recent class action settlement, the class counsel requested attorney's fees that would amount to $500/hr for time worked by temp lawyers, but the temp lawyers were only paid $35/hr by the class counsel—a whopping markup of over 1000% (Forbes "Nice Work If You Can Get It"). The lead plaintiff, the State of Louisiana, acquiesced and said it was the court's job to determine the fees. However, the lead plaintiff is in charge of choosing the class counsel and is in the best position to monitor the lawyers. Professor Choi's paper examines which lead plaintiffs are effective monitors.

Student Blogger - Self-Conception of Detention Discourse in Iraq

The study of crime and punishment in our society generally has a decidedly domestic bent, and perhaps rightly so.  What better way to understand crime—and society's response to it—than by studying the domestic institutions most directly associated with crime and punishment?  To this end, most of this quarter's presentations at the  Crime and Punishment Workshop have focused on domestic issues, be it juvenile delinquency or intuitions on punishment.  In his presentation of a working paper on detention discourse in Iraq, Professor Michael Welch takes a different tack.  Building on the notion that narratives emerging from colonial projects may provide helpful insight into how the West conceives of itself, Prof. Welch studied the official website of Operation Iraqi Freedom, in particular focusing attention on the rationales and technologies behind the large-scale detention of Iraqi civilians.

As an initial matter, the characterization of the American occupation of Iraq as a colonial project is anything but incontrovertible, and indeed, drew disagreement amongst the attendees of the workshop.  Though fundamental to Prof. Welch's working paper (available here), this post leaves it to one side, lest its author get ensnared in an argument having little to do with either crime or punishment.  In any case, insofar as one is willing to accept that studying our conception of American detention practices abroad may provide insight into our incarceration policies at home, the characterization of Iraq as a colonial project (or not) is tangential at best.

As an example of self-conception of detention practices in Iraq, Prof. Welch pointed out the touting of low re-internment rates (that is, the rate at which individuals are again detained after having been previously detained and released) by the military.  This, as was noted by a faculty member, is certainly different than our expressed purpose in detaining individuals in military endeavors of years past, say, Vietnam, where the objective was incapacitation, or even at home, where (most would agree) the focus tends to be punishment rather than rehabilitation.

If there was any agreement amongst those present at the workshop, it was that there were a number of directions that the paper could be taken from its current state.  One faculty member seemed interested in comparison of American propaganda in previous wars to derive an understanding of how our self-conception of detention has changed.  Another was more focused on determining whether there were true believers of the material presented on the site.  A third seemed curious about who prepared the site, and to what end.  Who was the target audience?  Was it working to convince that audience of its viewpoint?

As these various lines of inquiry indicate, this is an interesting topic that will no doubt spur further research.  A little self-awareness never hurt anyone, right?

Thailand's Court resolves crisis--for now

I had just cancelled my flight to Bangkok, where I was due to attend a conference this coming weekend, when I learned that the Constitutional Court had issued a long-awaited decision disbanding the ruling party (the PPP). The decision had been widely anticipated, given the apparent violations of electoral law by the PPP. It assumed greater importance, however, because of the crisis perpetuated by anti-government protestors. With tacit support from the police, military and monarchy, they had occupied Bangkok’s airports, stranding hundreds of thousands of tourists and causing serious economic pain (not to mention the cancellation of my conference!)

There are two points of general interest illustrated by this affair.  First, like many other countries, Thailand has experienced “judicialization” with the courts resolving major political issues. In a forthcoming article available here, I argue that Thailand’s constitutional order is just an extreme case of a general trend toward “post-political” constitutions, reflecting a distrust of politics and a faith that technocratic institutions, like courts, counter-corruption commissions and ombudsmen, can somehow resolve problems in a neutral manner. 

Second, courts seem to respond to signals of public opinion in such circumstances. Had the protests been put down or been less enduring, the Court might have sided with the PPP and found the violations of law de minimis. Some years ago, the Court’s predecessor had essentially taken this approach with regard to the party associated with now-discredited premier Thaksin Shinawatra. This time, the Thai Constitutional Court said it had “no choice” but its decision can also be read as furthering its own institutional interest in remaining relevant in the light of great public pressure. The Court’s prestige has arguably been enhanced by the whole affair. 

As a normative matter, this state of affairs leaves much to be desired. Don’t like the government? Simply organize a large scale protest, bring the government to a halt, and then accuse it of not providing leadership. If the protest is big enough, the courts will have no choice to side with you. The key, of course, is to have enough support that law enforcement takes your side. But technocratic institutions like courts, the military or police, are no substitute for political institutions. I suspect this is not the final round of Thailand’s political crisis, as the government party will emerge again in some reconstituted form.

Faculty Blog Again Named to ABA Journal's Blawg 100

Just when you thought election season was over... the Law School comes campaigning for your vote.

For the second year in a row, the Law School's Faculty Blog has been named to the ABA Journal's Blawg 100. Vying for top honors in the "Professors" category, the Faculty Blog is facing off against 14 other blogs, including Chicago's own Becker-Posner blog. If you enjoy the Faculty Blog, we hope you'll take a moment to click through to the ABA Journal's site and cast your vote.

"New legal blogs are springing up on a daily basis—we now have more than 2,000 in our online directory. Competition for the time and attention of lawyers is getting fiercer," says Edward A. Adams, the Journal’s editor and publisher. "Half the blogs on last year’s inaugural Blawg 100 list didn’t make the cut this year. That’s a testament to the quality of this year’s honorees, and evidence of the increasing amount of valuable information all legal blogs are publishing."

Martha Nussbaum: "A Cloud Over India's Muslims"

(This post was published as an op-ed article in yesterday's Los Angeles Times. You can also read William Kristol's critique of the piece in the New York Times.)

If, as now seems likely, last week's terrible events in Mumbai were the work of Islamic terrorists, that's more bad news for India's minority Muslim population. Never mind that the perpetrators were probably funded from outside India, in connection with the ongoing conflict over Kashmir. The attacks will feed a powerful stereotype of the violent and untrustworthy Muslim, bent on religious conquest, who can never be a good democratic citizen. Such stereotypes already shadow the lives of Indian Muslims, who make up 13.5% of the population.

But it's important to consider Indian terrorism in a broader context.

Terrorism in India is by no means peculiar to Muslims. A string of recent incidents has been linked to Islamic groups, most of these with foreign ties and pertaining to Kashmir. However, the most bloody recent example of terrorism in India was the slaughter of as many as 2,000 Muslim civilians by Hindu right-wing mobs in the state of Gujarat over several months in 2002.