The University of Chicago Law School Faculty Blog

Student Blogger - Explaining "Insider Knowledge" in False Confessions

Suppose it is 1980, and you have been arrested for a murder you did not commit. These are the bad old days—a time without any of the essentials that today seem indispensable to daily life. CrackBerries, Facebook, and most importantly for you, DNA testing, are all technologies a decade or more away. What do you do? Though responses may vary, surely the answer to that question cannot be confess to the crime. Why would anyone ever do something so patently absurd? If data on post-conviction exoneration through DNA testing is to be believed, however, that is exactly what a nontrivial number of criminal defendants seem to have done—confess to a crime they did not commit, and often quite convincingly. This perplexing phenomenon was the subject of last week's Crime and Punishment Workshop, when Professor Brandon Garrett of the University of Virginia Law School presented a draft of his new paper, The Substance of False Confessions.

To many among the (unwashed) masses, the problem of criminal defendants falsely confessing to crimes for which they are not guilty may seem insignificant. What innocent person would ever confess to a violent crime such as murder or rape, and even if they did, how would they do so credibly? Among scholars, however, post-conviction exoneration has increased awareness of this problem, and prompted psychological research that examines circumstances in which suspects may come to internalize facts about a crime, and even believe they did something that, in reality, they did not. This goes to explaining why someone might confess falsely, but not how they do so convincingly.

Conference: "Speech, Privacy, and the Internet: The University and Beyond"

Late last year, Ernst Freund Distinguished Service Professor of Law and Ethics Martha Nussbaum and Harry Kalven Visiting Professor of Law Cass Sunstein organized a conference devoted to an interdisciplinary discussion of the legal and ethical issues posed by the new ways in which privacy can be invaded. "Speech, Privacy, and the Internet: The University and Beyond" brought together leading scholars to discuss these topics. As the conference webpage states,

The current rise in invasive personal gossip, much of it anonymous and much of it directed at students, often by other students, creates an atmosphere that threatens to disrupt the climate of instruction.  On the other hand, restrictions on such internet sites raise delicate free speech issues. What challenges do these developments raise on campus, and what direction should universities take to meet these challenges?

Video of the conference keynote address, by former Chicago professor Lawrence Lessig, is embedded after the jump. The video also includes intros from Profs. Nussbaum and Sunstein and Provost Thomas Rosenbaum. You can read the University News Office story about the conference here. Audio downloads, abstracts, and selected papers are available here.

Reading the Quran in Kuala Lumpur

Reading the Quran in Kuala Lumpur may ultimately prove much more revolutionary than reading Lolita in Tehran.

Two decades ago, a small group of women of letters in Kuala Lumpur—journalists, lawyers, academics—grew frustrated by the rise of political Islam here and their inability to challenge it. Regressive laws began curtailing the rights of Malaysian women, and yet women were told they could not question the laws because they were “Islamic,” and thus indisputable.

Undeterred, the women decided to read the Quran for themselves. Fortuitously, the African American theologian Dr. Amina Wadud had just arrived to take up her first teaching job at the International Islamic University in Kuala Lumpur. Wadud was fresh from completing her dissertation on a feminist interpretation of the Quran. The women began meeting weekly, with Wadud leading the Quranic study group.

Hugo Chavez and the Rule of Law

Hugo Chavez goes to the polls in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez’s success seems likely because he has learned to manipulate the rule of law in his favor.

Chavez’ power grab, pursued through perfectly legal channels, exposes the Achilles’ heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.

Faculty Podcast Double Header: Nussbuam and Wood, Epstein

This week's edition of the Faculty Podcast is a double header of two recent Chicago's Best Ideas talks: Judge Diane Wood and Martha Nussbaum February 2nd discussion "Constitutions and Capabilities," in which the pair discuss practical implications for judges of Prof. Nussbaum's capabilities approach; and Richard Epstein's "The Coming Meltdown in Labor Relations," in which he discusses the Employee Free Choice Act, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act.

You can read Bryan Hart's summary of the Nussbaum/Wood talk here, and download the audio here; Bryan's write-up of the Epstein event is here, and the audio is here.

You can subscribe to the podcast via iTunes or with its RSS feed.

Student Blogger - Do Private Companies Care About Corporate Law?

Professors Jens Dammann and Matthias Schündeln on incorporation choices of privately held corporations

Corporate law varies between states in the US. Some people think this is great, in that it leads to competition for the most efficient corporate laws. Other people think this is bad, in that it leads to competition to create laws that help management at the expense of shareholders. In other words, some see a potential for a "race to the top", and others for a "race to the bottom." The question of which model is (more) correct has inspired a lot of analysis but, so far, no definitive conclusions.

This debate requires, however, that the variations in corporate law among states actually make a difference to companies. If firms don't really care, there isn't much of a "race" at all. For publicly traded companies, it is clear that these variations do matter. It is well known that many of them choose to incorporate somewhere other than their primary place of business -  above all in Delaware, which is viewed as having favorable substantive law and high-quality courts. It has long been assumed, on the contrary, that private corporations (or, slightly more broadly, closely held corporations) nearly always incorporate in their home state - that for them, there really is no "race". Is this right? The answer matters - private companies contribute more than half of corporate output nationwide.

As it turns out, nobody seems to have challenged this assumption empirically. In a forthcoming paper "The Incorporation Choices of Privately Held Corporations", presented at this week's Works in Progress (WiP) talk, Professors Jens Dammann (visiting Chicago from the University of Texas School of Law) and Matthias Schündeln (Harvard) analyze the issue.

Their paper shows two important things: first, the vast majority - about 93% -  of private corporations do incorporate in their primary place of business. This confirms the existing intuition, as far as it goes. Their second observation from the data is that things get more complicated as firms get larger. The bigger a private company is, the more likely it is to incorporate out-of-state, and the biggest private firms behave something like the way public companies do - they incorporate out of state at high rates, and the vast majority of those who do so incorporate in Delaware. What's going on here?

Student Blogger - Vacant Offices in the Administrative State

President Obama received a lot of praise in November and December for how quickly he named his Cabinet and other important political appointees. If previous trends hold, however, it could be late Summer or Fall before many of the 1100 political appointees throughout the executive branch are in place. For example, it took President Clinton only an average of 5 days after assuming office to appoint and confirm his initial Cabinet secretaries but  250 days on average to appoint and confirm his administration’s initial assistant secretaries; appointments by President Reagan and both Presidents Bush follow a similar trend.

These numbers come from an early working paper Professor Anne Joseph O’Connell of Berkeley Law School (Boalt Hall) presented at the Law & Politics Workshop this past Tuesday. Her paper collected data on the cycle of political appointments and political vacancies in the Carter, Reagan, George H.W. Bush, Clinton, and George W. Bush administrations. The most surprising conclusion of the paper is that politically appointed executive agency positions were vacant (or filled by acting officials), on average, 25 percent of the time during these administrations. This includes extended vacancies in fairly important posts; the median vacancy period for the head of OLC is 230 days for example.

Audio/Video: Fault in Contract Law

In September, Frank and Bernice J. Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat organized a conference intended to reevaluate the role of fault in contract law. Speakers included Chicago faculty Saul Levmore, Eric Posner, Richard Epstein and Judge Richard Posner, along with experts in contract law from around the world. Subscribers to our Faculty Podcast may have already heard Judge Posner's "Let Us Never Blame a Contract Breaker," and audio and video of the entire conference is now available on the conference website. You may also watch Professor Ben-Shahar's introduction to the conference in the video embedded after the jump.

Israeli Election: How Winning Can Backfire

This week’s Israel’s general election produced a small surprise. The ruling centrist party Kadima edged the right wing Likud party by a small margin, despite polls predicting a Likud win. Under Israeli constitutional law, it is usually the largest party that gets a first crack at building a coalition and holding the Prime Minister position. Kadima therefore claims that its leader Tsipi Livni should be granted the first opportunity to build a coalition.

Upon first reflection, this result suggests that the government-to-be would be less committed to right wing ideology than had the results been otherwise and the Likud had won. Surely, its plurality victory gives Kadima a better chance of forming a coalition than it would otherwise stand. But the irony is that because of Kadima’s victory, and despite the fact that a centrist party rather than a right-wing party received the most votes, it is now more likely that Israel will end up having a more extreme right wing government. Here is why.

In the 120-member Knesset (parliament), Kadima will have 28 seats and Likud 27. The more extreme right wing and religious parties have a combined 38 seats; the parties more left of Kadima (including Labor, 13) have 27 seats. To establish a coalition, the ruling party needs to assemble support of at least 61 members.

Fairey v. Associated Press: Yes He Can

The lawsuit filed yesterday by Shepard Fairey against the Associated Press raises some basic questions about what copyright does and doesn’t do. Today’s New York Times describes the background  and displays the two critical images. The first is a photograph snapped by Mannie Garcia for the Associated Press (there seems to be dispute over the copyright to the photograph between Garcia and the AP, but that isn’t my issue today). The second is a now iconic poster created by Fairey based upon the Garcia photograph.

The lawsuit suggests that Fairey used the Garcia photograph as a “visual reference” in creating two Obama posters. I am not quite sure what that means. I take that to mean that Fairey looked at the Garcia photograph while he created the Obama posters. An alternative use of the Garcia photograph would be something more akin to a remix or a mash up, where the transformations resulting in the new work are directly made on the original work.

I think that there are good reasons to treat those two cases differently. In snapping Obama’s picture, Garcia did not obtain a right over other images portraying Obama’s original look, pose and posture. Another photographer taking exactly the same picture at exactly the same time would have full rights as to the image she took, and Garcia could not somehow block the second photographer merely because he had simultaneously taken the same picture.