The University of Chicago Law School Faculty Blog

Student Blogger - Lincoln's Code: The Laws of War and the Dilemma of American History

There is a paradox, Columbia Professor John Witt argues, lying inside America's contribution to modern warfare. On the one hand, the United States has been the leading force in creating and promulgating the modern laws of war. And on the other hand, the United States has been pioneer in the use of ever-more destructive methods and materials of warfare.

What explains this tension? The common view is simple: hypocrisy. But Witt thinks there might be something more to this story, and presented an early draft of a chapter from his current book project, tentatively titled "Lincoln's Code: The Laws of War and the Dilemma of American History" to the University of Chicago's American Legal History Workshop.

Witt's core argument is that America's relationship with the laws of war is not accurately captured by a neat division between theoretical ideals and messy practice. Instead, the oscillation is between two different conceptulizations of moral warfare: just ends versus just means. The former was represented by the classic Augustian view that a war is just if the cause is just. Once this threshold was established, a prosecuting force could undertake whatever means necessary to attain victory. The latter, an Enlightenment reaction to Augustine, urged that nations contingently put aside their own view of their moral rightness, recognizing that (since both sides inevitably think they are in the right), the Augustinian view sanctioned a never-ending spiral of recrimination and escalation that could quickly spiral out of control.

Adam Cox on the NAMUDNO Argument

A brief heads-up: over on the Election Law Blog, Adam Cox has posted a piece on the NAMUDNO argument (you can get some background on the case on the SCOTUS Wiki).

Antitrust Updates: Google Book Search; Section 2 Symposium; The Mediated Book

Three quick items of interest:

1. The judge extended the deadlines in the Google Book Search settlement by roughly four months yesterday. That means that the new opt-out deadline is September 4, 2009 and the Fairness Hearing is scheduled for October 7, 2009. Also yesterday, there are a number of reports (NYT) that the Antitrust Division at DOJ is now taking a serious look at the settlement. This is hardly surprising, since the most obvious parallels to the settlement are ASCAP and BMI and we have engaged in nearly 70 years of antitrust “regulation” of them. You can read my paper on the antitrust issues in GBS here (and I have a short version this week on the Washington Legal Foundation’s website). Fred von Lohmann at the Electronic Frontier Foundation has a nice update post on GBS. (And if you want more on ASCAP and BMI, you might try this.) Google itself explains the benefits of the deal today on its Public Policy Blog.

2. The folks at Truth on the Market are planning an online symposium starting on May 4^th on Section 2 of the Sherman Act and the DOJ’s recent report on Section 2.

3. Finally, I will be attending a symposium next week at George Mason on Online Markets v. Traditional Markets. I will be discussing “The Mediated Book.”

Diseases and National Borders

As the spread of swine flu has taught us yet again, today’s problems cannot be contained by national borders.

But even if we admit that our problems are global, perhaps we might still insist on purely local solutions. That is the argument of David Brooks this morning. In his provocative New York Times column “Globalism Goes Viral,” Brooks argues that rather than an “infrastructure of international cooperation,” a “decentralized” response is best.

Brooks begins his argument by contrasting the swift response of Mexican and American local authorities to the swine flu outbreak with his vision of the “globalist” alternative:

“If the response were coordinated by a global agency, those local officials would not be so empowered. Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero. The institution would have to poll its members, negotiate internal differences and proceed, as all multinationals do, at the pace of the most recalcitrant stragglers.”

This so-called “globalist” alternative is certainly not the one promoted by the international lawyers I know. The “infrastructure of international cooperation” does not imply subservience to a dictator in Geneva. Rather it requires coordinating our responses so that, inter alia, (1) states share information with each other; (2) states continue commerce with each other, and do not exploit health fears for protectionist reasons; (3) states take steps before crises to improve their capacity to respond to such crises; and (4) experts from around the world collect and analyze data from around the world and offer measured responses to contain the crisis.

Student Blogger - When Old Is Not Gold: The Exclusionary Rule Debate Revisited

An oldie, but goodie of criminal procedure has once again been making the rounds in the staid halls of legal academia. The exclusionary rule, long a favorite topic among law professors (and perhaps not so coincidentally, the bane of law students), has been the subject of debate almost since its inception. But despite its critics, it has also been a seemingly unimpeachable pillar of constitutional criminal procedure since the Supreme Court held in Mapp v Ohio (1961) that the remedy applied to states (via the Fourth and Fourteenth Amendments) as much as to the federal government.

That is, until now. Recent Supreme Court decisions such as Hudson v Michigan (2006) and Herring v United States (2009) have sparked a new debate over the efficacy of exclusionary remedy, and once again drawn its continued viability as a constitutional mandate into question. But is that debate really new? In his new paper, The New Exclusionary Rule Debate: Still Preoccupied with 1985, presented at last week's Crime and Punishment Workshop, Professor Donald Dripps of the University of San Diego School of Law contends that it is not.

Student Blogger - Television Duopoly in Small Markets: The Effect on Diversity

The FCC is tasked with managing the public airwaves in furtherance of the public interest. In regulating local broadcast television markets, the FCC has broken this broad mandate into three criteria: localism, competition, and diversity of viewpoints. Localism means people in Bend, Oregon should see programming responsive to local needs and interests, not just the national nightly news broadcast. Competition traditionally meant robust competition for advertisers, but in 2008 the FCC expanded competition to include competition for viewers as well. Diversity of viewpoints, which is self-explanatory, is arguably necessary to further traditional marketplace of ideas and democratic self-governance ideals; it is not healthy for a community to hear only local Democratic Party talking points.

After assessing these criteria, the FCC promulgated regulations prohibiting companies from owning more than one broadcast television station in small markets. Professor Matthew Spitzer of Cal Tech & USC presented a paper at last week’s Law & Politics Workshop arguing the FCC should instead adopt a presumption in favor of duopolies in small markets because duopolies increase viewpoint diversity. An intervenor can then rebut the presumption by demonstrating the costs of merger outweigh the benefits based on local circumstances, such as the harm to the local advertising market; the difficulty of this comparison gives the presumption great weight, however.

The FCC and Professor Spitzer favor different approaches because they have different assumptions about how station owners choose their station’s political viewpoint. The FCC assumes stations reflect the viewpoint of their owner. But Professor Spitzer contends viewpoint is instead a tool for attracting viewers, much like other programming decisions. Rational owners will therefore choose station viewpoints that maximize the number of viewers.

Student Blogger - A Second Look at the Third Party Doctrine

Professor Richard Epstein on the 4th Amendment Third Party Doctrine

Criminals who can't keep secrets have short careers. A big reason for this is the “third-party doctrine” which, as most readers of this blog are probably aware, holds that information shared with others is not generally protected by 4^th Amendment restrictions on search and seizure. Put differently, the law does not recognize any reasonable expectation of privacy in information shared with others. This doctrine has been widely criticized and, most recently and notably in an article by 4^th Amendment scholar Orin Kerr, defended (The Case for the Third-Party Doctrine, 109 Mich. L. Rev. 561, 563 (2009)). Chicago's own Richard Epstein has recently taken interest in this debate, and presented his preliminary thoughts at this week's Works in Progress (WiP) talk. Essentially, Prof. Epstein thinks current constitutional doctrine is generally correct on this point. He agrees with Prof. Kerr and other defenders of the third-party doctrine that it is worth keeping, though his defense is on somewhat different grounds than those of Prof. Kerr. Since Prof. Epstein comes to this issue as an outsider, he also returns to first principles in his work and asks whether we are analyzing these cases consistently and coherently. His conclusion is to suggest a general method for considering 4^th Amendment issues that optimizes the public benefits and private costs of permitting government action in various classes of cases.

A Second Reply to Harcourt

Harcourt makes four distinctions: (1) outlaw-and-forgive; (2) outlaw-and-excuse; (3) legalize and regulate; and (4) outlaw.  We made two distinctions: (1) outlaw-and-forgive; (2) legalize; and (3) outlaw.  The confusion that has hampered this exchange arises because Harcourt’s distinctions do not track the ones that we used.  We argued that outlaw-and-forgive proponents classified the necessity defense as outlaw-and-forgive whereas in fact it falls under legalize.  Harcourt agrees that the necessity defense does not fall under outlaw-and-forgive but argues that it does not legalize but outlaws-and-excuses.  The “outlaw-and-excuse” term is a misnomer: the necessity defense justifies, it does not excuse in the legal sense.  But it is evident that the real distinction Harcourt is making is between laws that create criminal liability and laws that create affirmative defenses.  This distinction splits our category, “legalize,” into two—legalize through the liability rule and legalize through the defense.  Harcourt thinks that the purpose of our paper is to redefine various crimes (say, battery) so as to contain exceptions for coercive interrogation, while he appears to believe that the necessity defense remains adequate for addressing the ticking-time bomb scenario.

In fact, our paper does not come down on one side or the other of the question whether coercive interrogation in the ticking time bomb scenario (the paper did not address the Bush administration’s practices) should be authorized through a defense or in some other way.  Indeed, we say that perhaps it is appropriate just to treat coercive interrogation as the model penal code treats any use of deadly force (“It seems sensible to limit coercive interrogation in the same way deadly force is limited,” p. 701 & n. 81), albeit with whatever adjustments that are needed to address the differences in setting.  We go through a number of considerations touching on how the legal regime might be structured but do not come to a conclusion because our argument was limited to the claim that regulating coercive interrogation through “forgiveness,” properly understood to mean immunity created ex post by popular or political pressure, is unwise.

Revisiting Posner and Vermeule on Legalizing Torturous Interrogation: A Reply to Posner

A few preliminary clarifications in reply to Eric Posner’s post responding to mine, before reaching the thornier question whether a necessity defense is ever appropriate in the case of torturous interrogation.

First, in their article arguing for the legalization of torturous interrogation, Eric Posner and Adrian Vermeule specifically identify the necessity defense as one type of an “outlaw and forgive” approach. In Part III.A, under the heading “Outlaw and Forgive,” they write: “This ‘outlaw and forgive’ (‘OAF’) approach, as we shall call it, comes in two flavors. The first places the responsibility to forgive with political officials such as prosecutors, governors, or presidents. The second places the responsibility with judges or juries” (104 Mich. L. Rev. at p. 694). Posner and Vermeule then go on to critique the political pardon flavor in their subpart (1) at pages 694-697 and the necessity defense approach in their subpart (2) at pages 697-698. In fact, one need not read any further than their introduction to see clearly that the authors do not embrace a necessity defense as a form of “legalize and regulate.” In the very introduction, Posner and Vermeule refer to the necessity defense as a “trick.” They write:

“Among legal academics, a near consensus has emerged: [torturous] interrogation must be kept ‘illegal,’ but nonetheless permitted in certain circumstances. How is this trick accomplished? There are two popular suggestions. First, interrogators can use the necessity defense… Second, interrogators can throw themselves at the mercy of the political process…” (p. 673).

Reply to Harcourt

If I understand Bernard Harcourt’s post correctly, he believes that torture should be legal when it is “necessary” (that is, when the necessity defense is satisfied), whereas he attributes to me and a coauthor the view that if torture is to be legal, the legal regime should consist of ex ante rules (for example, authorizing certain practices and banning others) rather than an ex post standard like the necessity defense.  He then criticizes us for advocating the “legalize and regulate” approach.  However, Harcourt himself advocates the “legalize and regulate” approach since the necessity defense is just a way to “legalize and regulate,” as we pointed out in the article, repeating a point made by Sandy Levinson several years ago.  Harcourt is seriously confused; he also misses the point of the article.

The purpose of the article was not to make this argument, but to criticize what we called the “outlaw-and-forgive” approach to torture.  Our survey of the law and philosophy literatures revealed that many, perhaps most, scholars, while condemning torture very strongly, argue that it is morally justified in extreme circumstances.  These writers try to reconcile their opposition to torture and their belief that it may sometimes be justified, by advocating a legal ban accompanied by political or legal forgiveness when justified—in the form of exercises of prosecutorial discretion, pardons, suspensions of sentences, and the like.  (A more common example is euthanasia, which appears not to be prosecuted in many places where it is illegal.)  We argued that there is little sense in this proposal: torture should either be legally banned or regulated.  For the argument, see here.

The source of Harcourt’s confusion is, I believe, our statement that the necessity defense is a form of outlaw-and-forgive.  That made it sound as though we disapproved of the necessity defense.  However, we described the necessity defense as “outlaw-and-forgive” because the scholars we criticized did, but our main argument in this setting was that the necessity defense is in fact not an example of outlaw-and-forgive, since it simply legalizes torture when it is necessary, as I noted above.  The contrary view rested on a confusion between a legal defense and extra-legal forgiveness (like a pardon).  We later turned to the question whether, if torture is to be legal, the necessity defense or a system of rules would be superior.  In that discussion, we did not take a strong position, instead pointing out that the answer to this question depends on various empirical factors of which we were ignorant.

The release of the torture memos has no bearing on our critique of outlaw-and-forgive.  It could have a bearing on the subsidiary rules-versus-standards question that interests Harcourt.  But I believe that his conclusion is premature.  If the Obama administration chose to prosecute CIA agents, for example, it could turn out to be easier to convict people who violated the clear, rule-like guidelines, than people who had received a vague order to torture “if necessary.”  Alternatively, it could be the case that agents given the standard would be more likely to act appropriately.  It is impossible to know on the basis of the memos alone; we first need more information as to what happened.