The University of Chicago Law School Faculty Blog

Back to Posner and Vermeule on Torture

I read Eric Posner’s second response to my earlier two posts as a (confusing) concession. Whereas Posner in his co-authored article wanted to legalize torturous interrogation, Posner now seems only to oppose ex post political pardons. That is fine with me. I too think that political pardons are problematic in the context of torture.

This then takes us to the next question: whether there should be criminal prosecutions for the use of torturous interrogation techniques described in the “torture memos.” This issue is likely to heat up in the next few days with the forthcoming Office of Professional Responsibility report advising against prosecutions and the Obama administration’s decision to release 44 additional pictures of detainee abuse in prisons in Iraq and Afghanistan during the Bush era. My colleague Richard McAdams had begun a conversation about this question here.

Frankly, I was hoping to get beyond Posner and Vermeule, but in researching this next question I came across their 2004 Wall Street Journal op-ed defending the authors of the “torture memos.”  In their op-ed, “A 'Torture' Memo And its Tortuous Critics,” Posner and Vermeule argue that “the memorandum's arguments are standard lawyerly fare, routine stuff.” On the question of torture, Posner and Vermeule contend that the authors of the memos “provided reasonable legal advice and no more, trusting that their political superiors would make the right call.”

I’m not entirely convinced by their argument.

Student Blogger - Gun Regulation After Heller

Since the Supreme Court's recent foray into Second Amendment jurisprudence in District of Columbia v Heller, there has been much brouhaha over the implications of that decision, both in academia and the popular media more broadly. In their latest paper, presented at last week's Crime and Punishment Workshop, Professors Philip Cook, Jens Ludwig, and Adam Samaha undertake the task of sorting through various legal arguments that have been made after Heller, and identify what they deem to be threats and sideshows from the social welfare perspective. Their conclusions will likely surprise most readers.

First, the sideshows. The question that seems to have caught everyone's (or at least every lawyer's) attention since Heller is whether the Second Amendment is (or will be) incorporated (that is, applied to states and municipalities via the Fourteenth Amendment). If not, then Heller will be largely irrelevant, since most of the regulatory action occurs at the state and local level. But the real question is not whether incorporation will occur (it most likely will) but what will be incorporated, argue the professors. In other words, the scope of Second Amendment right as understood by courts—not the universality of its applicability to state and local governments—is likely to matter most when it comes to social welfare.

David Souter, Human Rights Justice

In her profile of Justice David Souter in the New York Times this weekend, Linda Greenhouse notes that Justice Souter only crossed the Atlantic twice, once for his Rhodes Scholarship at Oxford, and the second time for an Oxford reunion. But for a judge who had spent such little time abroad, he certainly demonstrated concern (shall I dare say "empathy"?) for those beyond our shores. This was made clear in his decision in Sosa v. Alvarez-Machain, a case handed down on the last day of the Court's October 2003 term.

Sosa was the Court's first full engagement with the Alien Tort Statute (ATS), which formed but one sentence in the Federal Judiciary Act of 1789: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

More on Civil Unions and Religious Liberty

I have little to add to Doug Laycock's careful response to Geof Stone's forceful post regarding, among other things, Doug's and my support for broader religious-freedom protections than the ones contained in the Illinois proposal that prompted Geof's original op-ed.  As Doug explains, Geof seems to have assimilated our support for religious-liberty exemptions -- support that, in Geof's original op-ed, he said was "reasonable" -- to the views of Herman Talmadge, Theodore Bilbo, etc.  This assimilation is, certainly, rhetorically powerful, but it seems, to me, dissonant with the irenic tone of his initial piece ("It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere.").

Civil Unions and Religious Liberty: A Response to Stone

Geoff is not his usual careful self in his reply to Rick Garnett and me, and the straw men he flails away at bear little resemblance to what I said.  Or Rick either, but I'll let him speak for himself.

I offered a careful proposal to maximize the civil liberties of all Americans.  Gays and lesbians would be free to marry; religious objectors would generally be free not to personally facilitate those marriages in ways they considered sinful.  In the cases of unavoidable conflict, where a same-sex couple wants or needs a service that is not readily available from another provider, I said that the right to same-sex marriage should prevail over the right to conscientious objection. 

This proposal is not the right of "any tomdickandharry . . . to discriminate . . . at will."  It is not a right to refuse service in a restaurant or a hardware store or a law office or in most other businesses in the economy.  It is a proposed right not to facilitate the marriage in a way sufficiently immediate that the service provider feels personally culpable for his contribution to the marriage.  The examples I offered were wedding planners, marital counselors, and adoption agencies.  And even this right not to faciliate would be forfeit if the conscientious objector were the only wedding planner, marital counselor, or adoption agency reasonably available.

[Civil Unions]: A Reply to Nussbaum

Readers will not be surprised to learn that I agree with Martha Nussbaum's compelling analysis of this issue. I would be very interested, though, to hear what Rick Garnett and Doug Laycock think of it. Doug has already said that he supports same-sex marriage, so I suppose it's Rick whose response will be most interesting.

There's one element of Martha's analysis that I do want to address. Martha argues that states should permit same-sex marriage. But H.R. 2234 authorizes not same-sex marriage, but civil unions. I have struggled personally with the question whether to endorse a law allowing civil unions, but not same-sex marriage. Because I believe that discrimination against gays and lesbians is ignorant, immoral and inconsistent with our nation's most cherished constitutional values, I deeply believe that full equality, rather than some form of subordinated "separate but equal," is the only proper solution. Nonetheless, I am persuaded by those who know Illinois politics better than I that although the state legislature might legalize civil unions, it will not in the foreseeable future legalize same-sex marriage.

The quandary is whether to settle for a half-a-loaf or whether to stand on principle. On the one hand, accept civil unions while expressly reserving "marriage" for opposite-sex couples seems to me deeply offensive. It has the same moral justification of separate-but-equal in the racial context. It is stigmatizing, insulting and discriminatory. On the other hand, there are very real practical benefits to civil unions that mean a great deal to the day-to-day lives of same-sex couples. So, assuming the recognition of same-sex marriage is not in cards in Illinois at present, what to do? This is similar to the "don't ask, don't tell" question.

I'd be very interested to know what Martha, Rick and Doug think about this.

Student Blogger - Contracts as Reference Points

In a recent article (Contracts as Reference Points), Professors Oliver Hart and John Moore argue that parties use contracts as a reference point for their expectations of others’ behavior. Since a party agreed to the contract—perhaps through a competitive bidding process—they will not be aggrieved when their counterparty fulfills the terms of the contract. That is exactly how the party expected the counterparty to behave.

But not all contracts completely specify the obligations of the parties. Some terms of a contract are flexible, such as the exact employment tasks, or the specific quality of a product being produced. When a term in a contract is not specific, it allows parties to deviate and still meet the obligations of the contract. If a party sees their counterparty deviating, that party may become aggrieved and feel cheated. This may cause the aggrieved party to “shade”—or not adequately perform their part of the bargain—as a means of retaliation. Thus, parties may choose to adopt rigid contracts to avoid potential shaving.

The Mediated Book

Amazon announced today a bigger and better Kindle (but still black & white). I am giving my new draft “The Mediated Book” tomorrow at a symposium at George Mason on Online Markets v. Traditional Markets. The paper addresses the new book mediation—devices like the Kindle and services like Google Book Search. You can download the paper here; the abstract is below the fold.

Civil Unions: A Response to Garnett and Laycock

In this post, I’d like to make four points in response to Rick Garnett and Doug Laycock.

1.  Both Rick and Doug reject the idea that it should violate the separation of church and state for the government to enact laws for the purpose of imposing one group’s religious beliefs on non-believers. This is only tangentially related to the primary issue under discussion, but it is sufficiently important to merit a reply. Suppose a city enacts a law providing: “No person may work on the Christian Sabbath because such conduct is sinful.” I daresay that such a law, or any law like it, would necessarily violate the First Amendment, as the Supreme Court itself has expressly recognized. Indeed, it is just as much a violation of the Constitution for government to enact a law in order to impose one group’s religious beliefs on non-believers as it would be for government to enact a law for the purpose of disadvantaging African-Americans, or women, or Jews. Of course, it is often very difficult to ascertain the “real” motivation underlying legislation, and groups with constitutionally impermissible motives will usually mask them behind pretextual justifications. But this doesn’t make such laws constitutional. It just makes it difficult, often impossible, for courts to ferret out the unconstitutional motivation. But they are, in principle if not in practice, surely unconstitutional.

Student Blogger - Chicago’s Best Ideas: Todd Henderson on “The Nanny Corporation”

Update: Audio of this talk is now available, and video is embedded after the jump or available on our website.

Nannies care for children, so "nanny" is a convenient label for someone who treats people as if they are children. On May 5, Professor Todd Henderson spoke about these metaphorical nannies in his Chicago's Best Ideas talk, "The Nanny Corporation" (based on a forthcoming article in the University of Chicago Law Review; here is the SSRN version). Nannyism underlies such proposals as bans on trans fat and foie gras, smoking bans, and firing smokers.

Externalities form the primary justification for nannyism, and Henderson focused on externality-based nannyism. An externality occurs when an actor doing an activity does not bear all of the costs of that activity. Take smoking as an example. The smoker imposes some health harms directly on those around her through second-hand (or third-hand) smoke. The long-term health effects of smoking represent costs imposed on future selves, which the smoker may not take into account because of bounded rationality. If the smoker has health insurance from her job, then the other members of that common pool pay extra costs for her increased health-care costs. Solutions to externalities focus on somehow making the individual shoulder these costs.