The University of Chicago Law School Faculty Blog

Audio/Video: Anderson and Posner on "Torture, Law, and War"

This week's Faculty Podcast episode features a panel from the "Torture, Law, and War" conference held at the Law School earlier this year; the panel includes 2007-8 Law and Philosophy Fellow (and current Visiting Scholar) Scott Anderson, Kirkland and Ellis Professor of Law Eric Posner, and Rutgers University's Jeff McMahan. They discussed the questions:   Should the law absolutely ban coercive interrogation?  And can and should it really mean it?

Video of the panel is embedded below, and you may also download an .mp3 or a .mov file.

Conference: "Emotion in Context: Exploring the Interaction between Emotions and Legal Institutions"

This past May, then-Visiting Professor of Law Susan Bandes organized a fascinating conference that brought together scholars working in philosophy, neuroscience, neuroeconomics, sociology, psychology, and political science to consider the intersection of legal institutions and human emotion. For example, legal institutions consistently make assumptions about how people individually or collectively respond to new information, assess risks, or decide whom to trust or fear, about what motivates people to forgive or to seek vengeance, or about how to promote or discourage empathy. The conference explored the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of legal institutions. Included in the proceedings were Chicago faculty members Scott Anderson, Mary Anne Case, Richard Epstein, and Martha Nussbaum. Audio recordings of many of the talks are now available on the conference website.

The conference was sponsored by the University of Chicago Law School, the Gruter Institute for Law and Behavioral Research, the DePaul University College of Law and the John M. Olin Program in Law and Economics at the University of Chicago Law School.

Audio/Video: Conference on "Contested Commodities"

Last month, the Law School's Law and Economics Program hosted a conference  entitled "Contested Commodities: Reframing the Debate on Financial Incentives in the Supply of Genetic Materials." The conference, which was organized by Visiting Professor of Law Michele Goodwin, looked at the law, economics, and ethics of the burgeoning market for human genetic materials ranging from blood, sperm, and ova to harvested organs and even newborn babies. The keynote address (video of which is embedded below) was by Richard Epstein, and audio files of all of the panels are available from the conference webpage.

 

Audio: Abner Mikva and Jason Huber on the Appellate Advocacy Clinic

It's been an exciting year for clinical education at the Law School, with two new programs being added (the Exoneration Project and the recently announced Federal Criminal Justice Project) and the Mandel Clinic celebrating its 50th anniversary. We plan to bring you much more clinic-related content in the near future, including audio and video of the Mandel Clinic's 50th Anniversary Symposium; in the meantime, we hope you'll enjoy a brief podcast of Judge Abner Mikva and Clinical Instructor Jason Huber discussing the work and  history of the Appellate Advocacy Project. This talk was recorded on April 14, 2008 as part of the Goodwin and Procter Clinics in Action Lunch Series, and also featured current students discussing their experiences working in appellate advocacy (though these are not included in the recording).

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 legal 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.

Susan Bandes on "Emotions, Values, and the Construction of Risk"

The University of Pennsylvania Law Review's PENNumbra site has published a response by Visiting Professor of Law Susan Bandes to "Two Conceptions of Emotion in Risk Regulation," a recent article by Dan M. Kahan. Kahan's article is itself part of a longer debate with Cass Sunstein; with this response, Bandes enters the discussion. She writes: 

Are emotions subversive of reason or essential constituents of it?  This is the broad question posed by Dan M. Kahan in Two Conceptions of Emotion in Risk Regulation, a welcome addition to his ongoing inquiry into how emotional appraisals of value influence decision making. Much of Kahan’s recent work has focused on a particular aspect of policymaking: the study of risk perception. Two Conceptions continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan’s cultural cognition approach and Sunstein’s heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. Kahan illuminates the issues at stake with his customary passion and clarity.

A major contribution of Kahan’s work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand.

The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.

What Can We Really Learn from Eliot Spitzer's Folly?

Real life is complicated. Prostitution is an especially complicated part of real life. And Eliot Spitzer – by virtue of being a very high-profile, wealthy politician with a moralizing streak, an unkempt libido, an armada of powerful enemies, and a fierce but trivializing media looking on – has managed to raise the level of complexity of these matters even further. So, in my estimation, the mess he has made of his life and career (and the mess he made for some of the prostitutes he hired) provides little comfort for anyone trying to stake a position on more general issues regarding prostitution.

I will try to contribute here by briefly reprising a few thoughts I have published elsewhere.  (For these, see my “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution,” in Ethics, July, 2002). I would agree with Nussbaum, writing here, that there are many reasons to reform the current laws governing prostitution, but I would resist going as far as she seems to go, suggesting that the legal effort to prevent prostitution is based in little more than Puritan moralism. I will conclude by saying a bit about how I think Spitzer’s folly does little to help make a compelling case to legalize prostitution, though, as I said above, the complications here are rather extraordinary, so more helpful cases could no doubt be found.

Real Legal Remedies for Virtual Harms? (Blog Debate: LIV)

In his post below, Saul asks: "If A deletes much of B's existence in the virtual world, or A manipulates B in that world to such a degree that B's real world health and safety are at issue, why should criminal law be thought out of bounds?"

My answer is that I don't think it should.   Most criminal laws are and should be technology-neutral.  What matters is the harm, not the specific way that the harm is caused.  For example, the crime of sending an interstate threat to harm a person (18 U.S.C. 875)  is the same crime regardless of whether the thread is by postal mail, a telephone call, an e-mail, or communications in a virtual word.  I think this is right: the means of committing the offense normally shouldn't matter.  The key point in my paper is that the "virtualness" of the harm shouldn't matter, either.   That is, we should stay focused on the impact of conduct in the real physical world, not in the virtual one.   So, for example, in the case of the crime of sending a threat to harm a person, the "person" still needs to be a real live physical person.   The concern motivating my paper is that we'll start to believe our virtual metaphors and equate virtual harms with real ones; I think this is a major mistake.

Maybe you're thinking, "Hey, what are the chances that we'll start taking virtual harms so seriously?"  The statute to watch is 18 U.S.C. 1030, the Computer Fraud and Abuse Act, a crime enacted in the 1980s to punish computer hacking. Congress opted to describe the prohibited act as "accessing" a computer "without authorization" or "exceeding authorized access," and more than 20 years later no one knows what these words actually mean.   Some of the interpretations out there are frighteningly broad.  For example,  there are lower-court precedents holding that violating Terms of Service make use of a computer "exceed authorized access."  The U of C's own Judge Richard Posner has written an opinion for the Seventh Circuit holding that an employee who uses a computer with the subjective intent of hurting his employer accesses his work computer "without authorization."  These sorts of precedents  have arisen in the civil context, but they apply equally in the criminal context.  And they'll give prosecutors some ready weapons to start charging virtual harms under existing federal laws if they so choose.

I've written an article arguing against these broad interpretations of Section 1030, and I've been happy to see its arguments gain some traction recently in a few district court opinions.  (Not cases involving virtual worlds -- just computer cases more broadly.)  I think the scope of Section 1030 will be the most important battleground  for the scope of criminal law in virtual worlds in the next few years.  Those who are worried about the evolution of criminal law in virtual worlds should watch these cases very closely.

Is There Any "There" There? (Blog Debate: Kerr on Levmore)

Saul's first post takes a strong view on an important preliminary question:  When we ask how the law should regulate virtual worlds, is there any "there" there?  I attended the very cool Legal Futures conference at Stanford this weekend, and a panel on virtual worlds revealed a very sharp split on this. Some people think this topic is extremely silly, because after all, we're just talking about dorks playing computer games.  Other people think these issues will be among the most important cyberlaw issues of the 21st Century.  I found myself somewhere in the middle, although I tend to think Saul is probably right.  On one hand,  I agree that these aren't important questions right now.  On the other hand, computer technologies always evolve in the direction of becoming more realistic and more lifelike.  That's going to draw in more and more people over time, especially lots of children.  Where people go, the law tends to follow.  If people want to regulate video games and sex toys, you can bet they'll want to regulate virtual worlds. 

My paper focuses specifically on the role of criminal law in virtual worlds, and I think this context makes the case against government intervention easiest.  Filing a lawsuit is as American as apple pie, but most people realize that trying to lock someone up is different (even if with our incarceration rate, a lot of people would say that's pretty American, too).  Still, I think the role of criminal law in virtual worlds is likely to raise a number of difficult questions.  For example, it's easy to agree in the abstract that criminal law should not regulate harms that are only virtual but should redress harms that seep out into the real world.  But where exactly is the line?   Virtual world participants are real people who suffer real unhappiness; the case for regulation will be that these real people are suffering real harms even if the harms seem to outsiders as only virtual.   

Similarly, where will we draw the baseline of conduct and rights in virtual worlds -- in formal documents like Terms of Service or in social norms?  This is a recurring problem in computer crime law, one that I addressed in depth in the case of unauthorized access statutes and that is a major theme of my  casebook:  Computer crimes are so new that we just haven't figured out what we're criminalizing.  Legislatures tend to respond to pleas for new computer crime laws by passing overly broad laws  and letting prosecutors exercise discretion to charge the right kind of cases.   Sometimes, this works; the meaning of the laws evolve case by case, and new laws take on more certain meaning over time.  But even when it works, it often leads to disturbing overcriminalization.  I wrote this essay in part because I fear something similar might happen with virtual worlds: The sentiment that "there oughta be a law" can be a strong one, and it's very easy and politically popular for Congress to pass broad criminal laws that sit on the books underenforced.

Bandes on Framing Wrongful Convictions

Visiting Professor of Law Susan Bandes has posted a paper on SSRN entitled "After Innocence: Framing Wrongful Convictions." The abstract is below and you can download the whole paper here.

After Innocence: Framing Wrongful Convictions

SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
Utah Law Review, 2008

Abstract:    
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.

I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.

The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.