The University of Chicago Law School Faculty Blog

Crowdsourcing Obama's Exams

Like Britney Spears and Paris Hilton, Barack Obama’s past has been laid bare for Internet gawkers everywhere. But that may be where any similarity ends.

Instead of Inside Edition and Perez Hilton, Obama has been scrutinized by the New York Times and legal eagles Akhil Amar, Randy Barnett, John Eastman, and Pam Karlan. Fortunately for Obama, the past under review has received largely glowing reviews.

The precise target of the scrutiny is Obama’s 1994 syllabus for a seminar and, more strikingly, his late Nineties through early 2000s exams and model answers for constitutional law.

The blogosphere is alight with commentary on Obama’s course materials and what this reveals about Obama.

I don’t want to focus on the quality of those papers and what they allow us to predict about Obama today, but rather on what this story reveals about (1) the New York Times and the way news is processed and received in the Web 2.0 era; and (2) the precariousness of our privacy today.

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.

Cass Sunstein's Op-Eds on Libertarian Paternalism

Along with the Graduate School of Business' Richard Thaler, his co-author for the book Nudge: Improving Decisions About Health, Wealth, and Happiness, Cass Sunstein recently published two op-eds touching on the topic of that book. The first, in the April 2nd Los Angeles Times, gives a broad overview of the idea of libertarian paternalism that Sunstein and Thaler advance in their book; the other, in the April 6 Chicago Tribune, focuses on how libertarian paternalism might be applied to the problem of climate change. Since Cass' ideas about this topic have come up frequently on this blog (see here, here, here, and most recently here), we thought it might be interesting to let the readers of the Faculty Blog chime in on these pieces.

Edited to Add: Cass and his co-author, Richard Thaler, have a blog on Nudge-related topics that those interested in this topic might enjoy.

One-Click Paternalism

For a number of years, those interested in behavioral economics have been exploring how recent findings about human fallibility might bear on law and public policy. There has been growing interest in various forms of paternalism -- alternately described as light, soft, asymmetrical, and libertarian. For all these approaches, the unifying idea is that private and public institutions might adopt rules that steer people in directions that will make their lives go better while also maintaining freedom of choice. An example is a default rule (say, for savings or for health care) that, if unaltered, helps all or most people; another example is a cooling-off period (say, for encyclopedia sales).

Richard Thaler and I have been working on the topic of paternalism for many years, and have been defending forms of paternalism that preserve freedom of choice. Some libertarians, fearful of government bias or error, have objected that if public officials are involved, paternalism has no legitimate place.

In response to this objection, we have recently become interested in the possibility of "one-click paternalism," embodied in approaches that nudge people in good directions, but that allow essentially costless opt-outs. An example would be an automatic enrollment plan for savings, which workers could reject by a press of a button. Another example would be a default prescription drug plan for seniors, which people could replace with a plan that better suits their needs with a click (or possibly two).

If one-click paternalism provides a useful model, cooling-off periods are a bit more controversial, at least if you can't one-click your way out of them. Thaler and I think that one-click paternalism is often a useful approach for private institutions (employers, rental car companies, cell phone providers) and that the market will produce at least some protection against self-interested or venal nudging.

For government, we think that a form of public nudging is inevitable (short of anarchy), and that in many domains, one-click paternalism is preferable to both the command-and-control regulation favored by many liberals and the laissez-faire approaches favored by many conservatives. (For those interested in a detailed treatment, see our new book on these issues here.)

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.