The University of Chicago Law School Faculty Blog

Student Blogger - Summer WIP: Bernard Harcourt on Neoliberal Penality

A lively WIP commenced Thursday with Bernard Harcourt presenting his ongoing project (previously seen as one of Chicago's best ideas) on what he calls "neoliberal penality."

The idea behind neoliberal penality is that as the norm against government intervention in the economy has increased, governmental energies have been channeled instead to an ever-increasing carceral sphere. Neoliberalism argues that the market is naturally ordered, and that government intrusion constitutes a distortion that generally should be avoided. By contrast, the penal arena is seen as an appropriate venue for government to flex its muscles. Consequently, the social forces which might press against increased penality are weakened, as crime and punishment are precisely the areas in which government is seen as having the greatest claim to authoritative legitimacy.

David Frum (American Enterprise Institute) on Judge Sonia Sotomayor: Subprime Reporting

David Frum of the American Enterprise Institute took the air last night—and the blogosphere—to blast President Obama’s nomination of Judge Sonia Sotomayor. In his diatribe “Sotomayor not a justice for these times,” Frum attacked Judge Sotomayor as someone “whose experience of business law is abstract and academic.”

“Abstract and academic”?  Does anybody fact check anything anymore? 

David Frum has no idea what he is talking about. Judge Sonia Sotomayor was an attorney in a commercial litigation firm in New York City from 1984 (after prosecuting cases for District Attorney Morgenthau in Manhattan) until 1992 (when she was sworn in as federal district court judge, nominated by President George H. W. Bush). 

Student Blogger - Chicago’s Best Ideas: Bernard Harcourt on “Neoliberal Penality: A Genealogy of Excess”

In light of the financial crisis, many people are calling for greater regulation of the market. A few years ago, many called for freeing the market from excessive regulation. The common thread underlying both sentiments is that there is there is a spectrum along which market regulation can be located, from free at one end to excessively regulated at the other. These assumptions are ubiquitous, but not quite universal.

On May 21, Professor Bernard Harcourt gave a talk in the Chicago's Best Ideas lecture series entitled "Neoliberal Penality: A Genealogy of Excess" (about which he has a paper in progress). Harcourt took on the concepts of "free market" and "excessive regulation" by highlighting two snapshots in time: grain laws in France in 1739, commonly considered to epitomize excessive regulation; and the Chicago Board of Trade in 1996, representing the free market.

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.

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).

Revisiting the Posner and Vermeule Argument for the Legalization of Torturous Interrogation

The release of the four torture memos this week raises a number of important questions that are nicely set out in yesterday’s New York Times editorial—including whether federal district court judge Jay Bybee should be impeached, whether he and other authors of the torture memos, including John Yoo and Steven Bradbury, should be prosecuted, and whether the “following orders” defense should be extended to interrogators who complied with the Bush administration’s torture memos.

The release of the torture memos also affords an excellent opportunity to revisit a question that was hotly debated here at the Law School in 2004 and that gave rise to an article published in the Michigan Law Review in which Eric Posner and Adrian Vermeule argued for the legalization and regulation of torturous interrogation.

Do the recently released torture memos shed any light on that debate? Should the torture memos make us feel differently about whether the legal regime that surrounds torturous interrogation—what Posner and Vermeule labeled the “OAF” approach (“outlaw and forgive”)—should be replaced by the regime of legalization and legal regulation that Posner and Vermeule proposed—what we might call an “LAR” approach (“legalize and regulate”).

Nationalize the Banks After, Not Before They Go Bankrupt

That was Hank Paulson’s big mistake. He partially nationalized the big banks before they went under. He rescued them before we could gain control. The result is that we – the American people – are the largest shareholders of Citibank (with 7.8% of their equity) and of Bank of America (with 6% of theirs), and yet we have no way to really influence their lending practices, no way to make them thaw the frozen credit markets, nor any way to stop them from lining their pockets with our tax money.

Now, there’s a raging debate over the $18.4 billion in year-end bonuses that the bankers just gave themselves. President Obama went out of his way to express his anger, calling the bonuses “shameful” and “the height of irresponsibility.” Senator Christopher Dodd is trying to find a way to claw back the money; and it seems that Andrew Cuomo is actually going to try to get Merril Lynch to return their $4 billion in bonuses. Some on Wall Street are defending the bonuses and others are justifying them on various tax and compensation grounds. Personally, I don’t think President Obama went far enough on Thursday. I think Geithner should immediately have told the banks to return the bonuses to the American people. Even if Geithner probably couldn’t force it, I think he could have made it happen in a phone call. Clearly, the banks didn’t need those $18.4 billion – I mean, our $18.4 billion – that badly.

Geithner Needs to Tell Bank of America to Cut a $4 billion Check to the U.S. Treasury, Now.

>Sometimes blog entries don’t need to be that long. Sometimes, the issues are cut and dry. The newest revelations about Merrill Lynch are a case in point. 

Thanks to the Financial Times, we now all know that Merrill Lynch handed out $4 billion of our bailout  money in year-end bonuses. That represents almost 10 percent of the $45 billion infusion that Bank of America received under the first tranche of the TARP bailout.

[For those who forgot the timing of all this: Bank of America announced it was buying Merrill in September 2008. Bank of America got its first TARP injection of $25 billion in October 2008. Merrill Lynch gets board approval for the $4 billion in bonuses in December 2008, while reporting losses of about $27 billion. Bank of America gets a second shot of $20 billion in January 2009.

President Barack Obama has warned that this might not be good for the banks. Dave Krasne on the NYT op-ed page> writes about “foolhardy behavior.” And Andrew Cuomo has subpoenaed Merrill’s ex-boss.

But there’s no need for expensive litigation, nor, for that matter, veiled threats. Our new Treasury secretary, Timothy Geithner, should simply demand that Bank of America immediately cut a check to the United States Treasury for $4 billion. Now. It’s that simple.

{If you are interested, I am intervening more regularly and often at greater length in the French weekly, L’Express, at this site here}

Harcourt Continues French Coverage of American Politics

Those of you who read French may be interested to know that the French weekly, L’Express – the equivalent of Time magazine – has again turned to Professor Bernard E. Harcourt for commentary on the new Obama administration.  Professor Harcourt’s chronicle Politique USA – Les 100 Premiers Jours is also being published in a new live electronic book format by Éditions Le Manuscrit, which just released Professor Harcourt’s most recent book, Journal de campagne (2009).

Bernard Harcourt's Election Blog, en Francais

Bernard Harcourt, Julius Kreeger Professor of Law and Criminology and Director of the Center for Studies in Criminal Justice, has been asked by L'Express -- a French news magazine similar to Time or Newsweek -- to cover the U.S. elections for their readers. His election blog can be found here.