The University of Chicago Law School Faculty Blog

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.

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.

Video: Eric Posner and Steven Davidoff on "Economic Ants and Grasshoppers"

On Monday, BloggingHeads posted a discussion between Kirkland and Ellis Professor of Law Eric Posner and The University of Connecticut's Steven Davidoff about "Economic Ants and Grasshoppers," in which they discuss where blame for the current economic crisis lies, and what could and should be done about it. A portion of the discussion is embedded below, or you can watch the whole discussion here.

Video: Eric Posner and Jack Balkin, "The Politics of Emergency"

Last week, Kirkland and Ellis Professor of Law Eric Posner recorded a conversation with Yale's Jack Balkin on the Bloggingheads.tv site on "The Politics of Emergency." Among the topics covered were: executive power in a time of emergency, whether the president can change reality, secrecy in the Obama administration, and imagining an executive branch 2.0. The video is embedded below, or can be watched on the Bloggingheads site.

Audio/Video: Fault in Contract Law

In September, Frank and Bernice J. Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat organized a conference intended to reevaluate the role of fault in contract law. Speakers included Chicago faculty Saul Levmore, Eric Posner, Richard Epstein and Judge Richard Posner, along with experts in contract law from around the world. Subscribers to our Faculty Podcast may have already heard Judge Posner's "Let Us Never Blame a Contract Breaker," and audio and video of the entire conference is now available on the conference website. You may also watch Professor Ben-Shahar's introduction to the conference in the video embedded after the jump.

The Iraq War – A Humanitarian Success?

Consider these statistics (from this mostly dated Brookings report):

Time	Commercial TV Stations	Commercial Radio Stations	Independent Newspapers and Magazines
March 2006	54	114	268
Prewar (2003)	0	0	0

Or these: Internet and Telephone Subscribers

	Internet Subscribers	Telephone Subscribers
October 2007	827,500	14,300,000
Prewar	4,500	833,000

Or these: Index of Political Freedom (1-10, highest)

Israel	8.20
Lebanon	6.55
Morocco	5.20
Iraq	5.05
Palestine	5.05
Kuwait	4.90
Tunisia	4.60
Jordan	4.45
Qatar	4.45
Egypt	4.30
Sudan	4.30
Yemen	4.30
Algeria	4.15
Oman	4.00
Bahrain	3.85
Iran	3.85
UAE	3.70
Saudi Arabia	2.80
Syria	2.80
Libya	2.05

[Pre-war Iraq was certainly a 1.0.] A poll conducted last March found that 65 percent of Shiites and 87 percent of Kurds said that the “invasion was right.” Few (5%) Sunnis agreed but, overall, 49 percent of the population supported the invasion. (The poll results are in the Brookings report.)

Eric Posner on the Bailout

Chicago's own Eric Posner recently joined the team of bloggers at the Volokh Conspiracy, and has posted several pieces there in recent days about the attempts to solve the current financial crisis.

• 9/22: The Bailout Bill: What Should Congress Do?
• 9/23: Does Congress think that Paulson asked for not enough power?
• 9/24: The Dodd Plan: A Contract Clause Problem?
• 9/24: The Bailout and Oversight
• 9/25: Paulson v. Dodd: distributional considerations

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.

Audio/Video: Eric Posner and Henry Farrell, "Readers Like You"

Earlier this week on bloggingheads.tv, Chicago's Eric Posner engaged George Washington University's Henry Farrell in a wide-ranging discussion that explores a variety of issues, from the effect of the blogosphere on politics to the question of whether aggressive counterterrorism measures actually nurture militant Islamism.

The clip below features a portion of the discussion concerning the processing of enemy combatants; the full video (as well as downloadable audio, if that's more your style) is available here.

The Puzzling Consensus in Favor of the Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act, which bans certain types of genetic discrimination by employers and insurers, passed the House by a vote of 414 to one, and the Senate by a vote of 95 to zero. That means it's a good idea, right? Wrong.

Suppose an insurance company wants to offer a policy capped at $10,000 over a year. It has two types of potential clients: high-risk types who have a 0.05 risk of suffering a $10,000 injury and low-risk types who have a 0.01 risk of suffering a $10,000 injury.  In expected terms, the high-risk types cost the insurer $500 each, and the low-risk types cost the insurer $100 each.

Consider the following question. If the insurance company can distinguish potential clients on the basis of easily visible markers (such as age), do you think it should be able to offer an expensive policy for high-risk types ($500) and a cheap policy for low-risk types ($100)?