The University of Chicago Law School Faculty Blog

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)?

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.

Video: Eric Posner Discusses "America's Rocky Relationship With The World"

Last Sunday, a discussion between Eric Posner and Heather Hurlburt (Executive Director at the National Security Network and contributor to Democracy Arsenal)was posted on Bloggingheads.tv. You can watch the video and/or download audio here.

Podcast: Eric Posner and Cass Sunstein on "Climate Change Justice"

Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the U.S. has relatively less to lose from climate change. In these circumstances, what does justice require the U.S. to do?

This is the question that the University of Chicago Environmental Law Society and International Law Society invited professors Cass Sunstein and Eric Posner to discuss during a lunchtime talk yesterday. You can listen to their talk here.

Harvard's New Tuition-Waiver Plan

Phillip Carter of Slate's Convictions has asked about Harvard's new tuition-waiver program, which he thinks will encourage students to take public service jobs.  Maybe, but I'm not so sure.

Suppose that the third year of Harvard Law School costs $40,000.  Under plan (1), you borrow $40,000 from a bank and give the money to Harvard in return for your education; you owe $40,000 but Harvard pays it, so that you pay $0 back per month as long as you are employed in a sufficiently low-paying public service job.  If you stay in that job long enough, you pay back $0 and the debt is retired.  Under plan (2), you don't borrow anything and don't pay Harvard anything, nor do you have a debt.  But you have a contractual obligation to pay Harvard $40,000 (actually more) if you never take the public service job, and the amount you are required to pay if you breach your pledge gradually declines to $0 as you stay longer in the job.  In short, under plan (1) and plan (2) you pay nothing for your third year at Harvard if you take a public service job for a sufficiently long period time, and you pay something up to $40,000 if you do not.  Incidentally, because the two plans are identical (except for their names and for trivial details, and for the fact that the loan-forgiveness plan may cover more than one year of tuition), the new plan will not have any special incentive effects, for women or anyone else, that the old plan lacked.

Is the Supreme Court Pro-Business?

[Slate has started a new law blog called Convictions. Part of my first post is reproduced below.]

Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:

"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."

-- But how many of them were decided in favor of businesses?  Weirdly, we're not told.  What if businesses won only half the time?  Or less?  Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.

"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."

-- Another meaningless statistic.  Suppose that the additional cases involve disputes between businesses and workers and that the workers always win.  We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests.  (For one case where the employee wins, go here.)

Should Greenhouse Gas Permits Be Allocated On a Per Capita Basis?

 

Suppose that a climate treaty is negotiated and that (as is expected) the treaty provides for a cap-and-trade system: every state will be allocated permits that can be auctioned off or given to firms. Only firms that have permits may emit greenhouse gases. If the correct quantity of permits is created, then (in principle) the socially optimal level of greenhouse gas emissions can be ensured.

One question that has received a great deal of attention is, if this system is put into place, how should permits be allocated? Under the Kyoto model (very roughly), countries that currently emit the most greenhouse gases would receive the most permits; in other words, current emissions are used as the baseline, and states are required to reduce their emissions by a constant amount or not increase them beyond a fixed year. For many people, especially those living in the developing world, this system seems unfair. Why should the richest countries receive the most permits? If poor countries like India receive a small number of permits, then they will have to pay a lot of money to receive permits necessary to develop to rich-country levels, while people in the rich countries do not.

Out of Commission

On Monday, the U.S. military announced it had charged Khalid Sheikh Mohammed and five co-conspirators with murder and other crimes in connection with the 9/11 attacks. It further announced that the defendants would be tried by a military commission at the Guantanamo Bay naval base, rather than a regular civilian court, and that they would be eligible for the death penalty. The defendants have committed horrific crimes and will almost certainly lose at trial. Unfortunately, the military commissions will themselves be on trial as much as the al-Qaida six. And in this trial, the United States runs a serious risk of losing, even if it wins.

Video: Eric Posner v. Jack Balkin: "Executive Function Disorder"

Last week, Eric Posner and Yale's Jack Balkin squared off in a video debate at Bloggingheads.tv, discussing whether the Bush Administration respects the rule of law. You can watch the video below, but we also recommend you visit the Bloggingheads page to read the interesting comments that follow.

Some highlights of the discussion [caveat: the end of the discussion was cut off by technical problems]:

• Has Bush permanently damaged the presidency? (03:46)
• Jack argues that Bush hasn’t respected rule of law (11:14)
• Eric argues that legally wrong can be morally correct (04:01)
• Is Bush against checks and balances, or just really good at them? (04:04)
• Designing democracy to head off dictatorship (05:54)
• Was the Iraq War democratically approved? (03:59)