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Sunday, August 29, 2004

Law - News about Judge Posner

Judge Richard A. Posner has written "a dissent" to the 9/11 Commision Report. The lengthy article begin on the cover of the NY Times Sunday Books section today. He is identified by the Times thusly: "Richard A. Posner is a judge on the United States Court of Appeals for the Seventh Circuit, a senior lecturer at the University of Chicago Law School and the author of the forthcoming book ''Catastrophe: Risk and Response.''' A sample from the article:

The document is an improbable literary triumph.

However, the commission's analysis and recommendations are unimpressive. The delay in the commission's getting up to speed was not its fault but that of the administration, which dragged its heels in turning over documents; yet with completion of its investigation deferred to the presidential election campaign season, the commission should have waited until after the election to release its report. That would have given it time to hone its analysis and advice.

The enormous public relations effort that the commission orchestrated to win support for the report before it could be digested also invites criticism -- though it was effective: in a poll conducted just after publication, 61 percent of the respondents said the commission had done a good job, though probably none of them had read the report. The participation of the relatives of the terrorists' victims (described in the report as the commission's ''partners'') lends an unserious note to the project (as does the relentless self-promotion of several of the members). One can feel for the families' loss, but being a victim's relative doesn't qualify a person to advise on how the disaster might have been prevented.

Much more troublesome are the inclusion in the report of recommendations (rather than just investigative findings) and the commissioners' misplaced, though successful, quest for unanimity. Combining an investigation of the attacks with proposals for preventing future attacks is the same mistake as combining intelligence with policy. The way a problem is described is bound to influence the choice of how to solve it. The commission's contention that our intelligence structure is unsound predisposed it to blame the structure for the failure to prevent the 9/11 attacks, whether it did or not. And pressure for unanimity encourages just the kind of herd thinking now being blamed for that other recent intelligence failure -- the belief that Saddam Hussein possessed weapons of mass destruction.

Another:
The report's main proposal -- the one that has received the most emphasis from the commissioners and has already been endorsed in some version by both presidential candidates -- is for the appointment of a national intelligence director who would knock heads together in an effort to overcome the reluctance of the various intelligence agencies to share information. Yet the report itself undermines this proposal, in a section titled ''The Millennium Exception.'' ''In the period between December 1999 and early January 2000,'' we read, ''information about terrorism flowed widely and abundantly.'' Why? Mainly ''because everyone was already on edge with the millennium and possible computer programming glitches ('Y2K').'' Well, everyone is now on edge because of 9/11. Indeed, the report suggests no current impediments to the flow of information within and among intelligence agencies concerning Islamist terrorism. So sharing is not such a problem after all. And since the tendency of a national intelligence director would be to focus on the intelligence problem du jour, in this case Islamist terrorism, centralization of the intelligence function could well lead to overconcentration on a single risk.
Meanwhile, Judge Posner also has been sitting in as a "guest blogger" at Professor Lawrence Lessig's Blog for the past week. (Lessig, now a law prof at Stanford and previosuly the same at Harvard, clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. He is big in copyright and cyberspace law.) Today is Posner's last day. One entry, from August 25th, begins:
The Technological Juggernaut. As Larry Lessig has long and presciently emphasized, law and technology are substitute methods of protecting an interest. You can sue a trespasser; but it may be cheaper just to put up a strong fence. We used to think that if the technological substitute was adequate, it would be superior to the legal; and in fact the law often imposes self-help requirements to discourage lawsuits. And we never (or rarely) used to think that technology could upset a balance struck by the law; we thought law could cope with any technological changes. The dizzying advances of modern technology have destroyed these assumptions.

File sharing is the obvious example. On the one hand, encryption technology and Internet distribution (that is, selling directly to the consumer rather than through a dealer, enabling the seller to impose by contract additional restrictions on the use of his product beyond those imposed by copyright law) may progress to a point at which the fair use privilege of copyright law is extinguished (and so Lydia Loren has made the interesting suggestion that it should be presumptively deemed copyright misuse for a copyright holder to impose by contract (or, presumably, by encryption) restrictions over and above those authorized by copyright law). It would be like having a fence and gate so secure that the fire department couldn’t enter one’s premises to fight a fire; in such a case the fence would be giving the homeowner greater rights than trespass law, which would permit such entry.

Posted by Marcia Oddi on August 29, 2004 06:07 PM
Posted to General Law Related