The University of Chicago Law School Faculty Blog

Video: Mary Anne Case on "Feminist Fundamentalism"

On April 9, Mary Anne Case, Arnold I. Shure Professor of Law at the University of Chicago Law School, gave a Chicago's Best Ideas talk entitled "Feminist Fundamentalism."

At a time when so many different religious fundamentalisms are coming to the fore and demanding legal recognition, in this talk Prof. Case seeks to vindicate feminist fundamentalism, defined as an uncompromising commitment to the equality of the sexes as intense and at least as worthy of respect as, for example, a religiously or culturally based commitment to female subordination or fixed sex roles.

Video of the talk is embedded below, or you may download a .mov file. Just want to listen to the talk? An .mp3 file is also available.

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).

Homeownership 2.0 Debate -- Wrapping Up

This week, Rich Schragger and I have been debating my forthcoming piece, Homeownership 2.0. Rich has made a number of excellent points.  In this last post, I want to respond to Rich's most recent post and say a little more about the broader case for H2.0. 

Rich argues that a large fraction of whites prefer racially homogeneous neighborhoods, and that H2.0 investors will respond to consumer demand by resisting integration and engaging in discriminatory practices.  I agree that H2.0 investors (like anyone else) will take measures to avoid bearing financial losses.  I also grant that if enough people hold bigoted housing preferences, whoever holds the offsite investment component for housing will have an incentive to discriminate.  It is interesting, though, that Rich's preferred approach would be to expand leaseholding, which just as surely as H2.0 pushes the investment component to someone other than the home's occupant.  One might think he would similarly worry that landlords will become (in  his words) "a large and powerful class of absentee owners who will have every incentive to intervene in local government to secure their fungible property interests."  Animus-based discrimination requires government intervention regardless of who holds the investment interest, and I see no reason to think that investors will be harder to regulate than homeowners or landlords. 

It is worth asking, however, whether outright prejudice is really the full story.  Suppose that many white homeowners resist integration not because they dislike living near people of another race, but because they fear the reactions of prospective buyers to an integrated community (or because they fear the reactions that prospective buyers will fear that their prospective buyers will have).  These layers of speculation, when coupled with the extreme risk aversion of the undiversified individual homeowner, may result in resistance to changes that actually have a positive expected value for most homeowners.  If homeowners were able to offload risk to investors, they might well stop acting so fearfully.  This, in turn, would alter the signal that investors get about what will or will not subtract value.  In other words, homeowner preferences may end up looking a lot different when we take away the element of investment risk, and investors should be expected to respond accordingly.

I want to emphasize that these potentially salutary effects on homeowner behavior are only one of several reasons why a move to H2.0 might make sense. Affordability is another:  Allowing people to alienate upside potential in their homes can allow  low-income, credit-constrained families greater access to homeownership.  With homeownership comes a stable option to remain in the neighborhood, which encourages site-specific investments in social capital.  Downside protection can also serve important values by ensuring that moves are made for the right reasons.  No longer will people feel that they must sell quickly to avoid a coming drop in home values, or delay transferring to a new job in order to avoid realizing a loss on a home. 

As with any new innovation, H2.0 would carry some risk of unwanted consequences.  I am very grateful to have had this exchange with Rich, because it has usefully fleshed out some of those worries and some possible responses to them. A number of other potential concerns are raised and addressed in the paper.  Certainly, H2.0 would not be ideal for everyone.  Consumers and regulators would confront a learning curve in adapting to it..  But, on balance, adding a new alternative to the slate of tenure choices seems worth a shot. 

Google: As Open and Neutral as It Wants to Be

I hope to return to blogging more regularly now that the college-hunting process is over for my high-school senior son—our family’s first time through what is an amazingly-daunting (and time-consuming) process—and I still have a backlog of other work to clear out, but I can’t resist jumping in to discuss one aspect of the new WiMAX deal announced yesterday between Sprint and Clearwire. As you may know, for awhile, WiMAX has been the next great wireless broadband technology. I say for awhile as it isn’t clear that it is going to ever succeed, but yesterday’s deal is another attempt to take a serious run at it.

That technology isn’t my focus. As part of the deal, Google is reported to be investing $500 million. Google has emerged as serious player in broadband, playing an important role in the last spectrum auction. Google clearly wants to see more broadband capacity and in a post yesterday on the deal, Google emphasized its desire to see an open Internet.

But only so open it seems. As reported in the WSJ yesterday and as is clear from the 9-page press release on the deal, Google’s investment buys it a preferred status on the network. To quote the press release: “Google will partner with the new Clearwire in the development of Internet services, advertising services and applications for mobile WiMAX devices. In addition, Google will be the search provider and a preferred provider of other applications for the new Clearwire’s retail product.” Four bullet points later, we are told that: “Sprint and Google have also entered into an agreement related to Sprint’s mobile services, whereby Google will become the default provider of web and local search services, both of which will be enabled with location information, for Sprint. Sprint will also preload several Google services - including Google Maps for mobile, Gmail and YouTube - on select mobile phones and provide easier access to other Google services.”

I am not sure what all of that means exactly. “The” search provider sounds like their will only be one search provider and a “preferred” provider makes it sounds as if other providers will be relegated to inferior positions. We also know, see Thaler & Sunstein in Nudge, that default settings are very powerful in determining behavior even if the setting can be changed at low cost.

Google has a public position on net neutrality that contemplates prioritizing based on the general type of application but not based on the ownership of the application. I shouldn’t over-read two paragraphs in a press release, but it isn’t clear to me that the positions that Google have bought with Clearwire and Sprint are consistent with its prior position on openness and net neutrality.

H2.0 and the NIMBY Problem

Lee makes some great points in response to my first post.  Here, in my second, I’d like to focus on the NIMBY problem.  I take it from Lee’s paper that one of her goals is to adjust the homeowner’s risk portfolio in order to reduce socially undesirable behaviors.

I agree with Lee that homeowners are risk adverse, but I’m not convinced that outside investors will behave differently.  The theory of H2.0 is that a more diversified investor will act more rationally than a local (less diversified) homeowner.  But it was large lending (and government) institutions that created the standardized mortgages that fueled suburbanization; those institutions refused to lend in “transitioning” or mixed communities, or refused to lend in African-American neighborhoods altogether. Take block-busting, for example.  Lee is betting that investors (unlike homeowners) will not cut and run when the first African-American family moves in next door, but that depends on believing that the homeowner’s reaction isn’t “rational.”  I think it probably is: to the extent that even modest integration is an undesirable feature of neighborhoods for the majority of house buying whites, a rational investor will avoid mixed communities and find the entry of African-Americans a threat to neighborhood stability.  Even an investor insulated from irrational prejudice will have to act consistently with the preferences of a large share of the house buying public.

Lee responds that we can regulate those investors, but I’m not sure it is going to be any easier to regulate the investors than the homeowners themselves.  Indeed, I’d guess that the investors in H2.0 are going to be even more politically powerful than Fischel’s homevoters.  What H2.0 could create is a large and powerful class of absentee owners who will have every incentive to intervene in local government to secure their fungible property interests.  For Lee, fungibility and distance is a plus; I see both as a minus. 

Of course, I also agree with Lee that homeowners often respond to off-site risks in an unproductive way.  Zoning, for example, may be a positive development when used to control for negative externalities, but has serious regional consequences when it is used to restrict the housing supply.  The trick is distinguishing good from bad NIMBYism.  Lee is betting that a new form of land tenure will get us more good than bad.  But I think the link between property forms and local government policies is more tenuous.  The homeowner’s association—a relatively recent invention that now dominates the new housing market—was supposed to solve lots of problems (including controlling for off-site factors), but, as Lee herself has written, it has often come up short.  Instead of tinkering with forms, we may want to rethink the American obsession with homeownership itself or simply regulate the bad forms of NIMBYism directly.   

H2.0 -- Fennell Response, Part II

Now for some thoughts on the third and fourth points in Rich's post. 

Rich worries that giving investors stakes in home values will lead to a cascade of damaging consequences:  exclusionary zoning, racial segregation, and the perpetuation and privileging of homogeneous white suburban enclaves.  Such consequences might come about either through investor pressures on the local political process or through private business practices such as "redlining." These are serious concerns, and ones that I share.  However, I think H2.0 would lead to fewer of these problems than the present homeowner-driven system of local control. 

First, investors are likely to be better bearers of risk than the homeowners who would choose H2.0.  Not only are investors likely to be more diversified, they will have affirmatively self-selected into the investment rather than falling into it simply because they wanted to own a home.  As Bill Fischel has argued in The Homevoter Hypothesis, homeowners tend to be extremely risk averse about their home values, given the importance of the home in their portfolios, and they vote accordingly.  They may, therefore, oppose changes that actually have positive expected values, simply because they are unable to bear any significant variance in outcomes.   Second, the fact that investors are often at a remove from the neighborhood (both physically and emotionally) may make them less likely to be swayed by inflammatory rhetoric about the purportedly negative impacts of what are in fact benign or beneficial land use proposals.  Third, investors are more likely than individual homeowners to hold offsetting interests in other properties or entities, including those in neighboring localities.  Having a stake in many communities rather than just one is likely to rein in the NIMBY impulse to push externalities onto outsiders. 

Of course, it would be unrealistic to imagine that self-interest alone will always cause investors to act in socially optimal ways. Law will need to play a role. Just as discriminatory practices carried out by landlords, mortgage companies, and insurers are prohibited, so too law must prohibit discriminatory practices carried out by investors.  We can do other things as well:  for example, if we worry that big investors will capture local political processes, we can restrict the concentration of investment in a given locale.  This points to another advantage of H2.0:  where curtailing exclusion-minded homeowners has often proved politically difficult, regulating investors should be comparatively easy. 

Finally, the subprime crisis should make us more interested, not less interested, in innovative adjustments to the mix of risks that homeowners accept.  Protection against downside risk is likely to be of increasing interest to both homeowners and lenders, and tightening credit standards are likely to trigger new interest in the sale of upside potential as an affordability tool.  And, while I've focused primarily on distant, diversified investors, the H2.0 model is sufficiently open-ended to accommodate local actors and institutions that would like to invest, quite literally, in their communities. 

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)?

If the insurer can do this, then everyone gets insurance who wants it. If the insurer can't do this, then fewer people will. The insurer can't offer policies for $100, for then the high-risk types will snatch them up, and the insurer, receiving $100 and paying $500 per person, will go out of business. If it offers policies for, say, $250—the average cost for the two types—the business will still probably not be sustainable. All or nearly all the high-risk types will buy the policy, while many low-risk types will be reluctant to pay so much for insurance against a low risk. The average cost will thus rise above $250, while receipts will continue to be $250 per person. Perhaps the insurer will offer only $500 policies, in which case half the population—the low-risk types—must go without insurance that they desire.

Most people agree that insurers should be able to discriminate on the basis of risk. We don't expect a 25-year-old to pay the same premium for life insurance that a 90-year-old must pay.

Suppose, then, that the types cannot be distinguished on the basis of a visible marker, but a simple checkup with a doctor will determine which type a person belongs to, perhaps based on a blood test that determines whether the person currently has a dangerous disease. Should the insurance company be permitted to offer the cheap $100 insurance policy only to people who obtain a doctor's certification that they belong to the low-risk group? If you think that insurance companies should be able to discriminate on the basis of visible markers such as age, you ought to think that they should be able to discriminate on the basis of doctors' certifications. If the insurance company should be able to deny insurance to a person visibly dying from a disease, then it should be able to deny insurance to a nonvisibly dying person on the basis of a blood test. There is no morally relevant distinction between looking at the person's outer shell and looking at his blood under a microscope.

Suppose, now, that a person's risk type is based not on a simple blood test that determines whether he is infected with a particular disease, but on a genetic test that determines whether he has a greater than normal susceptibility to a particular disease. Should the insurance company be permitted to offer the cheap insurance policy only to people who obtain a doctor's certification that a genetic test shows that they belong to the low-risk group? If you think that insurers should be able to discriminate on the basis of visible markers and on the basis of simple doctors' tests for the presence of dangerous diseases, then you should think they should be able to discriminate on the basis of genetic tests. There is no morally relevant distinction between looking at a person's blood for the evidence of infection and looking at his DNA for evidence of susceptibility to a disease.

Or, at least, none that I can find.  The only argument in favor of banning genetic discrimination is that employers and others "misuse" genetic information. If this is true, then misuse of genetic information should be banned, not the proper use of genetic information for the purpose of assigning people to different risk pools. And if genetic information can help determine whether a person is suitable for a particular job, perhaps one that is dangerous for some types of people but not others, then it should not be considered misuse for employers to make hiring and job-assignment decisions on the basis of that information—no more than taking into account that person's visible physical abilities such as strength.

Another concern is that Americans are refusing to take genetic tests because they fear that their test results will be used against them by insurance companies and employers. But this is like saying that we shouldn't let insurers condition insurance on a visit to the doctor's office because then Americans would refuse to see the doctor, lest health information be used against them. The opposite is more likely. As genetic tests improve, insurers would require customers to take the tests if they want to purchase the cheap, low-risk-type policies.  People would have to undergo genetic tests, just as today they have to visit the doctor if they want insurance.

The only explanation for the enthusiasm for GINA is that there is an inchoate feeling among people that there is something wrong with the way the insurance market operates. After all, as long as insurance is permitted, insurers will offer cheaper rates to lower-risk people, which seems unfair to higher-risk people, especially those who are high-risk because of bad luck in the genetic lottery rather than because of a choice to pursue high-risk activities like motorcycle riding.

But this is like saying that it is unfair for employers to offer higher salaries to people who are talented, and whose talent can be traced, as it almost always can, to a lucky outcome in the genetic lottery. After GINA, employers can still discriminate against a person whose genes have bestowed him with a bad smell, awkward social skills, or a weak grasp of arithmetic. GINA does not ban discrimination on the basis of genetic information. GINA bans only discrimination on the basis of genetic information that has not yet manifested itself in observable characteristics or behaviors but that is likely to in the future. There is no sense in this distinction.

Cross-posted here.

H2.0-Fennell Response, Part I

Thanks so much, Rich, for these very insightful comments. In this first post, I'll take on your first two comments. I'll post later on your other points.

So why not just build a better leasehold? First, let me put labels aside and briefly cheer—if I've convinced you that there's a gap on the current tenure spectrum, that's much more than half the battle. Now let's consider what attributes that missing entry should have. I think we agree on at least two things: a long-term option to remain in the home at a fixed price, and tax advantages similar to those available to homeowners. If a tenure form is to provide consumption benefits that rival those of homeownership, it would also need to offer access to a wide array of housing choices (including plenty of single-family housing stock in good condition), and some reasonable measure of freedom with respect to matters like occupants, pets, and decorating. How to get there? First, we'd need Congress to remove the tax advantages for homeowners (I'm all in favor of that, by the way, as I've written elsewhere). That indispensable step probably already shifts us into the realm of the impossible. Still, let's forge ahead.

Next, we must get landlords to make available a lot more (and a lot better-maintained) rental housing than is presently available, with fewer restrictions on tenant behavior, and much, much, longer terms (even 30 or 40 years might be too short). Note that, as a practical matter, these long terms would have to be asymmetric—fully binding the landlord, but terminable on perhaps a half-year's notice by the tenant. It is difficult to imagine many landlords leaping to offer such deals. Of course, the law could force them to do it. But the law cannot force people to be landlords, and if the terms are unfavorable enough, landlords may stop landlording. Perhaps a system of subsidies could be developed to entice people into offering these idealized leaseholds. Still, serious moral hazard problems remain regarding the upkeep of the property (landlords will be tempted to shirk on factors that primarily affect consumption, while tenants will be tempted to shirk on factors that primarily affect the long-term value of the property). We can try to address these problems by letting tenants internalize the gains and losses associated with their own choices on the property and by giving them greater latitude to address on-site matters. But as we continue down that path, we begin to reach something very like H2.0, with landlords serving in place of investors. If a tenure form with these attributes sounds sensible as a matter of substance, scaling down traditional homeownership to generate it seems like a much more psychologically attractive and politically feasible approach.

I don't disagree with your second point, but I don't see how it's an argument against H2.0. Suppose onsite factors had absolutely no effect on the home's investment value or on the consumption value that residents could derive from living there (imagine all homes are identical, indestructible, self-cleaning stainless steel cubes). This would eliminate the moral hazard problems associated with leaseholds, and (tax issues aside) there would be no reason for the person who lived in the cube to also invest in the cube (because nothing she does to the cube will matter, either to her own comfort or to the cube's resale value). H2.0 merely translates that lesson to the messier world in which onsite actions do matter to some degree, by suggesting that the person who owns the rights to gains and losses associated with onsite activities need not also own the rights to the gains and losses associated with offsite occurrences.

I'll be back soon with more.  Thanks again for giving me so much to think about!

H2.0

Lee Fennell’s Homeownership 2.0 is provocative and deeply interesting—as with all her work, it is a pleasure to read. The idea that we could separate on-site and off-site factors in the home purchasing decision is attractive. For me, it is primarily attractive because it might reduce (in Lee’s language) “costly basket-guarding behaviors”: the homeowner’s extreme risk aversion to newcomers and the NIMBY(“not in my backyard”)ism that accompanies it. But I am skeptical that this proposal can get us there for a number of reasons:

First, why slice and dice homeownership when we have a form of tenure – the leasehold – that is better positioned to deal with on-site and off-site risk? I wasn’t quite persuaded that we shouldn't make renting a more robust form of ownership rather than making homeownership somewhat less robust.  Why aren't renters the ideal since they only have the consumption interest in homeownership?  I agree that homeownership has tax advantages and psychological ones, but my immediate reaction to the idea of bifurcating the risk in ownership is to encourage long-term leaseholds and give renters some of the tax benefits that owners currently enjoy.

Second, I wonder if off-site factors swamp on-site factors, conceptually.  All houses are really bundles of off-site characteristics, i.e., location, location, location; the on-site amenities and maintenance mean almost zero if the house is located on the North Pole.  These locational factors are huge, it seems to me—particularly if you factor in access to employment markets.

Third, I worry about giving absentee investors a stake in controlling off-site factors.  Most investors will want a say in community governance, which introduces a lot of complications. What kind of pressure can these investors apply to local governments to adopt new zoning rules, deny development permits, prevent unwanted uses, or disfavor racially-heterogeneous neighborhoods?  In an H2.0 regime, I'd predict increased neighborhood homogeneity as investors (like big developers) create standardized products while trying to limit their risk—investment money would flow to expanding white suburbs, the problem of redlining would reemerge under the guise of this new financial product.  Perhaps Lee is betting that investors will be more rational than risk-averse homeowners, but I’m not persuaded. There is no reason to think that new H2.0 investors will operate any differently than the traditional investment partners of homeowners: banks and mortgage companies.

This leads me to my last comment. Perhaps, in light of the subprime mortgage debacle, this is not the time to create new fungible investment vehicles that will operate on a national scale.  One could make the argument that the local savings and loan, investing in the local housing market, kept capital in the community and maintained the stability of neighborhoods (in part because the investors in the savings and loan often lived there).  Coops and other forms of collectivized equity seem to try to recreate that community-investment link; it is interesting to note that Lee’s proposal tries to dilute that link.

Next Week: Debate on Homeownership 2.0

Buying a home means accepting a large dose of undiversified risk, much of it stemming from factors outside of the purchased parcel and out of the homeowner’s personal control. In this article, forthcoming in the Northwestern University Law Review, Chicago's Lee Fennell presents a new tenure form, Homeownership 2.0 (“H2.0”), that reconfigures the default homeownership bundle. Central to H2.0 is a distinction between parcel-specific influences on home values, like remodeling and maintenance choices (“onsite factors”), and influences on home values that emanate from beyond the four corners of the parcel, such as neighborhood changes and larger housing market trends (“offsite factors”). Fennell argues that investment in onsite factors is essential to homeownership, but that requiring homebuyers to invest in offsite factors as a matter of course is no more sensible than forcing them to invest in some other random, localized venture with variable returns. Indeed, scholars and innovators have already explored a variety of ways to slice, dice, hedge, and trade housing market risk. Using the H2.0 proposal as a focal point for analysis, Lee’s piece steps back to examine how a reduced-risk version of homeownership would fit together with property theory, human cognition, and the social dynamics of neighborhoods and metropolitan areas.

Rich Schragger of UVA School of Law will debate Lee’s paper next week on the Faculty Blog. We hope you’ll join us!

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 law 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.

More Epstein on Health Care

Back in March, Professor Epstein published a piece on the blog of the journal Health Affairs entitled "Health Care Disparities: Deregulation First, Redistribution Last." The piece begins so:

There is an immense volume of literature that expresses an abiding concern with the evident and persistent disparities in access to health care. These disparities are typically a function of race, sex, disability, or income. Once disparities have been documented, the usual approach to reform proposes some new form of intervention that is intended to smooth them out, usually by various kinds of forced access or subsidies regime. Just recently, the Robert Wood Johnson Foundation announced, for example, a nonpartisan commission “to identify and recommend practical solutions to eliminate health disparities and improve health for all Americans.” Unfortunately, the chief consequence of these proposals will be, as it has usually been, to make a health system balkier and less responsive than it had been before. The identified disparities doggedly persist in spite of the best efforts to counter them.

Want to read more? Head on over to the Health Affairs blog to read the rest.

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.

Sunstein Interviewed by "The Glenn and Helen Show"

On Monday, Cass Sunstein appeared on the podcast "The Glenn and Helen Show," discussing libertarian paternalism with host Glenn Reynolds of Instapundit.com. You can listen to the podcast here.

Predicting Crime without the Pre-Cogs?

Crime in Chicago is difficult to predict. Hyde Park is remarkably safer than when I was a student here a decade ago (and in fact is one of the city's safest neighborhoods), but this past week saw a troubling and sad increase in violence in other parts of the city. The Mayor and police attributed some of the increase to the warm weather, but policy makers and citizens seemed surprised at the spike, which goes against national and regional trends. Predicting when crime will occur and the impact that different policing and punishment policies will have on crime is a tricky business. So how are policy makers supposed to decide how many resources to deploy, where to deploy them, and what the impact of, say, a moratorium on the death penalty (as we had here in Illinois recently) will have on crime?

Feeding Disorder

Typepad is currently experiencing issues with its feed production; those who subscribe to the blog via feed readers may not be able to read new posts. We are told that Typepad is aware of the problem and is working on it. We'll let you know when the issue is resolved.

UPDATE, 1:52pm: It appears that Typepad feeds should now be functioning normally. Thanks for your patience.

Jonathan Masur: "Hedonic Adaptation and the Settlement of Civil Lawsuits"

Assistant Professor of Law Jonathan Masur (along with coauthors Christopher Buccafusco and John Bronsteen) recently posted a paper called "Hedonic Adaptation and the Settlement of Civil Lawsuits" to SSRN (the paper will also be published in an upcoming volume of the Columbia Law Review). The abstract is below and the full paper can be downloaded here.

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury - even if that injury is permanent - and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury - will make her whole, in the typical parlance of tort damages - will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase - perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before trial.

Audio/Video: Levmore on "Climate Change and the Battle of the Generations"

Why have we taken so few precautions in the face of threatening climate change? In a February Chicago's Best Ideas talk entitled "Climate Change and the Battle of the Generations" Dean Saul Levmore focused on the difficulty of dealing with a long-off threat in our political system.

The question, he says, is how voters and their politicians can be encouraged to care about problems that can be deferred for consideration by a different electorate or set of taxpayers – but at much higher cost. We know that we should solve most long term problems sooner rather than later, but there are pressures that put off painful solutions. Dean Levmore draws on what we know about “median voters” and median citizens in order to hazard guesses about the coming battle among generations. In this “battle,” young voters will grow increasingly concerned about what is likely to occur as they age – but these voters do not yet have sufficient political power. In turn, arrangements among countries will be seen to depend in part on the disparate age profiles of countries. The topic, in other words, is global warming and the public choice problem of intergenerational bargaining.

Unfortunately, technical difficulties are preventing us from embedding the video in this blog post, but you can download and/or view a Quicktime (.mov) file. If video isn't your thing, you can download/listen to an .mp3 file.

Audio/Video: Richard Epstein Debates Whether Health Care is a Right

On April 9 the Miller Center of Public Affairs at the University of Virgina held an event in their National Discussion and Debate Series at Boston's historic Faneuil Hall. Four participants, including our own Richard Epstein, examined the resolution: "Americans have a fundamental right to health care, and it is the obligation of government to secure that right."

Audio, video, and a transcript of the debate are now available from the Miller Center's website.

The other participants were: JudyAnn Bigby, MD (Secretary of Health and Human Services for the Commonwealth of Massachusetts), Regina Herzlinger (Professor of Business Administration at Harvard Business School), and Dick Armey (Chairman of FreedomWorks and former House Majority Leader).The debate was moderated by Susan Dentzer, Health Correspondent for PBS's NewsHour with Jim Lehrer.

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.