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.

Student Blogger - Summer WIP: Todd Henderson and the "Nanny Corporation"

Professor Todd Henderson kicked off Chicago's Summer Works in Progress events with a presentation of his latest project, "The Nanny Corporation and the Market for Paternalism." Henderson identifies corporate nannyism as the increasing trend amongst businesses to regulate the seemingly private conduct of their employees, on the grounds that it imposes negative externalities on other members of the pool. For example, where employees all pay into company health insurance programs, non-smoking employees cross-subsidize the increased health care costs of their smoking fellows. Non-smokers thus have an incentive to agitate in favor of policies which would reduce these costs, such as differential insurance rates for smokers versus non-smokers, or even an outright prohibition on smoking. The effect of this demand is to create a "market for paternalism", which both corporations and government can seek to meet.

Importantly, Henderson locates the incentive for this sort of "nannying" activity not in any particular moral or social ideal held by the regulator (governmental or corporate), but rather as an extension of self-interest. Nannying reduces overall costs and responds to demands by employees (or citizens) who don't want to bear the costs of cross-subsidization. This contrasts with many accounts of proto-corporate nanny entities (such as "company towns"), which often focused on a sort of moral zealotry as the primary motivation for their existence.

Video: Shakespeare and the Law Conference

Last month, the Law School hosted an interdisciplinary conference dedicated to exploring the legal dimensions of Shakespeare's plays. The keynote conversation, featuring Justice Stephen Breyer, Judge Richard Posner, and Professors Martha Nussbaum and Richard Strier, was fascinating, but the real highlight of the weekend was watching the participants -- including Justice Breyer -- perform scenes from the Bard's plays, including Measure for Measure, As You Like It, and Hamlet. Video of the keynote and the scenes, is embedded after the jump.

Student Blogger - Ambiguity about Ambiguity

Professor Anup Malani on how we know when we don't know

What are judges supposed to do when statutes are ambiguous? This question is the source of endless quantities of legal scholarship and is at the core of public debates over the proper role of judges. While the is obviously important, it is hard to see how anything really new could be said. Asking this question - how to deal with ambiguity - presupposes another, however: that ambiguity exists in the first place. How do we - or any given decisionmaker - know when a text is ambiguous? Relatively little academic work has been done on this question, which would seem to be at least as important.

Chicago's Anup Malani, along with co-authors Ward Farnsworth and Dustin Guzior (both at Boston University) attempts to fill this gap with his paper Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation, which was presented at this week's Works in Progress (WiP) talk at the law school. The paper is based on an empirical study of nearly 1,000 law students.

Epstein Debates the Employee Free Choice Act

Over at the Federalist Society website, Richard Epstein today participated in a discussion with Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP), and Patrick Szymanski (Change to Win) to debate the policy and constitutionality of the EFCA. See the complete discussion here.

Sonia Sotomayor and the Hypocrisy of "Conservative" Critics

The May 30, 2009, New York Times contains two interesting articles about Sonia Sotomayor. One deals with her views of affirmative action, the other with her views of campaign finance regulation. According to these articles, Judge Sotomayor has been supportive of both policies. What this means in terms of her predicted behavior as a Justice of the Supreme Court is that she will tend to uphold the constitutionality of both policies. The articles report that conservative critics of Judge Sotomayor have begun to attack her for her positions on these issues because, by doing so, she is allegedly making inappropriate policy judgments rather than applying the law in a cautious and respectful manner.

This criticism reveals the inconsistency and, dare I say, hypocrisy of the contemporary conservative stance on constitutional interpretation. Conservatives insist that their heroes – Justices Rehnquist, Roberts, Scalia, Thomas and Alito – are judicial “passivists,” rather than judicial “activists,” who “strictly construe the Constitution,” do not substitute their own views for those of the Framers, and generally defer to the judgments of the democratically-elected branches of the government. Most fundamentally, these conservative Justices do not use the power of judicial review (the power to declare laws unconstitutional) to smuggle their own policy preferences into their interpretations of the Constitution. That vice, they say, is the vice of liberal activists.

Student Blogger - Can Charities Be Too Rich?

Professor Takeshi Fujitani on charitable wealth accumulation

Charities generally exist to help the poor - but they themselves are sometimes quite rich. Is this a problem? Some people seem to think so. Universities and other non-profit organizations with substantial endowments have been criticized for failing to provide "public benefit". The sharp decline in such endowments over the past year has of course muted this criticism, but the underlying issues remain - many nonprofits still have vast endowments, and these are likely to grow significantly in the future. But what, exactly, is the problem with this? Are charities that build reserves doing anything wrong - should they spend now instead? If we think they should be making different choices, should we change our policies towards tax treatment of charitable giving to realign incentives?

Professor Takeshi Fujitani addressed these issues in his recent paper Does the 'Timing of Charity' Matter?: A Theoretical Reexamination of Tax Policy for Endowed Nonprofit Organizations presented at last week's Works in Progress (WiP) talk. In the paper and talk, he argued that criticism of charitable wealth accumulation is not particularly focused, but that it may have some validity when examined closely. He further suggested that tax subsidies for such wealth accumulation can be separated from those for charitable giving in general, and that the justifications for the former subsidy are much weaker.

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 - Claire Priest Reassesses the Death of the Fee Tail

The fee tail, as any first year property student knows (or knew, then promptly forgot), is a type of interest in property that renders it inalienable, instead automatically passing on to the owner's heirs upon his death. Though a long standing component of English property law, the fee tail is no longer enforceable in the United States, and indeed was relatively quickly subject to attack after the Revolutionary War. The common explanation for the fee tail's death was that it offended America's incipient republican spirit -- enabling the creation of large hereditary estates which too closely resembled European aristocracies.

In her presentation to the last session of this year's American Legal History Workshop, Northwestern Law Professor (joining Yale's faculty this summer) Claire Priest sought to complicate that explanation and offer a different picture for why the fee tail withered away soon after the revolution. Acknowledging that republican ideals may have played some role, Priest focused her inquiry on a different aspect of entailed estates -- their shielded status from creditors -- and how that affected the way that fee tails were employed in the revolutionary era.

Obama's Speech on National Security: "The Most Difficult Issue We Have to Face"

In his speech on Thursday about Protecting Our Security and Our Values, President Obama touched on many of the challenges posed by the threat of terrorism. I want to address one challenge in particular: What should we do with "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people." This is a fundamental question, because it cuts to the very heart of the concept of preventive detention.

The President explained that some detainees at Guantanamo will be be prosecuted for crimes in the federal courts of the United States. To the extent this occurs, it should be constitutionally unproblematic. The President explained further, however, that some detainees cannot realistically be prosecuted in the federal courts, because the procedural and evidentiary rules of those courts would require the exclusion of evidence that would be essential to secure their convictions.

This is most obviously the case with respect to evidence obtained through "involuntary" statements (either by the defendants or others) and various forms of hearsay evidence (for example, X testifies at trial that Y said that Z committed a terrorist act). Such evidence ordinarily would be inadmissible in federal court because its use in a criminal proceeding would violate the privilege against compelled self-incrimination, the due process clause, and/or the defendant's constitutional right to confront the witnesses against him.