The University of Chicago Law School Faculty Blog

White Settlement, Ave Maria, Sex Offenders, and Exclusionary Vibes

The blogosphere has been abuzz with critical commentary on plans to develop a conservative Catholic neighborhood surrounding Ave Maria University's new campus in Florida. (See, e.g., this post, this one over here with lots of comments, and this one with an avalanche of comments.)  By and large, bloggers have been incredibly hostile, dubbing the community a "Catholic Jonestown."  There's been less reaction so far to an interesting New York Times story (registration required) on "White Settlement, Texas" and the controversy generated by a mayor who wanted the town's name changed to something less polarizing. His constituents overwhelmingly voted to keep the name unchanged, and some are now trying to remove him from office. Finally, I've blogged before about sex offender-free subdivisions and posed the question of why so much energy has been expended on excluding sex offenders, as opposed to say murderers or burglars, from neighborhoods.

In a forthcoming Michigan Law Review article that I've just posted on SSRN (you can download it for free here), I connect all of these issues. In that paper, I present a partial defense of Ave Maria's efforts to promote residential Catholic homogeneity; I argue that community names like "White Settlement" can be just as bad as blatant, overt, racial exclusion from neighborhoods; and I suggest that information asymmetries explain the rush to ban sex offenders, but not other felons, from new neighborhoods.   

Cass's CBI: Beyond Marbury

On Tuesday, October 25, Cass Sunstein gave a talk in the Chicago's Best Ideas Series entitled "Beyond Marbury: The President's Power To Say What the Law Is." For those who have seen Cass discussing the judiciary a lot lately, you'll enjoy his foray into the executive branch. Audio of the event is available here. For instructions on listening to podcasts, click here. For more explanation of the content of the talk, see the blurb below the fold.

More Google Print: Fair Use and Inefficient Bundling

Yesterday, Doug Lichtman asked the question “how should we decide when a copyright holder is entitled to earn revenue from a new technology.” He said that he didn’t have an answer yet, and I don’t either, but I do think that we need to talk about fair use and how it can operate as an inefficient bundling of rights.

Consider this set up. We have a book published on paper. All consumers value the paper copy of the book at $8. Some consumers are happy as clams with just paper. Other consumers would love to have a digital, searchable copy of the book to go along with the paper copy. Those consumers would value bundle of a paper copy and a digital copy at $12.

If the copyright owner didn’t fear copying—either of the physical book or a digital copy—what would she do?

Watching TV (and Regulating TV Watching)

How we watch television changed this week. If innovation adoption typically tracks an S-curve, we seem to be swooping upwards. I wish that I could say the same for the regulation of television, but unfortunately legal progress moves much more slowly, if at all.

CBS and NBC announced new deals this week to make available on-demand popular television shows soon after they are regularly broadcast (here in the WSJ (and free this week as the Journal tests expanding its free content) and also here at c|net). ABC has already moved to do this in its deal with iTunes (see my prior post on this), but these deals are even more significant, as you will be able to watch the shows on your TV, and not just your iPod.

Lessig, Google Print, and Movies

There is a lively conversation underway across the Web regarding Google Print. I posted some thoughts a few days ago here, and now (among many others) Larry Lessig and Jim DeLong have joined in, with the conversation continuing in the comments section of Lessig's post and in a second post from Jim.

All that has led me to a question to which I do not yet have a well-formed answer: how should we decide when a copyright holder is entitled to earn revenue from a new technology? Consider, for example, movies. If I make a movie based on your book, and my movie hurts sales of your book, I take it that it is easy to agree that I should have to share some of my movie revenue with you. The new technology in that case displaced sales of the old one, and the law likely should help to dampen that blow, in this case by requiring movie producers to license the work. But what if it were the case that movie sales did not at all diminish book sales?

Don't Flyspeck Sam Alito

It is a source of immense relief to see that the nomination of Samuel Alito to the Supreme Court seems to be attracting less press attention with the passage of time. I regard that as a healthy matter because, truth is, there really is very little that need be said in defense of this nomination. So I will speak once, and perhaps thereafter hold my peace.

Perhaps it's just me . . .

but do you get the sense that the United States is in the process of destroying all the good will and moral leadership its has earned in the international community over the past sixty-five years? At the outset of the war crimes trials at Nuremberg, Justice Robert Jackson, the chief U.S. prosecutor, made an eloquent and remarkable statement: "That four great nations, flushed with victory and stung with injury, stay the hands of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to Reason." Think how far we have shrunk from that aspiration. With secret detention camps, blatant violations of international human rights, administration demands for the authority to use torture, efforts to deny detainees even the most elementary rights of due process and fair proceedings, our government has sunk to a level of immorality we never even contemplated in the Civil War, World War I, or World War II. Don't we, as lawyers, have a professional and ethical obligation to say something? Don't we have a responsibility to demand that our government respect our most fundamental values of procedural fairness, rule of law, and human decency. Is it acceptable for us to live silently through a period in which our government disregards Reason in order to pay tribute to Power? Perhaps it's just me. . . .

The Monorail Episode Redux

Seattle's lengthy flirtation with a municipal monorail came to an end in yesterday's municipal elections.  Voters who had approved pro-monorail initiatives in four separate previous elections finally ran out of patience with a public works project whose budget had ballooned far beyond initial estimates.  By the date of Tuesday's vote, Seattle had spent $200 million on the monorail without laying any track.  A bit over $60 million of this money went toward land and right-of-way acquisition, but tens of millions were spent on consultants' reports, feasibility studies, staffing, hundreds of public meetings, debt service, and, of course, legal fees.  Having shut down the monorail, Seattle voters have absorbed an enormous sunk cost, and Seattle motorists can expect to pay hundreds of dollars each in monorail taxes over the next several years so that the project can pay off its debts.  Anyone who has watched a classic Simpsons' episode might have seen this coming.

There are a number of lessons here.

India: A Democracy’s Near Collapse into Religious Terror, Part VI

The struggle to be investigated is not confined to India: the Hindu right has a powerful and wealthy U.S. arm, which both funds suspicious activities in India, possibly activities associated with Gujarat’s genocidal violence, and foments discord here and in Britain.  Much of the animus of the U. S. group has focused on scholars.  Colleagues here in the United States have been threatened with physical violence, even death, or had eggs thrown at them, when they tell a version of long-ago history that does not suit the agenda of the Hindu right.  Representatives of the Hindu right have made serious, though unsuccessful, attempts to have American universities remove troublesome scholars from assignments involving the teaching of ancient Hindu traditions.  Although I myself have been verbally attacked at times, and although my Dean had one phone call saying that I had no right to teach, the odd thing about the nature of these attacks in America is that a person like me who writes about a genocide today, saying that the Hindu right is complicit in the murders of thousands, is less likely to be targeted than someone who writes about mythology or ancient history in ways that contravene the new orthodoxy.  Part of the story of my book on this subject will involve unraveling the complicated connections between the Hindu right in India and the expatriate community in the United States, which surely need careful scrutiny and further inquiry. whatever one’s political and religious views may be. 

Planning for Catastrophes

Today's newspaper comes with a slick full page ad from Allstate and begins with the headline that "8 out of 10 of the largest U.S. catastrophes have happened in the last four years" (the last 5 words are italicized).  The ad is meant to scare the reader; it even has an illustration of a domino effect crushing a helpless fellow. The ad encourages support for a political agenda that includes increased local police and fire resources, more attention to the purchase of earthquake and other insurance, better building codes, and the creation of integrated reserve funds that would back up insurance companies.