The University of Chicago Law School Faculty Blog

Information Asymmetries and the Rights to Exclude - A Strahilevitz Podcast

On Tuesday, January 24, 2006, Lior Strahilevitz, Assistant Professor of Law, presented the 2006 Ronald Coase Lecture in Law and Economics. The Coase Lecture is given annually in honor of Ronald Coase, faculty member at the University of Chicago Law School since 1964 and winner of the 1991 Nobel Prize in Economics. Professor Coase is considered one of the fathers of law and economics and a great teacher, so this lecture in his honor is given annually by a member of our faculty and geared towards a first year law student's level of understanding of the discipline. Lior gave a very interesting lecture on the topic of "Information Asymmetries and the Rights to Exclude." If you'd like to learn more about what this esoteric title has to do with Ted Williams, the 1951 Giants, and big beefy bouncers named Dmitri, you'll want to listen in here.

You'll hear Lior mention the poster for the lecture, so you can see it here: Download coase_poster_final.pdf. And if you'd like to read the paper the lecture is based on, you'll find it here. And so you know, the first voice you'll hear is Dan Fischel, who, as last year's Coase Lecturer, had the pleasure of introducing Lior.

As always, instructions for listening and subscribing, should you need them, are available here.

Additional Thoughts on Alito

My last post, Why the Senate Should Not Confirm Alito, called forth quite a few comments. Many, perhaps most, drifted off into tangential terrain. But three quite reasonable questions were raised, and I'd like to address them.

First, why didn't I discuss In re Sealed Case, a lower court decision suggesting that warrantless surveillance may be constitutional in foreign intelligence investigations? The reference to warrantless searches in that lower court opinion was pure dictum. In fact, the search at issue in that case had been authorized by a warrant. The decision had nothing to do with the dictum, which was essentially gratuitous.

A New Regulatory Threat to Directed Donations

On January 23, 2006, “the OPTN/UNOS Board of Directors requested that HRSA take this action to give OPTN live donor policies the same status as other OPTN policies.” The Federal Register asks that interested parties submit their comments to Dr. James Burdick, Director,Division of Transplanation on or before February 22, 2006. I believe that this action poses a serious threat to one of the few positive developments in the organ transplant area. The substance of my response to Dr. James Burdick, HRSA jburdick@hrsa.gov reads as follows:

Katrina: An Optimistic Cash Flow Theory of Government?

I confess that I admire the post-Katrina idea of trying to spend money on infrastructure only where critical masses of people settle and resettle.  It is somewhat circular, to be sure, because more people will move to a neighborhood if they know they will be enjoy government money, but it is one reasonable way of directing resources to places where they will do the most good.  Most alternatives for allocating post-disaster aid involve more central planning, and that is likely to be more error prone, politically difficult, and even corrupt.  But if the basic question is how to spend money (and how much to spend) on a population much smaller than originally found and dislocated (which is not the case to the east of New Orleans), some difficult decisions need to be made - unless we are prepared to undo property titles (perhaps in return for just compensation, and perhaps for chits (or more compensation) for those who resettle in the area) and let people settle in as if it were a new frontier.  Only an academic or an overly imaginative politician would pursue that idea.

Comments

As many readers of the blog surely have noticed, some of our posts generate large numbers of "comments" in response. Frankly, that's good news; the purpose of the blog is to engage in conversation about topics of importance, and conversation is best when it is two-way. That said, some of the comments posted in recent days have been (how to say?) more colorful than informative, and thus we are looking for suggestions about how best to ensure that the conversation here remains civil and productive.

Why the Senate Should Not Confirm Samuel Alito

I supported the confirmation of John Roberts and, until recently, the confirmation of Samuel Alito. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed, and that this is a matter of real importance to the nation.

Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts.

Why, then, should the Senate deny confirmation to Judge Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. History teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the President demands excessive authority in his role as “commander-in-chief” and the President and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.

Vouchers Fall in the Florida Supreme Court

It is an open secret that the question of state support for private education, often in the form of vouchers, is one of the flashpoints that divide liberal from conservative thinkers and policy-makers. For conservatives of all stripes, the most dominant feature of the system of public education is that it operates from soup to nuts like a state-created monopoly. To them, which is to say folks like me, state protected monopolies tend to be sluggish and unresponsive, especially when they are beholden as a matter of state law to recognize and negotiate over the terms and conditions of employment with strong teachers’ unions. The results in question are not surprising. System-wide failure that translates itself into expensive and unresponsive education that works far better for the well-to-do families that live in the suburbs than for the urban poor who have neither the wealth nor clout to escape the system.

Presidential Signing Statements and the Tricameral Legislature

I come at the Constitution as an outsider. I don’t know the secret handshakes that the con law guys know. Santa was nice enough to bring our house a copy of National Treasure, and I am now convinced that the interesting side of the Constitution may be the one without the (visible) text. I also bring a West Wing sensibility to the legislative process. In 43 minutes—we netflix West Wing—President Jed Bartlet knocks together a few congressional heads and justice is done as new legislation emerges.

Notwithstanding that, sometimes it is hard not to put fingers to keyboard and so here I find myself. Presidential signing statements are much in the news given the hearings concerning the possible confirmation of Judge Sam Alito to the U.S. Supreme Court. In today’s New York Times, Adam Liptak has a detailed discussion of presidential signing statements and the topic appears in the excerpts from yesterday’s testimony (in particular that by Duke Professor Erwin Chemerinsky).

Here is my question: how do we think legislative history would operate if we had a tricameral legislature? That is, three humps rather than two (even the private law folks know the bad public law jokes). Suppose our legislature consisted of three chambers: how would we write legislative history? As you can guess, I think the answer to that tells us something about how we should think about presidential signing statements.

Sexing the Constitution - Geoffrey Stone

Geoffrey Stone gave a talk in the Chicago's Best Ideas series on January 12, 2006, entitled "Sexing the Constitution." The talk lays out some of the preliminary research that Geof has done for a future book on how sexuality and sexual behavior is treated in constitutional law. This talk deals with the history of how sexual behavior has been seen and treated in various societies over time. There is some frank talk in here, so I wouldn't play this with your young kids in the room unless you want to answer a whole lot of questions for them. Regardless, well worth your time. You can listen to the talk and discussion here.

As always, instructions for listening and subscribing, should you need them, are available here. The blurb Geof used for the publicity for his talk is below the fold.

Confirming Justice Alito?

A few thoughts on the likely confirmation of Judge Alito:

1. A significant bias is built into the system: Those who know a nominee best, or well, are unlikely to be willing to raise questions in public. I have heard from several friends of Judge Alito who do not want to see him on the Supreme Court, but who like and admire him and will not say a public word against him. The reason for their silence is personal loyalty. For lawyers and law professors generally, there is good reason to be circumspect, especially but not only if you know a nominee well: You might well make an enemy, and a lawyer or law professor doesn't much like having an enemy on the Supreme Court. (It's true that many law professors sign petitions against nominees, but the signatories rarely know the nominee personally, and many potential signatories have refrained from signing on the ground that I'm describing.) The same point holds even more strongly for lower court judges, who can easily support, and uneasily criticize, any presidential nominee. Law clerks have the same bias in even stronger form. I clerked for Justice Thurgood Marshall, who was, on many issues, far to my "left"; but even now, long after his death, it's not comfortable to criticize my old boss.