The University of Chicago Law School Faculty Blog

Predicting Country Size, Number, and Confederation

There is a literature on the size of nations, and therefore on their number, with some of the best work arguing for an emphasis on the tradeoff between heterogeneity and economies of scale. If we think of modern history as consisting of a long period of consolidation, or merger of nations, followed by a period of dismemberment, independence movements, or increased numerosity, then the story is one of technological changes that made increased size more valuable and then less valuable.  (The facts can be disputed, if only because there is room to argue about the definition of a country.  But this is not the place.) Alternatively, preferences might have become more homogeneous and then less so.  If we think of preferences as including a taste for peace, or something else that might be cheaper to achieve with greater country size, then the analysis can get a bit circular even as it gains plausibility.

Jane Jacobs

Jane Jacobs, author of The Death and Life of Great American Cities, died yesterday. Jacobs' great book is full of implications for various fields, including law. Her work has many themes and nuances, but it can be taken as a celebration of the diversity, the spontaneity, and even the wildness of the great cities -- where you might encounter, on any given day, people and activities that surprise and even astonish you, and where the diversity itself provides a kind of commonality for people from all walks of life. Among other things, Jacobs' book helps to illuminate the public forum doctrine in first amendment law, which says that parks and streets must be left open for expressive activity: Parks and streets provide unanticipated, unchosen encounters at the same time that they offer common experiences for heterogeneous people. Both the unanticipated encounter and the common experiences are valuable for a democracy. In fact democracy itself seems to me one of Jacobs' basic topics.

Animal Welfare and Economic Analysis

The parent of economic analysis of law is Jeremy Bentham, and the theoretical foundations of economic analysis can be found in utilitarianism (originally elaborarated by Bentham). Economists like to measure utility in terms of "willingness to pay," which (to be sure) does not perfectly capture utility. But if people are willing to pay a lot for something, we can usually assume that they really want it, and if they are willing to pay little, they probably do not want it much (unless they are poor). In short, economists are best seen as applied utilitarians, trying to operationalize utility, which is ultimately their master concept. The idea of "efficiency" is an administrable approach to utility.

Here is the puzzle: Why have so few economists, and economic analysts of law, shown even a little interest in animal welfare? Bentham, sometimes described as the first economic analyst of law, was a passionate champion of animal welfare, analogizing the current treatment of animals to slavery and arguing that the question is not whether animals can talk, but whether they can suffer. It is true that animals are not willing to pay much to promote their welfare, because they lack money; but children and poor people also lack money, and economic analysts of law have a lot to say about children and poor people.

From private conversations, I know that many economically inclined lawyers (whatever their politics) are quite interested in animal welfare, and (like Bentham) in the reduction of animal suffering. It's clear that for those who care about utility, animal welfare is an important topic. But there's almost no economic literature here, on the positive or normative sides. Why is this?

Jeff Leslie on Animal Treatment and Food Labeling

Jeff Leslie recently participated in a conference at Duke Law School on Animal Law, particularly on a panel entitled "Animal Agriculture and the Law." Professor Leslie is one of the faculty members involved in our Chicago Project on Animal Treatment. Duke has put videos of the entire conference on line (including the other panels on animal rights and promotion of animal welfare), and you can see the animal agriculture panel here. The entire panel is worth your time, but if you specifically want to see Jeff, his presentation is about a paper he is publishing with Cass Sunstein on fodo labeling and starts about 30 minutes in. A draft of the article (forthcoming in Law and Contemporary Problems) entitled "Animal Rights without Controversy" is available through SSRN.

Rorty on Posner and Dewey

Each year, the Law School is honored to have a visiting scholar deliver the Dewey Lecture in Law and Philosophy. As Bernard Harcourt said in his introduction to the lecture on April 10, 2006, if you were dreaming about who you would want to give the Dewey Lecture, you'd choose Richard Rorty, Professor of Comparative Literature and Philosophy at Stanford University. Rorty, an alum of the college at the University of Chicago, is one of the great titans of philosophy and generally considered to be a philospohical pragmatist. His Dewey Lecture, entitled "Dewey and Posner on Pragmatism and Moral Progress," was very well attended and very enjoyable, and if you listen closely you'll hear Richard Posner himself ask the very last question. Listen to the lecture here, and podcast instructions are available here.

More Harcourt, This Time About Teens and Guns

Professor Bernard Harcourt delivered a fascinating Chicago's Best Ideas Talk on April 5, 2006, entitled "Language of the Gun:  A Semiotic for Law & Social Science." Professor Harcourt's talk was based on his recent book Language of the Gun: Youth, Crime, and Public Policy and covered some fascinating, if often disturbing, data from interviews with incarcerated teens about their opinions about guns. Professor Harcourt analyzes the particular language the teens use to talk about guns and the associations their words have, and what the implications are for public policy. WARNING: while this talk is certainly worth your time, it does include some explicit language (as Harcourt repeats some of the comments the study participants made) and violent subject matter. This may not be work-appropriate and is almost certainly not appropriate for young children.

You'll benefit from looking at Professor Harcourt's slides along with the talk, as some of the charts are discussed in detail, and the opening photos bring the talk into even clearer focus.Download harcourt_language_of_the_gun.ppt. You can listen to the talk here. Instructions on listening to the podcast are here. The blurb for Professor Harcourt's talk is below the fold (the text of this is a bit explicit as well).

Presidential Declassification of Previously Classified Material

Many issues are raised by the claim, by "Scooter" Libby, that President Bush declassified and thus authorized disclosure of previously classified material relating to the question whether Iraq had, or was seeking, weapons of mass destruction. Some of these issues have long-term as well as short-term interest, so it is worthwhile to try to sort them out.

It appears to be true that the President has the legal authority to declassify classified materials however he chooses. This conclusion is supported by dicta in Department of Navy v. Egan, 484 US 518 (1988), and it is consistent with the historical fact that classification and declassification decisions have been made by the President. (On the relevance of historical facts, see Justice Frankfurter's separate opinion in The Steel Seizure Case.) To be sure, Congress might have the power to limit the President's power to classify and declassify (though the President is likely to resist any such limitation on constitutional grounds) -- but no such limitation appears to be in place.

Barry Bonds II

In yesterday's post, I tried to take up the question of the degree to which Baseball's actions would be influenced by the threat of litigation, or the sort of thinking lawyers engage in. The Comments were provocative and much appreciated. Today's post addresses the likelihood of settlement and, in passing, addresses the Comments and inclination of many readers to take the high moral, or deterrence, ground.

Harcourt Podcast on Actuarial Justice

Professor Bernard Harcourt is a man of many talents. What you may not know is that one of those talents is fluency in French.  He recently appeared on a Radio France program called Le Bien Commun, an hour long program which is the leading in-depth talk-show on law and culture in France.  The program Professor Harcourt appeared on was titled "La Justice Actuarielle" (or "Actuarial Justice").  The other participant was Gilles Chantraine, who is a sociologist and CNRS member at the CESDIP (Centre de Recherches Sociologiques sur le Droit et les Institutions Pénales).  They discussed Professor Harcourt's forthcoming book, Against Prediction:  Profiling, Punishing, and Policing in an Actuarial Age. The book and radio program focused on the use of actuarial methods in the field of crime and punishment.  Actuarial methods refer to the use of statistical methods on large data sets of offenders to predict future dangerousness and to administer individual criminal justice outcomes. Such methods increasingly permeate the crime and punishment area--from parole decision-making and sentencing of sex offenders and other convicts, to prison classification and police profiling. While a handful of academics decry the rise of the actuarial in criminal justice, many citizens and policy makers today have embraced the trend. To many, it simply makes common sense to base the length of a criminal sentence on the likelihood of future recidivism or to identify which tax filers to audit on the basis of their likelihood of cheating. Professor Harcourt is a critic of the trend and offers, in the book and radio program, three specific critiques of the actuarial turn.

The radio program can be listened to (in French) here. Professor Harcourt's research and forthcoming book on the topic is summarized here. If that's not enough links for you, podcast instructions are here. If you would like to know more about the program Professor Harcourt appeared on and a related conference, information is below the fold.

Barry Bonds

I doubt that law should have much to do with how major league baseball runs its show, how basketball games are refereed, how universities are run, and so forth, though of course law intervenes frequently and in strange places, especially where legislators are eager to tread, where governments can influence through expenditures, or where some interest groups care to encourage governmental or judicial involvement. Still, I don’t think it terribly likely that Congress or any judge will much influence the question of whether Barry Bonds is denied the records he has set thus far, or the lifetime homerun record he is likely to reach soon enough. If he were found to have used illegal substances (whether illegal under law or under his sport’s rules) he might be denied a formal record, put into the history books with an asterisk (though that seems silly in this case), or kept out of the Hall of Fame (like the gambler, Pete Rose), but these steps are more likely to be generated by the politics and economics of baseball than to be the product of a statute or judicial decision. It is a bit like asking whether a court or Congress is likely to determine the winner of an Academy Award.