The University of Chicago Law School Faculty Blog

Gay Marriage Timing in New Jersey

Suppose that a multimember court has decided (a) that a state must allow same-sex marriage, (b) that a state may not continue affirmative action programs, or (c) that a popular environmental statute is unconstitutional. Suppose too that the opinion is written -- and that a national election will be held in two weeks. Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

It is worth raising this conclusion because the New Jersey ruling (not requiring the state to allow same-sex "marriage," but requiring same-sex couples to be provided with the material equivalents of marriage) was issued within two weeks of the national election, and some people believe that it will have electoral salience. As far as I am aware, there is no serious scholarship on the question whether and when it is appropriate to wait to issue a controversial ruling until after an election.

Consider two possible positions:

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after.  "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

I tend to think that under certain circumstances, (2) is correct; but it is a reasonable objection that voters deserve to hear about the ruling when they are deciding how to vote. Whether the objection is reasonable, as opposed to right, may depend on whether the timing will improve voters' information, or instead distort the whole process by making one development especially salient.

Gay Marriage in New Jersey

The New Jersey Supreme Court held today that denial of the legal benefits of marriage to gays and lesbians violates the equal protection guarantee of the New Jersey Constitution. At the same time, the court declined to hold that gays and lesbians have a right to "marry." The court concluded that a right of equal access to the legal benefits of marriage does not necessarily entail a right to characterize the relationship as "marriage." Hmmm.

Among the many intriguing facets of this decision is that the vote was 4-to-3. The three dissenting justices did not argue that gays and lesbians do not have a right to the legal benefits of marriage; rather, they argued that gays and lesbians are also entitled to equal access to the word "marriage." Thus, the court was unanimous in holding that New Jersey could not constitutionally (under the state constitution) deny gays and lesbians the legal benefits of marriage.

Playing Google Jeopardy

We know how Jeopardy works: they give you the answer and you have to supply the question. Google Jeopardy is a variant on that: the answer is the University of Chicago Faculty Blog, but what is the question? With Sitemeter’s help, you can often see exactly what search led someone to the faculty blog. Click on our Sitemeter indicator—perhaps during a slow workshop—and look around a little. Try the following searches:

· Google for “mills view of sex-selective abortion” 

· Google for “barack obama”

· Google UK site for “my sweet lord chiffons”

 

The $40 Entree: Have You Been Framed?

This morning’s New York Times reported on the breach of a new price-point in restaurants: the $40 entree. As a parent with three kids at home, I read stories of this sort for the same reason that I read National Geographic when I was a kid: to learn about exotic locations that I am not likely to visit anytime soon.

For me, the interesting point of the story is the framing effect of the $40 entree: putting a $40 entree on the menu makes it much easier for diners to order the $35 entree and that pushes up average checks. A restaurant won’t necessarily sell much of its highest price item, but that isn’t the point, if diners are perfectly comfortable ordering the second or third most expensive item on the menu, but will decline to order the most expensive item. Standard economics says that the existence of a choice that you would reject anyhow shouldn’t influence choices that you actually make, but the evidence on framing suggests that is wrong. (If you are looking for more on this, read Barry Schwartz’s The Paradox of Choice.)

 

Should Your City Want Municipal Wireless?

The Federal Trade Commission recently released a staff report on municipal wireless (“Municipal Provision of Wireless Internet”). The report is a lot of on-the-one-hand and on-the-other, but the report does a good job of laying out the current legal landscape and the various models of muni wireless that communities might pursue. The bottom line for the report is a decision tree (p. 48) intended to help municipalities assess the possibility of municipal wireless.

 

But the FTC analysis starts in the wrong place, and the key mistake is in not separating carefully a municipality’s role as service provider from its role as input provider. Start with the latter. As I emphasize in a recent paper on municipal wireless (“Who Should Regulate Entry into IPTV and Municipal Wireless?”), many municipalities will have dense networks of physical assets that will be attractive to a wireless entrant. City light poles are a good example: they are all over and sufficiently close that even short-distance wireless technologies (such as Wi-Fi) can rely on them.

 

Martha Nussbaum Talks with Akbar Ganji

Chicago Public Radio has partnered with the University of Chicago (among other organizations) in a project called Chicago Amplified. From their website: "Chicago Amplified is a Web-based audio archive filled with diverse lectures, conversations, panel discussions, forums and other educational events sponsored by community organizations and institutions throughout the Chicago region and presented here for audio streaming or download. The goal of this project is to make some of the most interesting and informative public programs taking place throughout our community widely available. Chicago Amplified allows you to listen to these events again, or discover them for the first time."

Among the University's first entries in Chicago Amplified is a conversation with Akbar Ganji and our own Martha Nussbaum. Gangi is Iran's most prominent political dissident and writer of A Republican Manifesto, laying out the basis for a full-fledged democracy in Iran. You can listen here to their conversation, and also visit the site for the University of Chicago's contributions to Chicago Amplified.

Chevron as a Voting Rule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain.  Doctrinally, there are many ambiguities and uncertainties about the nature of the inquiry at the first and second steps of Chevron, including questions about the admissibility and weight of various legal sources. More recently, the United States v. Mead decision and its successors have produced added complexity, and some confusion, by requiring an elaborate legal inquiry to determine whether Chevron applies in the first place. In practice, recent evidence suggests that Chevron has increased overall deference to agencies, but also that Chevron’s effect varies markedly with the ideological and political preferences of the judges who apply it.

These problems arise, in part, from a dubious premise of the Chevron enterprise, one that should be rethought. The dubious premise is that the legal system should adopt a doctrinal solution – the Chevron rule – for what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous. In this paper, Adrian Vermeule, and I explore an alternative, which is to adopt an institutional solution to the institutional problem. The institutional solution is to cast Chevron as a voting rule, thereby institutionalizing deference to administrative agencies. The precise details of the voting rule might vary, and we discuss different versions. To motivate the discussion, however, imagine a voting rule stating that where a litigant challenges agency action as inconsistent with an organic statute, the agency would prevail unless the judges, asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajority vote – say, by a 6-3 vote on the Supreme Court, or by a 3-0 vote on a court of appeals panel. Our thesis is that a voting rule of this sort would produce more benefits and fewer costs than does the doctrinal version of Chevron.

Barack Obama

Now that the school year is well underway, it might be worth noting that a new book is about to appear from a member of the faculty. But against all odds, his last name isn't Posner (though the Judge and the Professor do have recent books out). It's Obama.

There is a lot to say about Senator Obama and his time at the University of Chicago Law School. (He remains affiliated with the law school, and he has an office on the fifth floor -- though the list of faculty members notes, in a way that seems at once proud and forlorn, that he is now "out of residence.") He was, and is, widely admired by students and faculty alike -- and entirely across political divisions. How well I remember past elections in which faculty members, who disagreed on a great deal, agreed that Obama would be a magnificent addition to the United States Congress. I think their agreement resulted from Obama's character (he's a genuinely wonderful guy), his evident ability and sheer excellence (for example, he's a terrific teacher, and we tried to convince him to join the faculty full-time on several occasions), and his independence and unpredictability (he toes no party line; he knows how markets work, and how government can make things worse).

To say the least, it has been extraordinary to see what has happened to our colleague, not long ago teaching early am classes and asking us to join him for breakfast, in the last few years. Will his next few years be extraordinary too? Stay tuned. For now, congratulations to Illinois' junior senator on his new book.

Samaha Previews the Supreme Court Term

Each year, the Law School asks a faculty member to deliver a "First Monday" lecture in several cities in honor of the opening of the Supreme Court term. These lectures vary wildly in topic and scope, depending on what the speaker thinks the upcoming term will hold. Needless to say, the Supreme Court has been the subject of much discussion since the 2005 First Monday lecture, so Adam Samaha's talk called "Meet the New Boss" was both well-attended and well-received. We've had several alumni ask for a podcast of this talk, and we're delighted to bring it to you now. As always, podcast instructions are here.

Boardroom Confidentiality

In the wake of the Hewlett-Packard "scandal," corporate boards and their advisors are scurrying about in order to try and avoid future, similar difficulties.  In principle, the advice is simple: engage in full and frank discussions, but leave outside contact to a spokesperson or the CEO. In the event of a leak by a board member, discuss (and do so in advance), and if necessary apply some pressure by reminding board members of the possibility that their "disclosures" will amount to civil or criminal violations of the securities laws, or pointing out that renomination to the board is unlikely for someone who can not kep confidences. The advice usually extends to referring the matter to the general counsel or outside counsel, with little advance work on what exactly will happen if the matter is not respolved in this manner.