The University of Chicago Law School Faculty Blog

Judge Posner (or at Least His Avatar) Talks to Second Life

Judge Posner is no stranger to new technology, both personally and professionally. He's taking it to new heights, however, in early December, when he will enter the world of Second Life and his avatar will be interviewed about his book Not a Suicide Pact. For more information and reservations, visit New World Notes.

If this post was complete gibberish to you, you may want to read up on avatars and Second Life.

"If You Are Not Pleased with Our Service, You Do Not Have to Pay"

A few weeks ago, I traveled with my family to Indiana. We stopped for one night at Hampton Inn. At the reception desk, we noticed a sign saying something like "If you are not pleased with our service, you do not have to pay." Legally speaking, that means that a guest can walk away without paying. Such behavior could be quite rewarding: the rate for a suite is about $200 a night, so a three-day-stay without paying could be a real temptation. How can the hotel afford such a policy? Before responding, let me say first that neither I nor my colleagues at the Law School with whom I talked have witnessed such a policy actually carried out by a hotel. Most of us have seen something similar in restaurants, where a sign says something like "Don't pay if you did not like our food." But the risk of not being paid for a pizza is not comparable to the risk of losing a few hundred dollars!

Reading Twombly Tea Leaves on Boylston Street

Yesterday, the Supreme Court heard arguments in Bell Atlantic v. Twombly, one of two antitrust-focused cases this term. (The second case, Weyerhaeuser v. Ross-Simmons is being argued today (Jason Harrow at SCOTUSblog has a good preview of that case)). Twombly focuses on the pleading requirements established by the Federal Rules of Civil Procedure, and in particular, how those rules will apply to plaintiffs bringing antitrust complaints. With the Supreme Court’s new policy of same-day release of the transcripts of oral argument, we can now guess in real-time at what the Court will do. In truth, we could guess before (and did), but now we have more than second-hand accounts to go on. What should we make of yesterday’s argument?

Harcourt: Against Prediction

On Thursday, November 16, Professor Bernard Harcourt gave a talk in the Chicago's Best Ideas series entitled "Against Prediction: Punishing in an Actuarial Age." He has a new book out with a similar title (Against Prediction: Profiling, Policing and Punishing in an Actuarial Age) and presented part of this material to the students. The talk was a very interesting look at law enforcement profiling and whether it works. Professor Harcourt approached this empirically, disussing whether it works on a practical level, injecting a new element in a debate that is traditionally about morals and ethics.

You can listen to the talk here, and view the Power Point slides used in the presentation here. Download harcourt_against_prediction_powerpoint.ppt (The PPT slides will be very helpful in following along, as several charts and graphs are referred to.) The description used for the publicity is below the jump.

Give Thanks for those (Soon to Disappear?) Benefits

A striking thing about the jobs most commonly chosen by newly minted graduates of elite law schools, is that they come with valuable fringe benefits. Base salaries are widely imitated and therefore fairly uniform, but firms compete a bit more when it comes to benefits. Health plans, inclusion of same-sex partners, fitness centers, part-time work options, and other things are on the minds of employers and employees, but one particularly expensive and nonuniform benefit is parental leave. At Thanksgiving dinner this year I sat next to a new associate at a Boston firm who seemed thrilled that her firm offered maternity and paternity leave, for biological or adopted children, of three paid (plus benefits) months. The law requires only some leave without pay, so we can think of this as a benefit worth more than $50,000 per child. I think my friend's reaction was partly social/political, as she prefers a world in which parenting is encouraged, or at least not penalized, in this manner, and I think it is also economically rational. She does not think of this costly benefit as coming out of her paycheck, although I think it unlikely that she cashes in on this benefit with this employer, because she correctly sees her own compensation as moving in step with other firms' base salaries. I think her reaction would be the same even if the associate in the office next door had five children in the next five years, and even if that associate's partner also received paid leave from his or her employer. Of course, the birthrate in this group is likely to be low. The benefits come out of the partners' returns, though they may of course encourage new associates to join this firm.

Federalist Society Speaker Discusses Rational Basis Jurisprudence

On November 1st, the University of Chicago Law School chapter of the Federalist Society presented a discussion of the flaws and failings of current rational basis jurisprudence. Clark Neily of the Institute for Justice spoke; Professor Cass Sunstein provided commentary.  You can view the video here. (Many thanks to Peter Ternes for videography.)

US Involvement in the Darfur Conflict

On Wednesday, November 15, 2006, the Earl B. Dickerson Chapter of the Black Law Student Association at the University of Chicago Law School hosted a discussion on the merits of US involvement in the Darfur conflict.   Eric Posner, Kirkland and Ellis Professor of Law at the University of Chicago Law School, Jide Nzelibe, Assistant Professor of Law at Northwestern University School of Law, and Matthew Lippman, Professor at the University of Illinois, Chicago, discussed US involvement in Darfur within the legal framework governing international humanitarian intervention. You can listen to the panel discussion here.

What Do and What Should Judges Do?

Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication."  (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.)  The podcast of that event is now on-line here.  Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights." 

The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication."  I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241).  Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.

Cass Sunstein on Thurgood Marshall's Conception of Equality

The University of Chicago Law School chapter of the Black Law Students Association is hosting a wonderful series of talks this year in honor of the 40th anniversary of Thurgood Marshall's appointment to the Supreme Court. The first of these is by our own Cass Sunstein, who clerked for Justice Marshall in the 1979-80 term. Speaking to a very full room, Cass told some very amusing stories about Justice Marshall and discussed Marshall's conception of equality. The talk was fantastic and we hope you enjoy it. Listen to the talk here. [Edited to fix missing link. No, not that kind of missing link.)

We'll be using this Thanksgiving break to catch up on some of our podcasts from November. Hope you enjoy them!

Closing the Mobblog on The Piracy Paradox

Thanks to Kal Raustiala and Chris Sprigman for their posts this past week on their forthcoming paper The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Thanks also to our virtual participants Shyam Balganesh, Wendy Gordon, James Grimmelmann, Amy Kapczynski, Michael Madison, Bill Patry and Tim Wu.