The University of Chicago Law School Faculty Blog

On Ethnification

(The following is a modestly revised and slightly reoriented version of a post that can be found at The New Republic's Open University.)

During discussions of Iraq, many people have suggested that with the fall of Saddam, primordial hatreds have bubbled up to the surface. On this view, the current situation is what it is because long-suppressed ethnic and religious antagonisms are now in full bloom. The problem with this view is that ethnic hatreds are usually not primordial. Part of what we have been witnessing is a kind of rapid "ethnification," in the form of a social cascade.

Climate Change and Standing

The Supreme Court will rule, this term, on whether Massachusetts and other states have standing to challenge the EPA's failure to regulate greenhouse gas emissions from motor vehicles. By all accounts, the justices seem divided on the standing question. Here is an effort to make a little progress on the underlying questions.

Apparently motor vehicle emissions from the US account for about 6% of worldwide greenhouse gas emissions. That sounds like a lot, but if the EPA did what the plaintiffs want it to do, the reduction in climate change would be exceedingly small. No EPA regulation would reduce that 6% to 0%. And because climate change is a product of the "stock" of greenhouse gas emissions, and because such emissions are rapidly growing in China and India (among other places), it is reasonable to say that even if the US did what Massachusetts et al. seek, the increase in global temperatures by 2100 would be essentially unaffected.

Rudolph The Red-Nosed Reindeer: A Tale of Copyright Transfer

Yesterday, my six-year old daughter got a copy of the book Rudolph The Red-Nosed Reindeer. The book jacket describes the book as “The Original Story of Rudolph,” and there is no doubt that the book version differs from the well-known song or the Burl Ives Christmas special. That was interesting, but I found the back flap of the book jacket of even greater interest. We are told that Rudolph was written by Robert May in 1939 while he was working for Montgomery Ward, the old department store chain. Ward used Rudolph as a holiday giveaway.

Free agency in baseball and law

The interesting division of the pie between the Boston Red Sox, Daisuke Matsuzaka, and Japan's Seibu Lions (for those who follow baseball) is a good reminder of the oddities of baseball's contractual and legally sanctioned rules. Players can find the teams willing to pay them the most, more or less - at least at episodic points in their careers - and the deals are enforced by the enterprise (of professional baseball and the players' union) though, again, within limits. And so what emerges are many multi-year contracts, and one question is why we do not find similar contracts for law professors, say, or star associates at law firms. Why not "we really like you and instead of paying you $200,000 for the next year at our firm (with perhaps a bonus based on billed hours), let's lock each other in for 5 years and $2 million. One possibility is that liquidated damages would be needed, in order to serve the function that major league baseball, as a unified organization, plays in the other setting (preventing players from jumping in mid-contract to another team), and such contracts are stymied by our traditional disinclination to enforce them if they look (even ex post sometimes) like penalties. There is of course some attempt, especially at universities, to lock in "players" with forgivable loans, but rarely do these discourage negotiations with other universities.

Secrecy and Self-Governance

The next time our government insists it needs to keep things secret from us, we should remember where we are today. From the day it took office, the Bush administration has wrapped itself in unprecedented secrecy.  It intentionally hid critical information about its deliberations and decisions from Congress, the courts, the press, and the American people. Those who attempted to investigate or disclose what the administration kept secret were attacked and discredited.

For a time, this strategy worked. Protected by a shroud of secrecy, the administration appeared competent and all-knowing. Armed with a monopoly on information, it countered criticism as “ill-informed.” And so, we went to war. By almost all accounts, the war in Iraq has proved to be a disaster.  The sad truth is that if the American people had known what the members of the administration knew when they knew it, many frightful errors might well have been avoided. That is why we have the First Amendment.

Paging Dr. Miles

That’s the Supreme Court calling to say that while the patient is fine, your time grows short.

As Lyle Denniston reported this afternoon, amidst the hubbub over the Supreme Court’s shrinking docket—Linda Greenhouse in the New York Times this morning and Tom Goldstein’s detailed commentary on Nov. 30th—the Supreme Court took five new cases today. Two are antitrust cases (bring the Term’s total to four). One of the new cases addresses antitrust immunities in the context of the initial public offering market; the second takes us back to 1911 and the Supreme Court’s decision in Dr. Miles.

The issue is vertical contracting and whether minimum resale price maintenance is so pernicious that it should be routinely condemned as a violation of Section 1 of the Sherman Act. The Court so concluded in 1911, but economic analysis in the intervening years has indicated that minimum RPM may often be beneficial and courts should therefore conduct a more careful analysis. Presumably, the Court granted cert today to adopt just that view and the good doctor’s near-century run will come to a close.

Subsidizing Good Works (by Students)

The rebuilding of New Orleans is one of several activities that have attracted the energy and generosity of students across the country, and here at Chicago. Let's put aside the question (addressed in earlier posts) of whether that city ought to be rebuilt as is presently contemplated, and ask whether law schools (say ours) ought to subsidize a group of students who organize to travel there on spring break and do work under the auspices of Habitat for Humanity. I think we should be very proud of these students, and it is hard to imagine a teacher preferring any other spring break activity for students. But I find myself resisting the practice of some other schools that quickly give money to the cause.

Promises the Justices Can't Keep?

Once in a while, Supreme Court Justices write dissenting opinions in which they announce that they not only disagree with the majority's ruling, but that they disagree so strongly that they will never recognize the decision as binding precedent.  I wonder, how often do the Justices stick with these promises?