The University of Chicago Law School Faculty Blog

Chinese bishops and church-state separation

Although its government likes to claim otherwise, and hopes we won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the United States Commission on Religious Freedom stated, in its 2006 Annual Report, “The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief." And so, it was probably more disappointing than surprising when the government-controlled puppet-church, the "Chinese Patriotic Catholic Association," last November purported to ordain a new bishop for Catholics in the Xuzhou Diocese, about 400 miles south of Beijing.

Why should we care? Is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries  - the Holy See and the People's Republic - picks Chinese bishops?

Yes, there is.

How FDR Paved the Way to Brown v. The Board of Education

In the second of a series of lectures at the Law School commemorating Thurgood Marshall’s appointment to the Supreme Court, Kevin McMahon of Trinity College discussed “How FDR Paved the Way to Brown v. The Board of Education.” Professor McMahon, author of Reconsidering Roosevelt on Race, puts forth evidence that through his appointments to key judgeships and through the retooling of the Justice Department, President Franklin Roosevelt intentionally constructed the legal framework that made the outlawing of segregation possible. Listen to the talk here. (If you would like to follow along with Prof. McMahon’s PowerPoint presentation, you may download them here: Download kevin_mcmahon_power_point_slides.ppt)

Wikis and More

(The following is excerpted and condensed from an op-ed in yesterday's Washington Post.)

In the past year, Wikipedia, the online encyclopedia that "anyone can edit," has been cited four times as often as the Encyclopedia Britannica in judicial opinions, and the number is rapidly growing. In just two years, YouTube has become a household word and one of the world's most successful Web sites. Such astounding growth and success demonstrate society's unstoppable movement toward shared production of information, as diverse groups of people in multiple fields pool their knowledge and draw from each other's resources.

Loss Aversion and Framing

I recently conducted a test of loss aversion and framing in the context of environmental regulation. The simple result is that in one frame, a mortality risk of 1/100,000 was valued at $25; in another frame, a mortality risk of 1/100,000 was valued at $100. The difference is substantial and important, because the first suggests a value of a statistical life of $2.5 million, and the second a value of $10 million.

We Need a Federal Journalist-Shield Law NOW

As the new Democratic Congress moves ahead decisively on a panoply of issues, it should confront a particularly pressing one: freedom of the press. Congress should expeditiously enact a federal journalist-source privilege law, which would protect journalists from compelled disclosure of their sources’ confidential communications in the same way psychiatrists and lawyers are protected. Importantly, neither Congress nor the press should be unwilling to compromise when the alternative is to forgo such a privilege altogether.

A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society’s interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting “involved.”

Join the Revolution: Oscar Version

If you would like to vote on the Oscars, you can now download this year’s nominees at OscarTorrents.com, watch them and then cast your vote for your favorites. Not legally of course, but why should we be bothered with paying for content when technology makes it possible to make other people’s work available for free? And don’t fear law: “To those worried about downloading in case they get sued: by our calculations, your chances of getting nailed are way less than your chances of winning the lottery. Don’t think twice about it.”

So go watch and vote; or maybe, just maybe, recognize instead that merely because you can break the law and get away with it doesn’t make it any less illegal or any less wrong. Choose civilization or the state of nature. Your choice.

(Hat tip: Scrutiny)

Commentary on Darfur and the Kalven Report

Rick Garnett, a Notre Dame law prof who is visiting at Chicago this quarter and next—the ND folks aren’t scared off by the Chicago winters—has a commentary on Geof’s post over at PrawfsBlawg. As does Paul Horwitz this morning.

Rick’s wife Nicole is also visiting from ND this quarter and she has been blogging at Volokh this week on her recent Michigan paper on eminent domain. If you are interested in knowing how the Catholic church in Chicago dodged the Stevenson—I-55 in Chicago—or how the new Hummer plant was built in Michigan, start here.

No word on where the three Garnett kids are blogging this week.

Nussbaum on Political Philosophy

Chicago's own Martha Nussbaum is one of the contributors to this illuminating new set of interviews with leading political philosophers, who discuss the major issues in the field, their contributions to it, as well as the issues that will be most important for the future.  The book's web site includes many interesting excerpts from the interviews, including Professor Nussbaum's own observations about neglected topics in political philosophy.  One such topic, she says, is religion:

Good writing in political philosophy about religion is relatively rare. Again, there is a strong tradition here in Western thought, including Roger Williams, Thomas Hobbes, John Locke, Spinoza, David Hume, Immanuel Kant, Moses Mendelssohn (whose writings ought to be much better known than they are), and John Rawls.  But we need to start working on this topic with an eye to the problems that vex our world today, problems of religious fear and loathing spawned by the fear of global terrorism.  To do this work well, we need to learn much more about non-Judeo-Christian religions, and, most obviously, about Islam. We ought to be teaching every undergraduate philosophy major courses on Islamic philosophy, but to do that we first have to educate ourselves! I would like to see a vigorous conversation about religion and political philosophy across national, cultural, and religious lines. 

A similar volume on the problems of legal philosophy, which might be of interest to law students and legal scholars, will be available later this year; look for excerpts from those interviews at the book's site later this Spring.  Finally, students of law and economics may find the excerpts from interviews with leading game theorists of interest.

Darfur and the Kalven Report: A Personal Journey

Unlike many other universities, the University of Chicago recently declined to divest from Darfur. The basis of this decision was the University's Kalven Report. (If you have not read the Kalven Report, see http://www.uchicago.edu/docs/policies/provostoffice/kalverpt.pdf).

The Kalven Report was adopted the year before I arrived at the University of Chicago in 1968 as a new law student. Those were difficult days. On March 31, 1968, President Lyndon Johnson shocked the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.” The anti-Vietnam war movement had driven the president from office. On April 4, 1968, Martin Luther King, Jr. was assassinated in Memphis, Tennessee. The nation suffered a convulsion of violence, with riots in more than 100 cities, leading to forty-six deaths and more than 200,000 arrests. Chicago’s Mayor Richard Daley ordered police to “shoot to kill” arsonists on the city’s burning West Side.

On April 23 came the mass student occupation of buildings at Columbia University to protest the university’s war-related research and its treatment of the surrounding black community. This event marked a turning point in the nature of student protest. For the first time, police were called in to evict and arrest student demonstrators with the use of force. Moreover, for the first time universities themselves came to be seen by antiwar protesters as part of the nation’s power structure and thus part of the problem. Richard Nixon, a candidate for the Republican presidential nomination, decried the Columbia event as “a national disgrace.” Columbia became the model of what was to come.

New Downloading Study

I love RSS. The University of Chicago Press journals now do RSS, or at least the ones that I read (JLE, JLS and JPE). Now amidst the Steve Jobs Thoughts on Music and reports that EMI may move to unDRMed MP3s, this from the most recent issue of the Journal of Political Economy. Oberholzer-Gee & Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis:

For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.