« October 2007 | Main | December 2007 »

20 posts from November 2007

November 30, 2007

Miles and Sunstein Take a Hard Look at the "Hard Look" Doctrine

Thomas Miles and Cass Sunstein, who stirred up some controversy back in October with their op-ed on activism and partisanship on the Supreme Court, have posted a paper on SSRN examining the process by which federal courts review agency decisions for arbitrariness. The abstract is below.

The Real World of Arbitrariness Review

THOMAS J. MILES
University of Chicago - Law School
CASS R. SUNSTEIN
University of Chicago - Law School
University of Chicago Law Review, Forthcoming
U of Chicago Law & Economics, Olin Working Paper No. 368
U of Chicago, Public Law Working Paper No. 188

Abstract:    
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are “arbitrary” or “capricious.” In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a “hard look” at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are “arbitrary.” This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

      

November 29, 2007

Richard Epstein: A Maverick's View of the Supreme Court

Richard Epstein, who this fall is a distinguished visiting scholar at the Manhattan Institute's Center for Legal Policy, has been treating that institution to a lecture series entitled "Law, Litigation, and State Power."

Professor Epstein's second lecture in the series was "Neither Liberal Nor Conservative: A Maverick's View of the Supreme Court." Jim Copland interviews him about this discussion in a podcast, available from the Manhattan Institute.

November 27, 2007

McAdams on the Economic Costs of Inequality

Richard McAdams recently posted a short paper to SSRN entitled "Economic Costs of Inequality" The abstract is below and the full paper is available here.

Economic Costs of Inequality

RICHARD H. MCADAMS
University of Chicago Law School November 2007
U of Chicago Law & Economics, Olin Working Paper No. 370
U of Chicago, Public Law Working Paper No. 189

Abstract:    
This brief chapter surveys some of the economic literature concerning the instrumental costs of material inequality. Economic theory predicts, and econometric evidence finds, that inequality increases crime and political corruption and, in certain circumstances, constrains growth.

November 26, 2007

Strahilevitz on "Law in an Era of Ubiquitous Personal Information"

Earlier this month, Lior Strahilevitz posted a paper on SSRN entitled "Reputation Nation: Law in an Era of Ubiquitous Personal Information." The abstract is below and the full paper is available here.

Reputation Nation: Law in an Era of Ubiquitous Personal Information

LIOR STRAHILEVITZ
University of Chicago Law School
Northwestern University Law Review, Vol. 102, October 2008
U of Chicago Law & Economics, Olin Working Paper No. 371
U of Chicago, Public Law Working Paper No. 190

Abstract:    
Modern technology has made two sorts of previously private information widely available in the past decade: Information about individual's past actions and activities, often contained in government files, consumer credit histories, and advertising profiles; and Feedback information about individual's reputations and preferences, often contained in social networking sites' pages, eBay feedback scores or Slashdot karma scores. In the coming decade, wearable computing devices and advances in network technologies have the potential to transform completely the way that strangers interact with each other and consumers interact with service providers. This paper is the first to ask systematically how the law should respond to the newly widespread availability of this information.

The paper develops a hopeful hypothesis, which is that the widespread availability of personal history and reputation information will reduce individuals' reliance on easily observable proxies like race, gender, and age, in deciding with whom to socialize or do business. The government thus has an unrecognized anti-discrimination tool at its disposal. For example, in addition to imposing liability on landlords who discriminate on the basis of race, the state can provide landlords with personalized information about a prospective tenant's attributes that allows the landlord to assign more weight to those attributes and less weight to the tenant's race. The paper then explores the application of this insight to varied antidiscrimination challenges in employment law, jury selection, health law, and insurance regulation. It then extends the discussion to examine how the widespread availability of personal information might improve immigration policy and consumer protection law.

The paper's next part examines the variables that will determine whether the optimistic story plays out, and whether greater information availability might undermine welfarist and distributive goals. It develops a typology of curtains and search lights, respective strategies designed to obscure individual attributes that are otherwise visible or render observable attributes that would otherwise be obscure, and explains why search light strategies might be particularly well suited to certain contexts. The paper concludes with a discussion of the normative case for the government to supplement traditional antidiscrimination laws with information-based antidiscrimination strategies, focusing on the pathologies that result when privacy protections or other obscurity-inducing measures are used for distributive purposes and the social meaning of strategies that try to reduce discrimination by providing decisionmakers with more information about job seekers, apartment renters, jurors, or patients.

November 20, 2007

Epstein on Eminent Domain and the Atlantic Yards

Earlier this month, Richard Epstein took part in a discussion at Yeshiva University’s Cardozo School of Law on the pending eminent domain challenge of the  Atlantic Yards development project in New York City. Also taking part in the discussion were Cardozo law professor Stewart Sterk and and New York attorney Matthew Brinckerhoff, who represents the plaintiffs in Goldstein v. Pataki. The Atlantic Yards Report blog offers an in-depth write-up of the discussion.

November 16, 2007

The Federalist Society Presents Ted Cruz and Noel Francisco speaking on Medellin v Texas

Last month, the University of Chicago’s chapter of the Federalist Society hosted a panel discussion on Medellin v Texas with Ted Cruz and Noel Francisco '96. Cruz is currently the Solicitor General of Texas and recently argued Medellin for the State of Texas before the United States Supreme Court. Francisco is a former Associate White House Counsel and Deputy Assistant Attorney General in the Office of Legal Counsel, and was central in developing the Bush Administration’s strategy for dealing with the legal issues raised by Medellin. It was a great opportunity to hear and in-depth and interesting discussion between two experts—and close personal friends—on a complex and textured case. The podcast is definitely worth a listen.

November 15, 2007

Futterman Releases Study of Chicago Police Department's "Broken System"

"The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department’s Broken System," a study authored by Craig Futterman, Clinical Professor of Law and Director of the Civil Rights and Police Accountability Project at the Edwin F. Mandel Legal Aid Clinic, Clinical Lecturer Melissa Mather, and Melanie Miles, a recent law graduate, was released yesterday. The study presents a comprehensive statistical analysis of the Chicago Police Department’s "broken system" for investigating complaints of civilian abuse. Among other findings, the study notes that:

  • Excessive force complaints are 94 percent less likely to be sustained by the CPD than they are by other large municipal police departments across the country.
  • In more than 85% of cases, the accused officers are not even interviewed beyond filling out a brief form.
  • A relatively small percentage of the force is responsible for most of the abuse complaints. During the period May 2001 - May 2006, 10,387 officers had 0 to 3 complaints. Another 2,451 officers had 4 to 10 complaints. 662 officers had more than 10 complaints. These 662 "repeaters" were named in 10,733 complaints.

The study has received a good deal of media attention, with articles in the New York Times and Chicago Tribune and stories on Chicago Public Radio and Fox News Chicago.

You might also want to read this profile of Futterman and the project he leads from The University of Chicago Magazine.

November 14, 2007

Shyam Balganesh: "Demystifying the Right to Exclude"

The ‘right to exclude’ has for long been taken to be a defining feature of property as a social and political institution.  Yet, very little is known about the exact contours of this right — How does it operate? Is it absolute? Are courts obligated to give effect to it whenever a property owner asks them to? In its short (10-page) unanimous decision last term, in eBay, Inc. v. MercExchange, LLP, the Supreme Court tried to shed light on what this right means, specifically in the context of patents. Yet what it hinted at is likely to have enormous significance for the way in which the law understands the ‘right to exclude’, as it relates to all of property law.

In a paper recently posted to SSRN, Shyam Balganesh, Bigelow Fellow & Lecturer in Law, argues that a close reading of the Supreme Court’s opinion in eBay tells us what the right to exclude has really meant all along — as little more than a duty of non-interference that non-owners are placed under. Understanding property in this way allows for a more holistic analysis of the institution, one that accurately represents its functioning as an everyday matter.

The abstract is below and the full paper is here.

Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions

SHYAMKRISHNA BALGANESH
University of Chicago Law School
Harvard Journal of Law and Public Policy, Vol. 31, 2008
U of Chicago, Public Law Working Paper No. 182

Abstract:    
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.

November 13, 2007

Gift Giving and other Transfers

As the Holiday season approaches, Consumer Reports has placed advertisements warning consumers of the waste associated with gift cards, a growing and popular means of getting through birthdays, bar-mitzvahs and now, the Christmas season. Retailers (and some banks) love gift cards because a sizeable fraction are lost or allowed to expire, and many go unused while the vendor enjoys the interest. The value of unused cards has been estimated at $8 billion (though that number appears to be a cumulative stock rather than an annual flow), and there are retailers enjoying millions of dollars in annual income because of unused cards. Note that competition does not reduce the price of cards because of a kind of arbitrage and adverse selection; if $95 gave the recipient a card that could be exchanged for $100 worth of goods, then customers ready to make normal cash purchased would buy cards and quickly redeem them.

From the gift giver’s point of view, the primary alternatives to these cards are (1) “real” and let us assume returnable gifts, (2), cash and (3) no gift at all. Joel Waldfogel’s well-known work on the deadweight loss associated with Christmas has received plenty of attention, and has perhaps encouraged sophisticated readers to prefer gift cards over option (1). I may pretty good at knowing what my kids and their friends will like, and I may even be good enough at this so that gift cards will confer more utility than cash. I may be able to open up a new source of pleasure with a gift. At times, kids know to prefer gift cards over cash, because it removes their parents’ ability to restrict the purchase of video games, for example; at other times, a gift card from Borders, say, simply substitutes for what many parents would gladly provide.

For acquaintances, Waldfogel estimates the deadweight loss, or the extent of the giver’s misestimate, at between 10-33% of the price of the gift. If the rate of gift card disuse is much less than that – and if the cards are used for items that the recipient wants without much additional deadweight loss, then gift cards are pretty good, and the warning from Consumer Reports misses much of their value. Indeed, as a matter of efficiency, we should probably prefer unused gift cards to sweaters that sit in the drawer, because the former is a “mere” wealth transfer, while the latter require energy and other resources to manufacture and distribute. To be sure, if we encourage bridal registries and Christmas wish lists, then we might improve the efficiency of traditional gift giving. But again, these methods do not allow for the fact that a giver might expand a recipient's horizons with a gift; nor do they advance the utility that comes from a pleasant surprise. Waldfogel's analysis and surveys leave the reader with an unfair comparison because many recipients would spend cash in ways they regretted later on. I may value the sweater Aunt Sally gave me at $75, though she spent $100 to acquire it (and the returns process would cost me $26), but had she given me $100 in cash I might have bought a video game that I would report as worth $65 to me in three weeks if Waldfogel would only ask me then what I thought of my homemade purchases.

I would like to see gift cards that increased in value over time. The vendor might be encouraged to reason that it can afford to share (or even exceed) the time value of money because as time ticks by the probability of loss or disuse will also increase. The recipient meanwhile may gain utility because the longer the option period, the more likely the buyer will use the card for something the buyer really wants. The card might also teach something about savings. Unfortunately, it might also teach something about income tax evasion, because in theory a card purchased for $100 that was worth $110 in a year would burden the recipient with $10 of income to report.

Once we see gift cards in this light, we see not only new gifts to give but also new policies for governments and employers. I can set aside $100 now that my intended recipient can cash in for $200 some years from now but use only for education, books, or vacation. The longer the option period, the smaller the deadweight loss is likely to be (and non-use is more of a reverse wealth transfer than an efficiency loss). The benefactor is encouraging a preference, perhaps, but the gift encourages savings, or at least one version of savings.

It was once common to give U.S. Savings bonds as gifts, especially to children, and these matured many years in the future. With that gift, the giver helped to pay for the beneficiary's adult life or education. Such a gift made one feel wealthier, but no one I know jumped for joy when receiving such deferred happiness. It is not just that the gift seemed paternalistic or less utility-enhancing than the cash alternative, because that is true of most non-cash, unrequested gifts. Most gifts, like most government transfers, generate excitement when consumption can be immediate. The recipient shrieks with delight when unwrapping the new bicycle (even though it is a durable good with some pleasure deferred), but is unlikely to do so when unwrapping a promise of a bike to be given in two years.

One lesson to be derived from this is that the way we give gifts is not so different from the way governments bestow benefits to interest groups as well as to beneficiaries of presumed altruism.  We give food stamps (present gift) but we also give public housing (durable good, so there is some deferral) with a presumption that the recipient has the right to remain in the unit. We might often encourage behavior best by giving a completely deferred benefit (that is larger because of deferral), but that is rarely the path law or legislation takes.

If Consumer Reports means to encourage gift cards that do not expire and that do not come with hidden fees, then it is hard to argue with that message. But if they mean to say that conventional gifts are superior, or that cash gifts are to be preferred, then the matter is much more complicated. Gift cards are a compromise between the two (perfectly defensible form of gifts), and the inefficiencies or transfers they generate are not so different from those produced by these other forms of gifts. I hope that when interest-bearing gift cards appear, critics will refrain from complaining too much - without comparing the new gift form to its alternatives.

Continue reading "Gift Giving and other Transfers" »

November 12, 2007

Epstein on the Patent Reform Act of 2007

Richard Epstein recently published a column on FT.com's New Technology Policy Forum about the Patent Reform Act of 2007. He argues that changes to the injunction rule and damage rule in the PRA are "a one-two combination that would dampen patent innovation." Read the column for yourself here.