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The December 2007 issue of ABA Journal features an article on the "Blawg 100," with the tagline "the best websites for lawyers, by lawyers." The article lists the 100 best law-related blogs, The University of Chicago Faculty Blog is the only institution-based faculty blog to make the list. Please pardon us for a moment while we pat ourselves on the back. In the meantime, you can vote for us on the ABAJournal's site by clicking the button below:
The Bali negotiations have laid bare the central issue for climate treaty negotiations: who should pay for climate change. There were two major points of dispute:
1. Should developing countries be bound by an obligation to reduce or limit greenhouse gas emissions, or should rich countries alone make such a commitment?
2. How should abatement costs be allocated among rich and poor countries? In particular, how much aid should rich countries give to poor countries?
The United States (and Canada and Japan) took the reasonable position that the rich countries should commit to reducing greenhouse gas emissions and to helping the poor countries do so, only as long as the poor countries agree to limit their greenhouse gas emissions. The developing countries (and Europe) argued that the rich countries must help the poor countries but the poor countries need not make commitments.
The final agreement is ambiguous and open-ended, not really committing anyone to anything except further discussions, research, etc. But the gist of the agreement is that the rich countries must proceed to a discussion of their greenhouse-gas abatement commitments, and must agree to provide aid to the poor countries, while the poor countries need only consider “actions” to reduce or not to increase greenhouse gas emissions, in return for money and technological assistance from the rich. That is to say, the poor countries agree only to act in their national self-interest.
One needs to remember that China and India are considered poor countries. They certainly are, on a per capita basis, but not in the aggregate. China is apparently the world’s biggest greenhouse gas emitter, and India, as it develops, will be an increasingly major contributor. We can expect that other developing countries with enormous populations (Brazil, Indonesia, Bangladesh) will eventually join this group. A climate treaty that omits binding commitments from these countries will do little to ameliorate the effects of climate change. As the New York Times put it today, even if the rich countries shut down all industry immediately, the rate of global warming would be delayed only by a few decades, as the developing nations would quickly take up the slack. And if the rich countries have bound themselves before China and India are expected to, then the latter countries will have enormous bargaining power in any further negotiations, and indeed may simply refuse to enter any agreement.
In a much-noted turn in the negotiations, American diplomats withdrew their opposition to an agreement that omitted poor-nation commitments. This seems like a big mistake, and the White House is already backtracking.
One might reasonably ask, Why shouldn't rich nations incur the costs of climate abatement? They are mostly responsible for causing global warming, and can most afford to fix the problem. The answer is here. In brief, there are better ways to help the poor than to agree to an ineffective climate treaty.
So what’s so great about Bali? And, even more of a puzzle, what’s in it for the Europeans? Why don’t the Europeans join the U.S. and insist that there can be no deal without China?
Harvard and now Yale College have made news this week with new and generous financial aid policies. The Harvard policy was preceded by a promise made some three years ago (the “Financial Aid Initiative”) that students with parental income of less than $60,000 a year would receive full scholarships. The new policy tells those who make as much as $100,000 more than that, that they will expected to pay (or borrow and pay) only 10% of income. It was already the case that 20% of aid went to families with income over $100,000, and now this figure will rise. The financial aid budget is expected to grow by more than $20 million a year – and then presumably by much more than that in subsequent years. Yale will detail a similar plan, and we can expect a very few elite schools to follow suit.
There are several ways to think of these strategies: (1) competitive (2) public relations (3) How else should Harvard spend money?) (4) a restructuring of the intergenerational bargain. I think (4) is the most important piece of the answer, but first some comments on the others.
Very few accepted students turn down Harvard. It would not seem that it needs to offer more financial aid in order to attract students from families who can afford to pay if willing to save or borrow or both. A family with $150,000 in income can probably borrow $100,000 for each of two children and pay the money back over ten years or more. The graduates themselves will likely be in a position to help with repayment. But Harvard might have known or feared that other schools would chip into its market position by moving first in this direction, and so it chose to unveil a very generous plan that only 5 to 15 universities could match (but see (4) below).
The public relations move should not be underestimated. Harvard is no doubt already under pressure to move from a stated need-based financial aid regime to one that puts more money where it might be most inclined to attract students it wants. The best minority applicants receive increasingly attractive offers from other schools, and the same may be true for athletes Harvard wants. The single tool of a percentage cap on expected contributions from middle –income families is likely to get at many such targets. It is far more palatable, saleable, and legally viable than separate policies regarding minority students and athletes.
University administrators outside of Cambridge tend to respond to every Harvard initiative with “How else should they spend all that money?” But there are many other ways to spend. A better version of (2) might be that a much larger fraction of Harvard families will now feel a direct connection to Harvard’s wealth. This brings me to the intergenerational point. Universities should fear that future alumni will be less generous than their predecessors. The problem is that college admissions is more of a competitive game on both sides of the transaction. Parents (and some students too!) work hard to get in to Harvard, but anyone who is accepted surely has offers from many other schools. A graduate from 1960 who has accumulated great wealth is now very grateful to Harvard for the opportunities and financial aid that education created. But a graduate from 2000 or 2010 might well reason later that theirs was a financial transaction. Harvard gave money but other schools offered money as well, and it is possible that no special gratitude will be felt. I think Harvard might best be seen as making a good investment. It is trying to ensure that a large fraction of graduates will be grateful and will feel that other schools would not, in fact, have provided as much money – or that if they would have it is in part because Harvard forced them to do so.
There is more going on here. An elite university could cut back on the perks of a modern undergraduate education, but thus far all rush to build nice dorms and gyms and junior-year-abroad programs. A middle-class student now at college may well live at a standard higher than previously experienced at home. This new development in “education” is a somewhat different subject, for we should hardly expect Harvard and Yale to be the market leaders in de-frilling the college experience. The mix of graduate and undergraduate students – and financial aid policies – is another part of this subject. In fact, more generous graduate aid has preceded the move in undergraduate financial aid. But for today the news is focused on undergraduate aid and the immediate question is how many schools will respond with similar plans.
Over on SCOTUSBlog, Chicago profs Thomas Miles and Cass Sunstein discuss their article “Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron” in a two-part SCOTUSBlog "Ask the Author" segment. You can read it here.
Mitt Romney’s recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.
That version of history suggests that the Founders intended to create a “Christian Nation,” and that we have unfortunately drifted away from that vision of the United States. In fact, nothing could be further from the truth.
Those who promote this fiction confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later. The Founders were not Puritans, but men of the Enlightenment. They lived not in an Age of Faith, but in an Age of Reason. They viewed issues of religion through a prism of rational thought.
To be sure, there were traditional Christians among the Founders, including such men as John Jay, Patrick Henry and Samuel Adams. Most of the Founders, however, were not traditional Christians, but deists who were quite skeptical of traditional Christianity. They believed that a benevolent Supreme Being had created the universe and the laws of nature and had given man the power of reason with which to discover the meaning of those laws. They viewed religious passion as irrational and dangerously divisive, and they challenged, both publicly and privately, the dogmas of traditional Christianity.
Benjamin Franklin, for example, dismissed most of Christian doctrine as “unintelligible.” He believed in a deity who “delights” in man’s “pursuit of happiness.” He regarded Jesus as a wise moral philosopher, but not necessarily as a divine or divinely inspired figure. He viewed all religions as more or less interchangeable in their most fundamental tenets, which he believed required men to treat each other with kindness and respect.
Thomas Jefferson was a thoroughgoing skeptic who valued reason above faith. He subjected every religious tradition, including his own, to careful scrutiny. He had no patience for talk of miracles, revelation, and resurrection. Like Franklin, Jefferson admired Jesus as a moral philosopher, but insisted that Jesus’ teachings had been distorted beyond all recognition by a succession of “corruptors,” such as Paul, Augustine, and Calvin. He regarded such doctrines as predestination, trinitarianism, and original sin as “nonsense,” “abracadabra” and “a deliria of crazy imaginations.” He referred to Christianity as “our peculiar superstition” and maintained that “ridicule” was the only rational response to the “unintelligible propositions” of traditional Christianity.
John Adams, who identified most closely with the early Unitarians, also believed that the original teachings of Jesus had been sound, but that Christianity had subsequently gone awry. He wrote to Jefferson that the essence of his religious beliefs was captured in the phrase, “Be just and good.” As President, Adams signed a treaty, unanimously approved by the Senate in 1797, stating unambiguously that “the Government of the United States . . . is not in any sense founded on the Christian religion.”
George Washington was respectful of traditional Christianity, but he did not have much use for it. His personal papers offer no evidence that he believed in biblical revelation, eternal life, or Jesus’ divinity. Clergymen who knew Washington well bemoaned his skeptical approach to Christianity. Bishop William White, for example, admitted that no “degree of recollection will bring to my mind any fact which would prove General Washington to have been a believer in Christian revelation.”
Tom Paine, the author of Common Sense, The Rights of Man, and The Age of Reason, insisted that “the religion of Deism is superior to the Christian religion,” because it “is free from those invented and torturing articles that shock our reason.” Paine explained that deism’s creed “is pure and sublimely simple. It believes in God, and there it rests. It honours Reason as the choicest gift of God to man” and “it avoids all presumptuous beliefs and rejects, as the fabulous inventions of men, all books pretending to revelation.” Paine dismissed Christianity as “a fable, which, for absurdity and extravagance, is not exceeded by anything that is to be found in the mythology of the ancients.” In Paine’s view, traditional Christianity had “served to corrupt and brutalize mankind.”
These words no doubt sound shockingly blunt and “politically incorrect” to modern ears, but they were in fact the views of many of our most revered Founders. The fable that the United States was founded as a Christian Nation is just that – a fable.
It is worth noting that the Declaration of Independence does not invoke Jesus, or Christ, or Our Father, or the Almighty, but the “Laws of Nature,” “Nature’s God,” the “Supreme Judge,” and “Divine Providence,” all phrases that belong to the tradition of deism. The Declaration of Independence is not a Puritan or Calvinist or Methodist or Baptist or Protestant or Catholic or Christian document, but a document of the Enlightenment. It is a statement that deeply and intentionally invokes the language of American deism. It is a document of its own time, and it speaks eloquently about what Americans of that time believed.
The Constitution goes even further. It does not invoke the deity at all. Unlike the Puritan documents of the early seventeenth century, it makes no reference whatever to God. It cites as its ultimate source of authority not “the command of God,” but “We the People,” the stated purpose of the Constitution is not to create a government “according to the will of God” but to “secure the Blessings of Liberty.” Significantly, the only reference to religion in the 1789 Constitution expressly prohibits the use of any religious test for public office.
The Founders were not anti-religion. They understood that religion could help nurture the public morality necessary to a self-governing society. But they also understood that religion was fundamentally a private and personal matter that had no place in the political life of a nation dedicated to the separation of church and state. They would have been appalled at the idea of the federal government sponsoring “faith-based” initiatives. They would have been quite happy to tolerate Mitt Romney’s Mormonism – as long as he keeps it out of our government.
Dr. Ela Bhatt, recipient of the University of Chicago's 2007 William Benton Medal for Distinguished Public Service, presented a public lecture on November 27th in the Weymouth Kirkland Courtroom (read the University's official press release). The Law School had the pleasure of hosting this event because Dr. Bhatt was nominated for the Benton Medal by Martha Nussbaum. You can download the lecture now, or subscribe to the Faculty Podcast and get Law School audio content delivered to your desktop.
Ela R. Bhatt is widely recognized as one of the world’s most remarkable pioneers and entrepreneurial forces in grassroots development. Known as the “gentle revolutionary” she has dedicated her life to improving the lives of India’s poorest and most oppressed women workers, with Gandhian thinking as her source of guidance.
In 1972, Dr. Bhatt founded the Self-Employed Women’s Association (SEWA) – a trade union which now has more than 1,000,000 members. Founder Chair of the Cooperative Bank of SEWA, she is also founder and chair of Sa-Dhan (the All India Association of Micro Finance Institutions in India) and founder-chair of the Indian School of Micro-finance for Women.
Dr. Bhatt was a Member of the Indian Parliament from 1986 to 1989, and subsequently a Member of the Indian Planning Commission. She founded and served as chair for Women’s World Banking, the International Alliance of Home-based Workers (HomeNet), and Women in Informal Employment: Globalizing, Organizing (WIEGO). She also served as a trustee of the Rockefeller Foundation for a decade.
Dr. Bhatt has received several awards, including the Ramon Magsaysay Award, the Right Livelihood Award, the George Meany-Lane Kirkland Human Rights Award, and the Légion d’honneur from France. She has also received honorary doctorates from Harvard, Yale, the University of Natal and other academic institutions.
In 2007, Dr. Bhatt was named a member of The Elders, an international group of leaders whose goals include catalyzing peaceful resolutions to long-standing conflicts, articulating new approaches to global issues that are causing or may cause immense human suffering, and sharing wisdom by helping to connect voices all over the world.
The Benton Medal
The William Benton Medal for Distinguished Public Service is given to individuals who have rendered distinguished public service in the field of education. This field includes “not only teachers but also . . . everyone who contributes in a systematic way to shaping minds and disseminating knowledge.” Previous Benton Medal recipients include John Callaway, Katharine Graham, and Senator Paul Simon.
Here is a remarkable development. Just twenty-five years ago, there was a strong consensus, among judges and academics, that the Second Amendment did not create an individual right. No federal court had invalidated a restriction on guns on Second Amendment grounds (ever). As recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.
In a short period, the consensus has shattered. There is a strong possibility that the Supreme Court will accept a view that seemed implausible in the relatively recent past. Here is the question: What has happened?
Consider four possibilities:
1) Truth has finally prevailed. Perhaps new research has shown that the individual rights view is correct. It is true that a large amount of work has been produced in support of that view. Much of it has been funded by private groups with a stake in the issue -- but hardly all of it.
2) Interest groups, above all the NRA, have spurred the change. Perhaps the new view is a reflection of an aggressive social movement, not unlike the movement to ban segregation and to create a right to same-sex marriage. There can be no doubt that a great deal of time, money, and effort have been expended in an effort, by those with a serious stake, to press the individual rights view on politicians and the federal courts.
3) New judicial appointees have shown new receptivity to arguments that are a) originalist and b) associated with the political right. A key contributor to the shift is undoubtedly the presence, on the federal bench, of a number of Reagan and Bush appointees, who are sympathetic to gun rights in particular, and who also have a jurisprudential interest in originalist arguments.
4) Both politics and law have experienced an informational cascade, produced by savvy "Second Amendment entrepreneurs." Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer -- at least if they trust those others. On this view, the apparently supportive views of "liberal academics" -- including Sanford Levinson, Akhil Amar, Lawrence Tribe -- have been crucial in legitimating the individual rights position.
I tend to think that all of these explanations provide part of the picture, with the (important) qualification that 1) is probably wrong. (This is not the place to defend the qualification. The original understanding of the text is very complex, as shown by historians Saul Cornell and Jack Rakove among others; and longstanding social practices and many court of appeals have refused to accept the individual rights interpretation. In my view, the individual rights view, at least in its present form, is mostly a product of contemporary concerns and preoccupations.) Even if is right, it is not an adequate explanation of what has happened.
If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century.
David Pescovitz at boingboing had a fun post yesterday about an auction of an 1898 baseball document that sets out “special instructions to players” regarding foul language to be avoided during games. As the recent story in the New York Times about fan behavior at Jets games reminds us, sporting events aren’t always the most family-friendly events.
But that isn’t the issue of interest. Instead, read the instructions and focus on dirty words and quickly count how many of George Carlin’s famous seven words you see. What will become clear immediately is that we are suffering from a serious deficit in dirty-words innovation. We have split the atom, put a man on the moon and now are sorting through the genome, but we are still stuck with the same $!@$# words that baseball players were using more than a century ago. Perhaps foul language is like classical music: we came up with all of the really good ones a long time ago, and now we are just condemned to repeating, combining and permuting.
Fun and games to be sure, but this matters more as we turn to the First Amendment and communications policy. In truth, it isn’t clear that new dirty words would help us. Having an agreed upon set of forbidden words may be arbitrary—that was George Carlin’s point after all in the monologue considered in 1978 in Pacifica—but is also useful in helping us sort through what can and can’t be broadcast over the airwaves. If Bono’s “fucking brilliant” is enough to throw the FCC for a loop—and read the Second Circuit’s divided June opinion reversing the FCC to get a sense of this—it is hard to know what we would do with a bunch of new, really bad words.
Suppose you want to lose weight, and you have been unable to stick to a diet. Your aspiration is sincere but your will is weak. Fortunately, a solution is around the corner: you enter a contract with StickK, a new company founded by Ian Ayres, a Yale law professor, and some of his colleagues. Under this contract, you must pay StickK $1000 if you fail to lose (say) 10 pounds by the end of the year; the $1000 sum is handed over to a charity. If you lose the pounds, you pay nothing. (StickK will make money through advertising and in other ways.) A third party is retained to verify that you have lost weight. Ayres and his colleagues argue that this system will be more effective than alternatives at helping people lose weight, go to the gym, stop smoking, and achieve other personal objectives that require self-control.
Some nice legal questions arise. The system can work only if the contracts are legally enforceable. If they are not, the customer pays no penalty for failure except embarrassment, and one does not need StickK to expose oneself to embarrassment for failing to keep a public commitment to lose weight. But courts are unlikely to enforce such contracts. There is no consideration for your promise to pay money to StickK if you fail to lose weight—no quid pro quo, which is legally required for an enforceable contract. StickK does not give you anything in return for your promise to lose weight; nor do you give anything to StickK in return for its promise to pay the charity if you fail to lose weight. A rare zero-sided contract, there is no quid and no quo.
But there is a more serious difficulty. As StickK itself recognizes, it is important that the charity not be too attractive. If it is, then you will not feel bad if you fail to lose pounds—the money goes to a deserving group like the homeless—in which case you will not have a strong incentive to keep your commitment. To solve this problem, StickK will not permit its customers to choose the charity. But the problem remains. The money has to go to some charity, and at least some customers will turn out to favor that charity. For those customers, StickK can’t supply the needed incentive to keep their commitments.
What StickK needs to do is donate your money to an anti-charity, a group that almost no one approves of: the government of Sudan, say, or the tobacco industry. Perhaps if you know that breaking your diet makes you complicit in genocide, you will resist that slice of chocolate covered cheesecake. Let’s hope that the Sudanese government does not realize that it can cut out the middleman, and make money from obese Americans directly, by agreeing to take their money if they fall off their diets. Indeed, if Ayres’ business model is sound, we can imagine a future emporium of self-control entrepreneurs, with Sudan, North Korea, the tobacco industry, baby seal hunters, and pedophiles all vying for the business of the overweight, the underdeveloped, and other sufferers from weakness of will.
It is the time of year when some law firms pay out substantial bonuses. The bonuses may be predictable from year to year, or not, and then there may also be "special bonuses" of another $10 - $30,000, so that the overall compensation of a second year associate could end up coming in a mix that is three-fourths "salary," and one-fourth bonus. There is something of a puzzle in this, and then also the pattern of elite firms' matching one another's bonuses, as they do salaries. The associate at Firm A may receive a stated salary of 180K and then be given a bonus of 35K with an extra bonus of 15K. Meanwhile, the associate at cross-town rival B, receives the identical salary, and then the identical bonuses.
There is nothing wrong with the conventional explanations. The bonus may be a way of showing (or trying to show) appreciation just when the associate needs an extra push to work long hours. It may be a way of keeping associates from departing during a busy season, as they wait until bonuses are paid. The bonus feature may protect the firm (or the associates from layoffs) in the event of a bad year, inasmuch as the bonus need not be paid. Less conventionally, it may (as a colleague of mine suggested today) be a way of helping young spenders hang on to some money at year's end, and indeed the marginal rate of consumption may be a bit lower out of "windfalls." And it may be a way of creating a wedge between those who are part-time or those out on parental leave, who will often not qualify for comparable bonuses. Finally, but surely there are other explanations, associates, like other experimental subjects, may respond better to random rewards than to regular ones (like a schedule of pay linked to hours worked).
The parallel behavior among forms is not difficult to understand, at least at one level. If all firms imitate, then the first mover gains only a small reputational advantage - and at some cost (to all firms). But it is likely that only a set of very profitable firms match the bonus payments. We have a market in which there are perhaps 100 firms paying top wages, and then, 50 firms paying yet higher wages through the bonus system.
Clients are said sometimes to resent or resist the high pay of associates. They are suspicious of high billing rates attached to inexperienced lawyers. It is possible that bonuses are less publicized so that clients do not express concern when that form of compensation rises. It is interesting that associates of British firms are said to be paid less than their U.S. counterparts, even though they are often billed out at higher rates. The wedge between compensation and hourly billing rates could have many sources, including higher real estate costs in London. But it suggests that the market for legal services is somewhat unlinked from the market for associates. The division of rents between firms and associates need not be the same in disparate locations.
Perhaps the most compelling explanation for the bonus structure is that it allows, or eventually will allow, differential compensation within a firm, depending on how many hours an associate wishes to work. The initial salary is high enough to signal prestige, but the firm wants associates even if they want to bill "only" 1850 or 2000 hours a year. But of course if the associate is willing, or wants, to work longer hours and bill 2200 or 2500 hours that is all the better - so long as the firm does not lose the excellent lawyers who do not want to work such hours. At some firms bonuses are proportional to hours billed, and I suspect that at other firms they will be soon. The confounding element is that some firms "ruin" the multi-tier system (higher pay for more hours, but it is acceptable to work somewhat fewer hours) by raising the base salary with great fanfare. When Firm A announces that its starting salary has gone up from 145K to 160K, Firm B might wish to say "Well, ours will remain at 145, but we will raise our bonuses so that the hard worker will do as well here as at A - but here there is the option of fewer hours." The problem is that many starting associates will prefer Firm A because the 160 salary is guaranteed even for those who do not work the extra hours. Still, it may be possible over time for Firm B to develop a reputation that it will indeed pay bonuses that enable a two-tier system which, in principle, might be desired by many potential employees.
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