The University of Chicago Law School Faculty Blog

Video + Podcast: Robert Goodin presents "An Epistemic Case for Legal Moralism"

On January 16, Robert E. Goodin, Distinguished Professor of Philosophy and of Social & Political Theory in the Research School of Social Sciences at Australian National University, presented the 2007-2008 John Dewey Lecture on Jurisprudence. Entitled "An Epistemic Case for Legal Moralism," the talk was introduced by Cass Sunstein and addressed the following issues:

Ignorance of the law is no excuse, or so we are told. But why on earth not? The statute books run to hundreds of volumes. How can an ordinary citizen know what all is in them? The best way might be for law (at least in its wide-scope duty-conferring aspects) to track broad moral principles that ordinary citizens can know and apply for themselves. In contrast to more high-minded and deeply principled arguments, this epistemic argument for legal moralism is purely pragmatic – but importantly so. For law to do what law is supposed to do, which is to be action-guiding, people need to be able to intuit without detailed investigation what the law is for most common and most important cases of their conduct, and to intuit when their intuitions are likely to be unreliable and hence that they need to investigate further what the law actually is.

If you couldn't make it to the lecture (or would like to relive the experience), we've embedded a video below. If you'd like to download a Quicktime version of the video, you may do so here; or if you would just like the audio, it is available here.

Epstein on "Legal analogies and metaphors in a high-tech age"

On January 15, the Financial Times website published an op-ed by Richard Epstein on the use (and misuse) of metaphor in political and legal analysis of issues surrounding new technologies. He writes:

Political disputes over the so-called new media – chiefly network communications and intellectual property – seem to invite a high-tech analysis to reach sound policy solutions.  The initial gambit of most policy analysts is to develop an optimisation model in order to maximise the social welfare that attaches to alternative institutional arrangements over intangible resources.  Implicitly this approach rejects or downgrades more traditional and modest techniques that rely on homely analogies and instructive metaphors. Often times these two techniques are seen as tantamount to doing acrobatics without a net. Absent an overarching theory how can we be sure that two cases with superficial resemblances do not require wildly different solutions?

You can read the full article here.

Anup Malani Podcast: "Understanding Corporate Philanthropy"

Last week, Anup Malani gave a Chicago's Best Ideas talk entitled "Understanding Corporate Philanthropy." Since we're feeling philanthropical ourselves, we're making a recording of the talk available here.

Here is the blurb for the talk:

Much of current scholarship views corporate philanthropy managerial waste or profiteering. In this talk, Professor Malani argues that both views are correct, and incomplete. Corporate philanthropy is the corporation’s entry into the market for private financing of public goods, also called the production of “warm glow.” This market was previously dominated by non-profit charities and the government. The feature that distinguishes corporate production of warm glow from other goods is that the corporation’s shareholders and workers are also its consumers. (Would you rather own or work for Google or Altria?) The key choices for the consumers of warm glow are whether to purchase from corporations or their competitors, and whether to do this via ownership, employment or product purchase. The talk will discuss the competitive advantage of corporations over charities and the government, and the importance of tax law in determining how consumers purchase warm glow from corporations.

Political Bias in the Judiciary: Does It Matter?

Do judges allow their political views to affect how they decide cases?  The answer seems to be “yes.”  Empirical studies show that Republican judges favor employers against employees and unions, businesses against regulatory agencies, and prosecutors against criminal defendants, while Democratic judges do the opposite.  The federal system seems to invite such behavior, with its partisan appointments process and lifetime tenure that protects judges from retaliation.  State electoral systems would also seem to reward partisan judicial candidates.  Scholars worried about judicial bias have proposed numerous reforms, including:

• More serious Senate involvement in federal appointments, and abolition of judicial elections in states
• Term limits in place of lifetime tenure
• Greater judicial deference to the judgments of legislatures and agencies
• Mandatory bipartisan appellate panels

All of these proposals assume that more “neutral” judges are better or that if reducing the political bias of judges is impossible, then their role should be limited.  But there is an alternative view.  Judges have legislative power in our system, and, like legislators, ought to make political judgments.  If the judiciary is ideologically diverse, the ex ante effect of biased judging on legislation should be politically neutral; and even if it is not, the main effect should be to ensure that legislation is socially beneficial, as legislators will need to be careful about enacting laws that injure the constituency of opposite-party judges.  This is not the whole story, of course, and there are cross-cutting considerations.  But the case for reform turns out to be more complicated than it first appears.  For the whole story, go here.

Counting Bytes and Bandwidth Shifting

Yet another reason to come to the office: bandwidth shifting. Maybe not quite yet, but it is coming.

I am at the office and just downloaded Steve Jobs’s Macworld keynote address; when I work out, I’ll watch it on my iPod Touch (a delight, especially with last week’s software update). Video files are huge and this one clocked in at a hefty 891.8 megabytes. When it comes to size, there is no comparison between video and anything else. So the hour-long Supreme Court oral argument in the Leegin antitrust case—available on iTunes through Oyez—is 14.5 megs. And the written transcript in the Quanta case—on patent exhaustion and first-sale type rights argued in the Supreme Court last week—is only 237 kilobytes.

StickK Launches!

StickK, a business that allows you to enter self-commitment contracts, is now open for business. If you would like to lose weight (for example), you make a contract with StickK, under which you are required to pay money to a worthy charity if a referee determines that you failed to meet your weight-loss commitment.  You can also choose an unworthy charity:

During the contract creation process, you have the option of selecting an Anti-charity as the Recipient of Stakes. The purpose of Anti-charity is to give you an added incentive to achieve your goal by designating your stakes, upon failure, to go to an organization that you strongly oppose. You should select an organization which promotes values that are the most contrary to your own. We currently have a selection of Anti-charities which fall on either side of the following highly contentious issues: Abortion, Gay Marriage, Gun Control, and the Environment.

Conspiracy Theories

All over the world, people accept conspiracy theories. ("The truth is out there.") Many people believe that high-level officials in the United States government were responsible for the assassinations of John F. Kennedy and Martin Luther King. Many people believe that AIDS was deliberately engineered by doctors. Millions of people believe that the attacks of 9/11 were undertaken by the United States or by Israel. Millions of people in the developing world believe that the United States is now plotting to conduct some nefarious campaign against them.

Conspiracy theories create an array of puzzles. What, exactly, are they? What counts as a conspiracy theory? Why do people accept conspiracy theories? Should government do anything about them? Adrian Vermeule and I try to make progress on these questions in a paper that is available here. For the moment, let us notice that a distinctive feature of conspiracy theories is their self-sealing quality: Those who hold such a theory are likely to be both motivated and able to fold contrary evidence into the theory itself, and even to conclude that the contrary evidence is further proof of the conspiracy. Often conspiracy theorists spend much of their time in isolated networks of like-minded others, which makes it all the more difficult to undermine their beliefs.

Some conspiracy theories are innocuous, fun, and funny. (On the innocuous and fun side, consider the parental conspiracies that give rise to widespread beliefs in Santa Claus and the Easter Bunny.) But some such theories are extremely dangerous, because they produce intense feelings of hatred and humiliation, and a real potential for violence. A serious task is to decide when it is worthwhile for government to try to debunk a conspiracy theory -- and to try to find ways to overcome the self-sealing quality of the theory through some form of infiltration.

Video: Cass Sunstein on the 2nd Amendment

Back in November, we posted a podcast of the Cass Sunstein CBI, "The Second Amendment: The Constitution's Most Mysterious Right." In our continuing effort to add more video to the blog, please find below a recording of the the talk (you can also download a Quicktime version here).

Epstein in Regulation

The most recent issue of Regulation features Richard Epstein's response to an earlier article by Berkeley's Peter Menell, in which (according to Epstein) Menell attempts "to discredit what he calls the property rights movement for its supposed "absolutist" stance on intellectual property." The issue also features a reply by Menell to Epstein's response.

Video: Mark Heyrman on Involuntary Commitment to Mental Hospitals

Back in November, we brought you a podcast of Clinical Professor of Law Mark Heyrman giving a Chicago's Best Ideas talk entitled "Why the Legal Standard for Involuntary Commitment to Mental Hospitals Doesn't Matter (Much)." Today, we present the video of that talk. This is the first round of what we hope will be a significant increase in our use of video on this blog.

Prefer to watch the video offline, or want to download it so you can watch it on an iPod or other portable media player? A Quicktime movie file is available here.