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In my Spring Tech Policy Seminar, we are reading four books:
1. Jean-Noël Jeanneney, Google and the Myth of Universal Knowledge (Week 1)
2. Nicholas Carr, The Big Switch (Weeks 2 and 3)
3. Dan Solove, The Future of Reputation (Weeks 4 and 5)
4. Neil Netanel, Copyright’s Paradox (Weeks 6, 7 and 8)
Students do blog posts and comments and we then discuss those and the texts in class. The student’s first posts of the quarter are up here.
For a number of years, those interested in behavioral economics have been exploring how recent findings about human fallibility might bear on law and public policy. There has been growing interest in various forms of paternalism -- alternately described as light, soft, asymmetrical, and libertarian. For all these approaches, the unifying idea is that private and public institutions might adopt rules that steer people in directions that will make their lives go better while also maintaining freedom of choice. An example is a default rule (say, for savings or for health care) that, if unaltered, helps all or most people; another example is a cooling-off period (say, for encyclopedia sales).
Richard Thaler and I have been working on the topic of paternalism for many years, and have been defending forms of paternalism that preserve freedom of choice. Some libertarians, fearful of government bias or error, have objected that if public officials are involved, paternalism has no legitimate place.
In response to this objection, we have recently become interested in the possibility of "one-click paternalism," embodied in approaches that nudge people in good directions, but that allow essentially costless opt-outs. An example would be an automatic enrollment plan for savings, which workers could reject by a press of a button. Another example would be a default prescription drug plan for seniors, which people could replace with a plan that better suits their needs with a click (or possibly two).
If one-click paternalism provides a useful model, cooling-off periods are a bit more controversial, at least if you can't one-click your way out of them. Thaler and I think that one-click paternalism is often a useful approach for private institutions (employers, rental car companies, cell phone providers) and that the market will produce at least some protection against self-interested or venal nudging.
For government, we think that a form of public nudging is inevitable (short of anarchy), and that in many domains, one-click paternalism is preferable to both the command-and-control regulation favored by many liberals and the laissez-faire approaches favored by many conservatives. (For those interested in a detailed treatment, see our new book on these issues here.)
I was at the American Bar Association’s Spring Antitrust meeting in Washington yesterday. The topic for the panel was to address old antitrust doctrines that are likely to go the way of the dodo. Henry Su of Howrey organized a good panel consisting of FTC Commissioner Thomas Rosch, Gail Levine of Verizon, Greg Werden of the Antitrust Division of the Department of Justice and me. We had a lively and fun discussion. Leading candidates for revision were the (nominally) per se rule against tying; the Supreme Court’s old merger cases; and cases at the intersection of patents and antitrust. I also got to see a number of former students who are putting their education to work doing antitrust law. That is always very nice.
I think that I can claim the funniest line of the day, which was the question I posed in the post title when we turned to a brief consideration of the Whole Foods/Wild Oats merger. (That is way too much antitrust inside baseball, I suspect, but if you want to know more, see this.)
(And if you want an answer to the question, one word: Copperweld.)
You can read my written contribution for the panel at SSRN:
Take Two: Stare Decisis in Antitrust - The Per Se Rule Against Horizontal Price-Fixing
Abstract: In this essay prepared for the American Bar Association’s 56th Antitrust Law Spring Meeting, I consider two issues that pertain to the overall question of what antitrust doctrines are up for retirement. First, we can’t consider that without understanding how the Supreme Court approaches stare decisis in antitrust. The Court’s 5-4 decision in Leegin identified some of the fault lines on this issue. The Court has suggested that it should approach stare decisis differently in statutory areas from the way it approaches it when it reconsiders constitutional decisions. I think that that is wrong and that the Court should apply its approach to stare decisis in constitutional cases to cases based on statutes, such as the Sherman Act. Second, I focus on the evil of evils: horizontal price-fixing. I don’t think that the Court is likely to retire the per se rule against horizontal price-fixing, certainly not directly. We might only realize that it had been overturned after the fact, after the Court had so chipped away at the doctrine that nothing remained. That said, as again Leegin itself suggested, we can’t be fully confident that horizontal price-fixing is always pernicious, especially when it might be implemented as part of a larger vertical arrangement.
The University of Pennsylvania Law Review's PENNumbra site has published a response by Visiting Professor of Law Susan Bandes to "Two Conceptions of Emotion in Risk Regulation," a recent article by Dan M. Kahan. Kahan's article is itself part of a longer debate with Cass Sunstein; with this response, Bandes enters the discussion. She writes:
Are emotions subversive of reason or essential constituents of it? This is the broad question posed by Dan M. Kahan in Two Conceptions of Emotion in Risk Regulation, a welcome addition to his ongoing inquiry into how emotional appraisals of value influence decision making. Much of Kahan’s recent work has focused on a particular aspect of policymaking: the study of risk perception. Two Conceptions continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan’s cultural cognition approach and Sunstein’s heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. Kahan illuminates the issues at stake with his customary passion and clarity.
A major contribution of Kahan’s work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand.
The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.
I am grateful to the many readers who commented on my Spitzer piece. I cannot answer all the points they raise. I shall briefly respond to a group of points about Spitzer, and then turn to the important arguments of Valentina Urbanek and Scott Anderson about the specialness of sex.
Todd Henderson is right to ask me what I think about the financial laws that Spitzer is suspected of having broken. Do I think that if the suspect financial transactions occurred in connection with activities that should never have been illegal, those ancillary transactions themselves should not be deemed legally or morally problematic? I do not hold this view. I think that if there is solid evidence that Spitzer actually broke laws involving the use of campaign money, mail and wire fraud, etc., then he should be held accountable for these violations. However, all the evidence so far (including a comprehensive Associated Press inquiry whose results were published on March 21) suggests that he did not violate these laws. Let's wait and see.
Real life is complicated. Prostitution is an especially complicated part of real life. And Eliot Spitzer – by virtue of being a very high-profile, wealthy politician with a moralizing streak, an unkempt libido, an armada of powerful enemies, and a fierce but trivializing media looking on – has managed to raise the level of complexity of these matters even further. So, in my estimation, the mess he has made of his life and career (and the mess he made for some of the prostitutes he hired) provides little comfort for anyone trying to stake a position on more general issues regarding prostitution.
I will try to contribute here by briefly reprising a few thoughts I have published elsewhere. (For these, see my “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution,” in Ethics, July, 2002). I would agree with Nussbaum, writing here, that there are many reasons to reform the current laws governing prostitution, but I would resist going as far as she seems to go, suggesting that the legal effort to prevent prostitution is based in little more than Puritan moralism. I will conclude by saying a bit about how I think Spitzer’s folly does little to help make a compelling case to legalize prostitution, though, as I said above, the complications here are rather extraordinary, so more helpful cases could no doubt be found.
Continue reading "What Can We Really Learn from Eliot Spitzer's Folly?" »
The Research at Chicago site is currently featuring a video interview with Maria Woltjen, Director of the Immigrant Children's Advocacy Project, one of the Law School's four highly-regarded legal clinics.
The Immigrant Children's Advocacy Project is a human service and policy advocacy program dedicated to advocating for the best interests of immigrant and refugee children who are alone in the United States. Through the Immigrant Children's Advocacy Project, law students and bilingual volunteers are trained to serve as Advocates -- to get to know the children, help sort out their stories and help identify their eligibility for asylum or special protective visas. The video is embedded below, and if you'd like to learn more about the Project you read this recent article from the The University of Chicago Magazine or this 2006 article from the University of Chicago Chronicle.
[Professor Nussbaum submitted the following post by email:]
I am grateful to all those who posted comments on my piece on Eliot Spitzer. I intend to reply. Technical difficulties have prevented me from accessing our faculty blog from India, where I currently am (running a conference on Affirmative Action in Higher Education co-sponsored by our law school). I have now received them by e-mail, and will reply in a few days. Meanwhile, however, I would like to reflect today on the fascinating comments on my op ed -- over 100 of them -- from readers of the Atlanta Journal-Constitution, where it was originally published.
The Atlanta comments are a fascinating confirmation of my claims in the Spitzer piece about American puritanism and its misogynistic violence. A central theme is denunciation of Europe as a godless anti-Christian society that has lost its moral fiber because it tolerates too much female sexual freedom, a "decadent and dying culture." For this reason, opine the Atlantans, Europe will soon fall to the Muslim invaders.
Continue reading ""America's Puritan Streak" - Nussbaum Responds" »
Phillip Carter of Slate's Convictions has asked about Harvard's new tuition-waiver program, which he thinks will encourage students to take public service jobs. Maybe, but I'm not so sure.
Suppose that the third year of Harvard Law School costs $40,000. Under plan (1), you borrow $40,000 from a bank and give the money to Harvard in return for your education; you owe $40,000 but Harvard pays it, so that you pay $0 back per month as long as you are employed in a sufficiently low-paying public service job. If you stay in that job long enough, you pay back $0 and the debt is retired. Under plan (2), you don't borrow anything and don't pay Harvard anything, nor do you have a debt. But you have a contractual obligation to pay Harvard $40,000 (actually more) if you never take the public service job, and the amount you are required to pay if you breach your pledge gradually declines to $0 as you stay longer in the job. In short, under plan (1) and plan (2) you pay nothing for your third year at Harvard if you take a public service job for a sufficiently long period time, and you pay something up to $40,000 if you do not. Incidentally, because the two plans are identical (except for their names and for trivial details, and for the fact that the loan-forgiveness plan may cover more than one year of tuition), the new plan will not have any special incentive effects, for women or anyone else, that the old plan lacked.
[Cross-posted at PrawfsBlawg.com. You can also watch video of Prof. Epstein discussing Supreme Neglect, courtesy of the Cato Institute.]
In 1985, I published my book, Takings: Private Property and the Power of Eminent Domain (1985), which promptly received a number of scathing reviews by authors who are best left unnamed for the moment. But I was confident then, as I am confident now, that the approach that I took to the topic was basically correct. The conventional wisdom on that subject went into overdrive to confine the scope of the takings cause so that it did not overrun the rest of the constitution, or create a strong set of imperatives that the political branches would have to observe. My own contrary view was that the clause was as comprehensive and bold as its prose, and that no more than any other broad guarantee in the constitution (think of the First Amendment on speech and religion), it did not deserve to suffer a death by a thousand cuts by judges anxious to preserve broad discretion in the national and local governments to regulate economic affairs or the use and disposition of private property.
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