The University of Chicago Law School Faculty Blog

Crowdsourcing Obama's Exams

Like Britney Spears and Paris Hilton, Barack Obama’s past has been laid bare for Internet gawkers everywhere. But that may be where any similarity ends.

Instead of Inside Edition and Perez Hilton, Obama has been scrutinized by the New York Times and legal eagles Akhil Amar, Randy Barnett, John Eastman, and Pam Karlan. Fortunately for Obama, the past under review has received largely glowing reviews.

The precise target of the scrutiny is Obama’s 1994 syllabus for a seminar and, more strikingly, his late Nineties through early 2000s exams and model answers for constitutional law.

The blogosphere is alight with commentary on Obama’s course materials and what this reveals about Obama.

I don’t want to focus on the quality of those papers and what they allow us to predict about Obama today, but rather on what this story reveals about (1) the New York Times and the way news is processed and received in the Web 2.0 era; and (2) the precariousness of our privacy today.

The State of Indecency Today

I am giving a talk this evening at the IIT Institute of Design’s first Show & Tell. It is an effort to get out academic ideas to a wider audience.

The basis for the talk is a post I did last year asking whether we had a dirty words innovation problem.

If you are interested in the state of indecency today—the world of Paul Cohen, the late George Carlin and more recently Bono, Janet Jackson and Justin Timberlake—you might find my slides for tonight interesting.

Whole Foods and Wild Oats: Unscrambling the (Organic) Eggs?

In a 2-1 decision, the DC Circuit issued this morning an opinion reversing the lower court's denial of a preliminary injunction sought by the Federal Trade Commission to block the merger of Whole Foods and Wild Oats. As no injunction was granted pending appeal, the merger has moved forward with substantial operational changes having already been made. The decision means that the FTC should now have the opportunity to pursue an eventual Section 7 case in full.

The court issued three opinions this morning. Each of those opinions agrees that the central issue in the case—indeed perhaps the only issue in the case—is market definition. The Federal Trade Commission contended that a separate market existed called premium, natural, and organic supermarkets ("PNOS") and that Whole Foods and Wild Oats dominated those markets. The merging parties contended of course that the real market was grocery stores or perhaps even more and that they competed in those markets with national grocery chains and behemoths like Wal-Mart and Target.

Brad and Angelina Vertically Integrate

Having apparently successfully horizontally-integrated before, Brad and Angelina are now embracing the latest celebrity trend: vertical integration. As everyone knows, Brad and Angelina just had twins. As Chadwick Matlin reported for Slate Friday, celeb baby pics are worth a fortune. Our celebrities face a choice: be chased mercilessly—and with real risk—by the paparazzi or instead vertically integrate and go into the baby pic biz themselves. Increasingly they are doing the latter.

As I emphasize in my paper on Fair Use v. Fair Access, authors have initial monopoly control over their works and a smart copyright system needs to take that into account. We see the same access phenomenon at work in the baby pictures: access matters and the celebrities have figured out that going out in public with the new baby gives up that access. If the celebrities sell access, they kill off the market for the “first” pictures. That is a twofer: they collect a nice check—often for charity—plus the paparazzi lose out.

Note that a broader conception of privacy, as Warren and Brandeis pushed for in their 1890 article on The Right to Privacy, might eliminate the need for celebs to vertically integrate. The July 24th Mosley case in the UK works through the tensions between privacy rights and the freedom of expression under the European Convention for the Protection of Human Rights and Fundamental Freedoms and comes out in favor privacy and a £60,000 penalty against the News of the World, though the home page suggests that it is still business as usual (and see their views of the decision here).

Audio/Video: M. Todd Henderson: "Predicting Crime (without the Pre-Cogs)"

In the absence of pre-cognitive superbeings and Tom Cruise, how are police and policy makers supposed to allocate scarce crime-fighting resources? There is a vibrant academic literature on predicting crime, with models of various types offered as the best way of estimating future crime rates. Many of these involve mapping software, which plots the past in the hopes of extrapolating to the future. Police use some of these techniques, but most are very crude, using things like weather or the location of liquor stores as "hot spots" to estimate crime rates. Police also use experience and gut instinct. All of the various methods, whether formal models or inside the head of the commissioner of police, are deployed in haphazard and isolated ways. In this lecture, recorded May 13, 2008 as part of the Chicago's Best Ideas lecture Assistant Professor of Law M. Todd Henderson presents an alternative.

Video of the talk is embedded below, and a .mov file and .mp3 file are also available. Prof. Henderson's paper on this topic (written with Justin Wolfers and Eric Zitzewitz) is available from SSRN.

Video: Sunstein and Thaler on "Nudge" and Noodles

Via the Research at Chicago site:

[Richard] Thaler and [Cass] Sunstein reminisce at their favorite Hyde Park lunch spot, Noodles, where they say they did some of their best work on the book. Noodles was so important to the creative process, it even made the acknowledgments. The two talk about what each brought to the project, the origin of the elephants on the book cover, their fear of forms, and their hopes for a new political consensus in the country.

Related Links:

• Nudge Blog
• Nudge Website

Audio/Video: Geof Stone, "The World of the Framers: A Christian Nation?"

It has become commonplace in American political discourse for Christian evangelicals to assert that the United States was founded as a "Christian nation" and that in recent decades secularists have gained control and distorted our nation's founding traditions and values. In this lecture, Edward H. Levi Distinguished Service Professor Geoffrey Stone examines the beliefs of the Framers on this question. What did they think about Christianity, about the role of Christianity in the American nation, and about the relationship between religion generally and self-governance? The answers to these questions are important not only to constitutional interpretation, but even more fundamentally to an understanding of who we are – and who we are supposed to be – as a nation.

This talk was recorded April 21, 2008 as part of the Chicago's Best Ideas lecture series.

Video of the talk is embedded below, or you may download a .mov file or .mp3 file.

Why China Allows its Citizens to Sue the Government

Earlier this year I gave a talk to the students, available on the podcast section of the website, on Why China Allows its Citizens sue the Government. The talk focused on the growth of administrative litigation under the Administrative Litigation Law, in force since the early 1990s , under which citizens routinely sue and win cases against the Chinese government. To a lesser degree I talked about quasi-constitutional litigation (so-called because the Chinese Constitution is not formally justiciable) under which lawyers and judges invoke the Chinese Constitution in support of other legal claims that have a public law character.  Why would a dictatorship like China tolerate, and even encourage, such challenges to state action?

Audio/Video: Eric Posner and Henry Farrell, "Readers Like You"

Earlier this week on bloggingheads.tv, Chicago's Eric Posner engaged George Washington University's Henry Farrell in a wide-ranging discussion that explores a variety of issues, from the effect of the blogosphere on politics to the question of whether aggressive counterterrorism measures actually nurture militant Islamism.

The clip below features a portion of the discussion concerning the processing of enemy combatants; the full video (as well as downloadable audio, if that's more your style) is available here.

The Viacom-YouTube Privacy Order

The Senate Commerce Committee is conducting a hearing today on the privacy implications of online advertising. And a week ago today, a federal district court judge ordered YouTube to turn over to Viacom its records regarding what we have been watching on YouTube, including YouTube login IDs, IP addresses and the number of times a particular video has been watched. As I note in my recent draft paper—and if you are interested, see commentary on that by Josh Wright and Hanno Kaiser—as we see increasing efforts of online content providers to engage in behavioral advertising, we are going to need to work our way through the ramifications of the databases that make ad-targeting possible.