The University of Chicago Law School Faculty Blog

Conference: "Emotion in Context: Exploring the Interaction between Emotions and Legal Institutions"

This past May, then-Visiting Professor of Law Susan Bandes organized a fascinating conference that brought together scholars working in philosophy, neuroscience, neuroeconomics, sociology, psychology, and political science to consider the intersection of legal institutions and human emotion. For example, legal institutions consistently make assumptions about how people individually or collectively respond to new information, assess risks, or decide whom to trust or fear, about what motivates people to forgive or to seek vengeance, or about how to promote or discourage empathy. The conference explored the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of legal institutions. Included in the proceedings were Chicago faculty members Scott Anderson, Mary Anne Case, Richard Epstein, and Martha Nussbaum. Audio recordings of many of the talks are now available on the conference website.

The conference was sponsored by the University of Chicago Law School, the Gruter Institute for Law and Behavioral Research, the DePaul University College of Law and the John M. Olin Program in Law and Economics at the University of Chicago Law School.

Personal Seat Licenses

Here is a puzzle: What explains the fact that some businesses sell multi-year uses and others do not - and why do some offer mixed strategies? I am offered multiyear subscriptions to magazines but not to theaters. Perhaps the transaction costs of renewal are substantial, and we find more multiyear arrangements for less expensive goods. In most cases, I'd think the seller would at least offer multiyear deals because buyers might overestimate their own future demand, based on their current preferences. If I love attending the games of my local football team, then the team might try to lock me in by selling multiyears season's tickets or, the right to buy these tickets in the form of a "personal seat license," or PSL, which gives the holder the "right" to buy or rent those seats season after season. Typically that PSL can be sold after a modest holding period and, unsurprisingly, the value of the PSL has often risen, much as taxi medallions can rise in value. The arrangement is puzzling because the PSL/season-ticket-holder is often in the business of reselling some of the tickets, and we would think that the team or stadium is better situated at locating buyers for single games. It is as if an airline sold me seat 12D for every monday morning flight to Dallas, and I needed to resell that seat when I had no use for it. Neither the airline seat nor the stadium seat is much of a "security," as we normally understand that legal term, because the value does not (or at least not much) rise or fall with an uncertain future. It is more like a magazine subscription than it is like a share of Ford. Note that the PSL represents a mixed strategy; the buyer does not pay in advance for five years of games, but rather pays part of the fee upfront and then pays the issuer a substantial amount per game or per season later on. I suppose the PSL might simply be a means of avoiding sticker shock, though that is a weak explanation.

PSLs are normally explained as a means of raising money upfront --and indeed in Europe they are called debentures. If the a footbal team needs $1 Billion for a new stadium, one means of financing is to sells PSLs at the start and, effectively, promise lower ticket prices later on; PSL holders are normally protected with the promise that ticket prices will only rise by 4% or some other cost-of-living kind of increase each year. But this explanation misses the point that seats could be sold in five year blocks, like magazine subscriptions. In any event, lenders would be willing to take future seat receipts as security. It returns us to the puzzle of multiyear sales, and adds the puzzle of why PSLs or medallions in some industries but not in others.

My tax-wise colleague Julie Roin suggests that the seller may plan to allocate the cost of the stadium in a way that assigns some substantial fraction of the cost to the "seats," and then the PSL receipts would mark the begining of the return of this investment, but not yield any taxable income. If so, the PSL approach is clever - though I note that at least one blog reports the NY Giants's owner as saying that half the revenue from PSL sales would go to taxes.

One problem with multiyear sales is that when the scheme is started, current management has revenue that it might be tempted to spend, rather than to save for future years when it must still produce the product (theater production, sporting event, taxicab rides). There are journals that sell life subscriptions, and my understanding is that the revenue is put aside and income is attributed to each year's budget. And of course most durable goods can be bought or rented, and when they are purchased outright, management must be counted on to set resources aside to make good on warranties and other costs associated with future years. Thus, one can rent a car by the day or week, lease it by the month or year, or "buy" it in order to have the right to its ten year or more lifetime. Toyota specializes in the last two markets, and it leaves short-term rentals to others. Similarly, the stadium owner might leave short-term rentals to intermediaries, including the purchaser of a PSL. Except that it does not.

It cannot escape attention, at least on this blog, that universities sell something like PSLs. An admitted student comes close to having the right to buy x four or three years of education, and the school, by convention, limits tuition increases to something close to the cost of living. PSLs can, however, be resold, for the Giants seem happy to have any fans in those seats.

Martha Nussbaum on Roger Williams

Over at The New Republic, Ernst Freund Distinguished Service Professor Martha Nussbaum has a review of a new book edited by James Calvin Davis entitled On Religious Liberty: Selections From the Works of Roger Williams. A short excerpt is reproduced below, and you can read the full review here.

Williams's writings have long been virtually unavailable to the general public. Now Harvard University Press has published On Religious Liberty: Selections From the Works of Roger Williams, edited by scholar James Calvin Davis. Davis provides around three hundred pages of Williams's writings, including all-too-brief extracts from the two great works on persecution. He has decided to omit Williams's correspondence--an unfortunate decision, since the letters, though well edited, are as hard for the general reader to obtain as the treatises. Still, Davis has a keen eye for the telling passage, and he arranges the extracts helpfully, adding a lucid introduction. His fine volume will be especially useful for purposes of teaching, and it will sustain us while we await a more complete re-issue of the major works and letters.

The Latest Kafka Papers Controversy

The New York Times has an interesting story on the fate of some of Franz Kafka’s papers.  The broad outline of the story is well-known: Kafka directed his friend, editor, and executor, Max Brod to destroy Kafka’s unpublished works, which included the manuscripts of Kafka’s two great unfinished novels, his diaries, and a number of his short stories.  Brod could not bring himself to destroy the work because he regarded it as too precious, so Brod edited and published the work instead, earning the deceased Kafka a place among the great writers of the twentieth century.  The Times reports that there evidently remains a collection of never-seen work by Kafka that Brod took with him when he fled Prague for Israel as the Nazis invaded the Czech Republic.  Brod willed the papers to his secretary, Esther Hoffe, who refused to let anyone outside her family see them.  Upon her death, the papers went to Hava Hoffe, a destitute Israeli senior citizen who the Times describes – to put it politely – as highly eccentric and erratic. For several decades, no Kafka scholars have had access to the papers.  The Times notes that Hava Hoffe has announced that she will make a decision about what to do with the papers in the next few months, leaving literary scholars hanging on her word and whim.

What can be done about the papers? What if Hoffe decides to suppress them for another generation? There is an obvious legal solution.

Richard Posner: "In Defense of Looseness"

In the current issue of The New Republic, Senior Lecturer Richard Posner has published an article in which he discusses the repercussions of the Supreme Court's recent decision in District of Columbia v. Heller, the meaning of originalism, and "the mystique of 'objective' interpretation." The first two paragraphs are reprinted below, and the entire article is available here.

At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District's ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court's recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.

The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia's entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions. The irony is that the "originalist" method would have yielded the opposite result.

The Rule of Law and a Petition Regarding the Russian-Georgian Conflict

In today's e-mail I was invited to sign on to a letter initiated by two fellow deans with experience "in the project of building a stronger legal education system and a system of accreditation for law schools" in Georgia, as part "of a larger project, aided by resources from the ABA and USAID, to promote the Rule of Law in Georgia by building an independent judiciary and a strong and independent legal system." Their professional colleagues in Georgia have asked for support from legal educators in the United States and Europe in trying to stop the violations by Russia of international norms and of Russia's efforts to defeat the progress of Georgia toward the Rule of Law and its values. They go on to say that they do "not seek to take sides in the underlying political and ethnic controversies. We seek only your support for the Georgians' desire to have freedom from military attack and from interference in their work to a strong system of justice and law."

I rarely sign petitions, in part because I think that something worth saying is worth saying in one's own voice, though I like to think I would have signed the Declaration of Independence. Group letters come with a kind of agency problem. Someone asks you to sign a letter, and you have less ability to inquire into the facts behind the cause, and so forth. Here, I think we tend to root for Georgia because they, or at least members of the current government, are Western-leaning, like the U.S., and seek to emulate us and certainly, as we see, some of our institutions. I share these sentiments, I confess.

It is the "Rule of Law" thing that irritates. I think this is an expression I will eliminate from my own vocabulary. I take it to mean a devotion to the idea that law is above any individual, that we should not be tyrants who proceed on our own in the face of legal opposition, and that we need to effect change through the prevailing legal system, properly constituted. Unfortunately, in every conflict, both sides can argue about whether the Law was properly brought into being. Moreover, there are so many examples of heroic objections to the apparent Rule of Law that it is hard to know where to begin. Whenever there is conflict or terrorism or all-out war, educators and judges can say that the conflict is interfering with the Rule of Law because it makes the place less safe for intellectual inquiry, not to mention the accreditation of law schools. Thus, I suppose the same letter could have been issued after Georgia overplayed its hand by launching an attack on Tskhinvali, capital of South Ossetia. In that case, the letter would have declined "to take sides" but would have criticized the attack as bringing about instability and thus threatening the Rule of Law. I do not mean to say that everything is contextual, that there are no rights and wrongs, and all that. We do need a vocabulary to object to tyranny, to oppression, and to unnecessary violence. But I do not think that the Rule of Law provides, or any longer provides, the right words or sentiment. It is simply too easy and far too common for both sides in a debate to claim the Rule of Law. And in the Georgia-petition case, if it simply means that stability and peace are helpful to one's enterprise, then again too much can be said to offend the Rule of Law. 

I think these petitions do have meaning. Readers of newspapers are often confused about issues of the day and the citizenry can be influenced by news of a large number of educated persons choosing to speak out. Moreover, it is good to speak out. But I would rather not do so under the guise of protecting the Rule of Law.

Audio: Richard Epstein and Cass Sunstein: "Should Conservatives Vote for Obama?"

Back in March, Chicago's chapters of the Federalist Society and the Black Law Students Association cohosted a very well-attended debate on the question of whether conservative voters should support Barack Obama's presidential bid. Cass Sunstein (then Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, now Visiting Professor of Law, as well as informal adviser to the Obama campaign) discussed why he thought some conservatives would embrace Obama, while James Parker Hall Distinguished Service Professor of Law Richard Epstein pointed out a number of Obama's economic positions that he thought would be troubling to conservative voters. You can listen to the discussion by downloading the .mp3 file.

The 2008 Fulton Lecture in Legal History: Gerhard Casper, "Forswearing Allegiance"

Each year the Law School holds the Maurice and Muriel Fulton Lecture in Legal History. Created in 1985, the Fulton lecture brings a prominent legal historian to campus to discuss an issue in legal history. The 2008 lecture, presented on May 1, featured the return to Chicago of Professor Gerhard Casper, former Dean of the Law School (as well as President Emeritus of Stanford University). Professor Casper discussed the requirement that new citizens of the United States abjure prior allegiances and the way that requirement reflects upon historical concepts of citizenship.

Video of the lecture is embedded below, or you may download a .mov or .mp3 file; a written version of the lecture is also available. Transcripts and recordings of past Fulton lectures are available on the Law School website.

Where Have You Gone Bill Patry? A Copyright Nation Turns Its Lonely Eyes to You

Yesterday, Bill Patry announced that he was closing The Patry Copyright Blog. For those of us who follow copyright, this is a major loss; I feel less informed already.

You should read Bill’s post. He has two reasons for leaving, first the inability of some readers to separate the blog from Google—Bill went to work for Google long after starting the blog—and second depression over the current state of copyright law. To quote from the post:

 

“Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.”

 

I don’t agree with much of that, but I do agree that copyright law faces real challenges. For most of its recent history, copyright law has regulated professionals, not amateurs. Amateurs lacked the means to create and copy at any level of real scale, but professionals could do so. Copyright controlled that, but note that that control wasn’t self-executing. That is, the control didn’t just happen. Instead, copyright created causes of action and then lawsuits for infringement. That is an expensive system to run, but one that can be tolerated when the number of violations is relatively small. Mass democratization of copying technology means that amateurs pose real risks to professionals. Not just perfectly legit we-can-author-and-distribute-too risks, but pure copying risks. An enforcement technology that isn’t self-executing doesn’t work, hence the mixed attempts with digital rights management technology.

In doing this post, I wanted to make sure that I had the lyrics right. I ran “lyrics mrs. robinson” on Google. The top result was available at an ad-supported lyrics site. (Interestingly, that site didn’t even make the first page at Cuil.) The lyrics are used without permission, I assume, but we are told that “all lyrics provided for educational purposes only,” so I guess everything is copyright-kosher. Of course the site itself bears a copyright notice in favor of the site owner.

I also assume that if they were using the lyrics with permission, they would probably get them right. So the S&G reference to Joe DiMaggio is said to be to “Jotting Joe.” Apparently he must have taken notes all the time; who knew?

Chinese Antitrust Law: The New Face of Protectionism?

Today, China’s new Antimonopoly Law goes into effect. This comprehensive antitrust makeover is celebrated in some quarters as a significant step in China’s transition to a market economy. But the new law is also worrisome, for it could be used to protect national corporate champions while keeping foreign corporations out of the Chinese market. And if China follows this course, the options for the rest of the world are grim.

On its face, the new Chinese law is neutral. It subjects both foreign and domestic corporations to antitrust scrutiny. The law purports to promote economic efficiency and advance consumer welfare, which are appropriate goals of antitrust law. But the law also contains several ominous provisions, including a clause subjecting foreign acquisitions of Chinese corporations to a “national security review.” The law further defines “national security” to include economic security, opening the door for the Chinese officials to block any foreign transaction that significantly impacts the structure of the Chinese economy or, as some fear, that Chinese authorities simply do not like. An antitrust law that on its face is designed to open markets can be a powerful tool to close them.