The University of Chicago Law School Faculty Blog

Audio/Video: Mary Anne Case on State Recognition of Same-Sex Marriages

If you've ever wondered what Arnold I. Shure Professor of Law Mary Anne Case and former Chicago professor (and current Supreme Court Justice) Antonin Scalia might actually agree on, have we got a Halloween treat for you. The first Chicago's Best Ideas talk of the year, held on October 1, featured Professor Case discussing "Why Evangelical Protestants are Right When They Say that State Recognition of Same-Sex Marriages Threatens Their Marriages and What the Law Should Do About It." Video of the talk is embedded below, or you may download an .mp3 or .mov file for your portable media player.

In re Bilski: The Fed Circuit Tells Inventors to Stuff It

This morning, the United States Court of Appeals for the Federal Circuit released its eagerly-awaited decision in Bilski. In a 9-3 decision, with five opinions spanning 132 pages, the Federal Circuit sharply cut back on the availability of patents for processes. In so doing, the court substantially stepped back from its prior decision in State Street Bank, the decision that brought us the business-method patents controversy. That said, as emphasized in the three dissenting opinions, there is much that is uncertain in today’s majority opinion and even the precise status of State Street Bank is left open. And the opinions betray substantial differences about the role of patent policy in fostering innovation, especially about the stuff of yesteryear and the bits and bytes of the modern economy.

To set the stage quickly, in 1998, the Federal Circuit issued its landmark ruling in State Street Bank. That decision considered the patentability of a system for computerized mutual funds pooling. That required a consideration of section 101 of the Patent Act which provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

Wither the Exclusionary Rule?

On October 7, the Supreme Court heard argument on a significant Fourth Amendment issue –- application of the good faith exception to the exclusionary rule –- that could lead to a dramatic contraction in the primary remedy for Fourth Amendment violations. The case is Herring v. United States. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding arrest warrant for him. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier. There being no warrant nor any probable cause for Herring’s arrest, it was plainly illegal.

The normal remedy would be to exclude the evidence found as a consequence of the illegal arrest. But the prosecutor convinced the lower courts to instead extend the good faith exception to the exclusionary rule.

What Can Corporate Law Teach Constitutional Law?

In 2003, I argued in the Yale Law Journal that constitutional law can learn much from corporate law with respect to the protection of minorities.  The Yale Law Journal has now revisited my argument in Minorities, Shareholder and Otherwise, by inviting three leading scholars--Steve Bainbridge, Richard Delgado, and Kevin Johnson to comment on the piece.  I introduce this online symposium and also respond to the comments. 

The Yale Law Journal has now published an online symposium on my paper through its Pocket Part, with an introduction and a response by me. 

Student Blogger - Aggregating Probabilities across Offenses in Criminal Law

Professor Ariel Porat recently presented his paper (with Alon Harel), Aggregating Probabilities across Offenses in Criminal Law, at the Law and Economics Workshop. This is a forum where academic working papers are presented and discussed among interested faculty and students.

To be convicted for a criminal offense, it must be proved beyond a reasonable doubt that the defendant committed the offense. This currently remains true even when the defendant is charged with multiple offenses. He must be guilty beyond a reasonable doubt for each individual offense. As a result, some criminal defendants may remain unconvicted of any offense even though it is likely that the defendant committed each offense (but not beyond a reasonable doubt for any single offense), and almost certain that he committed at least one of the offenses (beyond a reasonable doubt).

Professor Ariel Porat argues that the probabilities for these individual offenses should be aggregated so that such defendants are convicted of some crime. The question should be whether it is beyond a reasonable doubt that the defendant committed an offense instead of whether it is beyond a reasonable doubt that a defendant committed a specific offense. This reformulation certainly would result in more criminals being convicted (increasing deterrance), but it would also increase the number of innocent people falsely convicted. The desirability of this approach hinges on minimizing the latter.

Student Blogger - Towards a General Theory of Making it Rain

Abandonment of property is arguably bigger than ever. To give a few examples, craigslist and freecycle.org have become popular venues for giving away property for nothing other than the hassle of picking it up. Many jurisdictions have established laws and procedures allowing abandonment of children without prosecution, most controversially in Nebraska, where recent abandonment of teenage children has caused controversy. In some segments of pop culture, the practice of "making it rain," or throwing cash to a waiting crowd with predictably chaotic results, has become popular - either as a means of signaling wealth or simply providing entertainment.

What, if anything, does law have to say about these and similar practices? How could it do a better job in dealing with them? Professor Lior Strahilevitz sets out to answer these questions in his recent paper "The Right to Abandon," presented at this week's Works in Progress (WIP) talk.

Student Blogger - Chicago’s Best Ideas: Lee Fennell, “Risk Reversals”

Update: Video of Prof. Fennell's talk is now embedded below the jump, or you may download an .mp3 or .mov file.

Suppose I am a utility-maximizing, risk-averse trophy husband/wife. Currently I have a generous monthly allowance, but due to a lack of foresight (or the blindness of love), I do not have a prenuptial agreement. There has been no trouble in the marriage yet, but what if things go south? Perhaps I should put part of my allowance toward premiums on divorce insurance, which one company now claims to offer. Previously, the initial allocation of divorce risk could not be altered; now, perhaps, it can. Whether risk can be reallocated is an issue that is present in far less tawdry situations than this example; in fact, it is everywhere.

On Wednesday, October 22, Professor Lee Fennell gave a talk entitled "Risk Reversals" as part of the Chicago's Best Ideas lecture series. (The first CBI presentation on October 1 was a fascinating talk by Mary Anne Case about "Why Evangelical Protestants are Right When They Say that State Recognition of Same-Sex Marriages Threatens Their Marriages and What the Law Should Do About It.")

The "stickiness" of risk allocations motivates Fennell's analysis. Many scholars have proposed new mechanisms for shifting risk. Fennell's investigation, however, tackles the analysis at a different level; rather than ask whether any particular risk-shifting scheme is desirable, she asks how easy or difficult, given an initial allocation of risk, transacting away from that allocation should be. Buying life insurance is easy, but selling my ability to bring a tort claim if my spouse dies in an industrial accident is difficult. I must buy car insurance, but I cannot insure against damage claims from accidents that have already occurred (although settlement is a form of insurance). How close are we to a world of Coasean risk shifting, and how close should we be?

Financial Crisis Double Feature

Like most everyone else, the Law School faculty are talking about the current financial crisis and governments' attempts to resolve it. So we've combined last week's scheduled Faculty Podcast with this week's scheduled Open Minds podcast to bring you two recent faculty panels about the bailout plan. The first, recorded on October 9th and sponsored by the Federalist Society, featured Douglas Baird, Anupam Chander, Rosalind Dixon, and M. Todd Henderson. The second, recorded on October 15th, was sponsored by the Law School Democrats and Law School Republicans and included  Randy Picker, Douglas Baird, M. Todd Henderson, and the GSB's John Cochrane (you can also read a summary of the panel here).

Student Blogger - Did Anyone Notice When Colonel Bogey Marched into the Public Domain?

Professor Paul Heald on Copyright Extension and Early 20th-Century Music Compositions

In 1988, works from the early 20th century began entering the public domain, a process that continued until Congress passed legislation extending copyrights in 1998. Were the musical compositions "freed" during this window performed any more (or less) often as a result?

At this Thursday's Faculty "Works in Progress" (WIP) talk, Professor Paul Heald (JD '88 and currently visiting from the University of Georgia) presented his most recent work on "Testing the Over- and Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) and Their Use in Cinema (1968-2007)." Regular readers of the blog will be somewhat familiar with Prof. Heald's work through his recent posts here but, as this paper's title clearly indicates, it deals with intellectual property, his area of greatest expertise.

Equality and Establishment: Reply to Nussbaum

I thank Martha Nussbaum for her gracious response to my post a few days ago. Here I offer a brief reply.

As to my first hypothetical -– rotating school prayers -– I agree with Prof. Nussbaum but I think the argument she makes is less about equality than liberty. I think it is right to worry that the proposal would involve coercion of schoolchildren and therefore violate liberty of conscience. But my point is that the coercion could be made to occur, more or less, on an equal basis. That the practice remains objectionable shows, I think, that there is more going on to the Establishment Clause than a respect for equality, i.e., that liberty plays at least an independently important role. Perhaps I misread Nussbaum in saying otherwise, but the point of my original post is to say that a pure equality theory leads to more unconventional doctrine.