The University of Chicago Law School Faculty Blog

Student Blogger - When it Comes to Legal Opinions, Does Name-Dropping Work?

The debate is over.  It is empirically settled: Cantwell v Connecticut is the most influential United States Supreme Court case of all time; Branzburg v Hayes is the most well-grounded. So says a recent paper by Professor James F. Spriggs II and his coauthors entitled Network Analysis and Law: Measuring the Legal Importance of Precedent at the U.S. Supreme Court.  Spriggs addressed the Workshop on Judicial Behavior Wednesday evening to discuss the paper in which he and his coauthors apply network analysis (typically used for computer science and sociology) to legal opinions.  Their aim: to identify “the most legally central” Supreme Court cases.

Network analysis studies the relationships between things, be it people, information, or computers. Analysts study the connections (“links”) between the things (“nodes”) to determine the centrality or prestige of nodes within the network. 

Spriggs’ paper used Supreme Court opinions as nodes and citations within opinions as links.  Using this framework, the paper coded “outward citations” (all precedents a given case cites) and “inward citations” (all the opinions that cite a given case).  Using this technique, the paper created a network of all Supreme Court majority opinions between 1791 and 2005. 

Douglas Baird on Proposed GM Bailout

Last week, Harry A. Bigelow Distinguished Service Professor of Law Douglas Baird appeared on NPR's Morning Edition to discuss the proposed government bailout of GM. You can listen to Prof. Baird on NPR's website.

Update: Prof. Baird also appeared on CNN on Friday to discuss GM. You can read the transcript here.

Democracy, Religion and Proposition 8

How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California’s Proposition 8, which forbade same-sex marriage.

In a democracy, the majority of citizens ordinarily may enact whatever laws they want. Some laws, however, are prohibited by the Constitution. For example, the majority of citizens may want a law denying African-Americans the right to vote or prohibiting Muslims from attending public schools, but such laws violate the Constitution.

Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.

The virtues of virtues in the law? Being humane to animals

Hi everyone,

I’m posting here as a guest on the invitation of Professor Nussbaum. I am sympathetic towards her work, but have also been a persistent –and I hope constructive- critic of it. I teach at a Jesuit liberal arts college, and have just returned from teaching four years in the United Arab Emirates, at American University of Sharjah -- a highly successful and ambitious university accredited by Middle States and hosting students from over seventy countries. So do not assume I understand much of the law. My emphasis has always been on forming undergraduates, which is where my passion lies.

I see that you are debating Christine Korsgaard’s theory of obligations to animals. It should really be called a theory of obligation to animals, and not to other animals, because it is a theory of obligation to animal, as opposed to rational, nature. If the expression weren’t odd, it might be best to refer to her theory of obligation to animality. Doing so would make it easier to see one of Professor Nussbaum’s criticisms, that Korsgaard’s theory is still indirect: what merits respect in animals is that they have stuff that we have when we respect ourselves, that stuff “animality”. It’s not like they themselves make claims on us in the ways they are different than us. So much for the moral attitude everyday people call “respect” –- that attitude that attends to others because of their differences.

What I want to do here is to lay out a few controversial ways of going about the problem of the moral status of animals. These will be underargued and incomplete, but that is all well and fine for starting a debate.

Student Blogger - Are Our Reactions to "Willful Breach" Rational?

Imagine you are at the airport gate waiting for a flight home on Christmas Eve, and an announcement is made: your flight has been overbooked. Even though the airline offers significant compensation, and even though you know this is a standard practice from which you benefit in the form of lower ticket prices, you are (probably) quite angry. Or imagine that you have ordered a custom bicycle from a high-end shop. Later you go to pick it up only to find out that the shop has sold it to someone else who made a better offer. Even though the shop refunds your money and offers you a valuable coupon, you remain angry and might resolve not to do business with the shop anymore.

Both examples are cases of "efficient breach," which law and economics scholars have powerfully argued should not be punished above and beyond standard compensatory remedies for contract breach. According to the standard account, these kinds of actions are in fact social-welfare maximizing (so long as the "victim" is compensated), so that even if we are (possibly irrationally) aggravated by them individually, we should permit and even celebrate them as a society, and at a minimum refrain from punishing them. At least doctrinally, this describes the law (at least in the US) - it does not entitle you to any extra compensation for these "willful" breaches of contract.

But this is not always true in practice - courts in the US often award punitive damages or similar remedies for breaches of contract characterized as willful. In other countries, particularly those with civil law systems, the law may explicitly provide for different penalties for willful and non-willful breach. Why doesn't practice match up with theory and doctrine? More deeply, why are even economists and others who pride themselves on rational thinking still aggravated by these kinds of behavior when they experience them?

Professor Omri Ben-Shahar has attempted to answer these questions in his paper (with Professor Oren Bar-Gill of NYU) "An Information Theory of Willful Breach," which he presented at this week's Works in Progress (WiP) talk at the Law School.

Student Blogger - Chicago’s Best Ideas: Dean Saul Levmore on “The Internet’s Anonymity Problem”

Update: Dean Levmore's talk is now available as an .mp3 file.

The walls of the Law School's bathroom stalls used to display the student body's complaints about professors and fellow students, but the internet made those walls obsolete. Is the internet different from the bathroom stalls in some fundamental way? Does the internet mark a break from the paradigm of previous media? Dean Levmore does not think so.

On Tuesday, November 11, Dean Saul Levmore gave a talk on "The Internet's Anonymity Problem" as part of the Chicago's Best Ideas lecture series. His main contention is that the internet is not different from other media and should be subject to the same legal regime. Currently, it is not; § 230 of the Communications Decency Act provides that internet service providers (ISPs) are not publishers with regard to user-generated content, so they are for the most part not responsible for online torts committed by their users. (One questioner pointed to Fair Housing Council of San Fernando Valley v Roommates.com (9th Cir 2008) (en banc), where Judge Kozinski wrote an opinion holding a website liable under the Fair Housing Act for discrimination committed by its users, but Levmore remarked that the case is an outlier because, after all, it was written by Judge Kozinski.) If a newspaper, on the other hand, publishes a defamatory letter to the editor, the newspaper may be sued. The most commonly cited reason for the nonpublisher rule in the legislative history of the Act is that the internet is a new medium, so it should be allowed to develop and flourish. But the Act was passed twelve years ago, and the internet has matured since then, so it is time to take stock.

Student Blogger - Simon Blackburn: "Religion and Respect"

On Monday, Simon Blackburn presented his paper, “Religion and Respect,” to the Law and Philosophy Workshop. This paper explores the nature of respect and its boundaries, particularly when one is confronted with false beliefs or other beliefs that one does not share. Blackburn does not get into the political implications of his theory in this paper, but it should surprise no one that his views on the subject are that religion should not have a special place in the political sphere.

Blackburn, an avowed atheist, begins with an anecdote from a time in his life when his feelings on religion were close to those of Richard Dawkins. As will be mentioned below, he has since admitted some admiration and respect for certain human achievements that have religious origins, though his respect for them is not based on this feature of their etiologies. Blackburn was invited to dine at the home of a Jewish colleague on a Friday night. This colleague had never made it clear to Blackburn that he was observant, or that this dinner would have a religious element. When asked to participate in the ceremonial aspects of this Shabbat celebration, “put on a hat, or some such,” he felt uncomfortable. He did not want participate in the religious ceremony because he did not want to express beliefs or feelings that he did not himself possess. These include beliefs about the existence of God and what He requires as well as special feelings of community based on these beliefs being shared. He was told that the only significance of his participation would be a showing of respect for his host’s beliefs. His reply was that this too was unacceptable and he could not participate. 

Student Blogger - When Good Kids Go Bad

Suppose I was to ask you to make a wager on which of two juveniles was more likely to be delinquent, the straight-A superstar or the middle-of-the-road everyboy or everygirl. Where would you put your (presumably hard-earned) cash? Well, if you subscribe to the received wisdom in the study of juvenile delinquency, this should not be a particularly taxing decision.  School attachment has long been shown to be inversely related to delinquency, and insofar as grades serve as a rough proxy for attachment, theory would counsel betting on Mediocre Mike being a delinquent, not Superstar Sally. That is, unless Sally and Mike are inner city youth.  This counterintuitive result—that good grades have a positive interaction with delinquency in neighborhoods of high disadvantage—is exactly what Professor Robert Crutchfield of the University of Washington presented at the University of Chicago Crime and Punishment Workshop this past Thursday.

The Theoretical Basis of Animal Entitlements: A Response to Christine Korsgaard

We are all enormously grateful to Christine Korsgaard for her characteristically lucid and insightful lecture on the basis of animal entitlements.  Her paper will be appearing in the Handbook on Ethics and Animals, ed. T. Beauchamp, Oxford University Press, alongside a paper of mine in which I sympathize with many of her major conclusions and with her critique of Utilitarianism, but then reflect on subtle differences between her Kantian position and my own neo-Aristotelian position.  I post here three sections of that forthcoming paper (whose title is "Animal Thinking and Animal Rights").  I hope this exchange will give readers a richer sense of the theoretical options in this area and also of the important distinction (important to both Korsgaard and me) between an ethical view and a political view:

Equality and Liberty: a Reply to Richard McAdams

Richard McAdams's forceful reply requires me to clarify my view about the relationship between non-establishment and liberty.   First of all, I do not hold that equality is the only value protected by the Religion Clauses.  Throughout my book I emphasize that liberty must be understood to be a separate value.  We could satisfy equality by a regime in which nobody had very much liberty, and that would be a very bad regime.  Consider, as an analogue, the treatment of sexual orientation under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  According to Justice O'Connor, in her concurring opinion in Lawrence v. Texas, sodomy laws should be struck down because they offend against equality (in the sense that the Texas law was limited to same-sex acts).  The majority opinion, authored by Justice Kennedy, argues (following the analysis proposed by Lawrence Tribe), that liberty is the key value, and that the Due Process Clause is its home: we do not want a regime in which all have equal sexual liberty but nobody has very much of it.  (Justice O'Connor did not actually reject that idea, since her point was that equality grounds sufficed to throw out the sodomy law in question, and that this narrower ground would not require the Court to overrule Bowers v. Hardwick: so she may not ultimately have disagreed with Justice Kennedy's analysis, she just thought it was too much too soon.)