The University of Chicago Law School Faculty Blog

Student Blogger - The Role of Judicial Incentives and Legal Human Capital in the Adaptation of Law

The common law has long been hypothesized to promote economic efficiency. Judges will implicitly (or for some, explicitly) attempt to craft legal rules that will enhance social welfare. But a judge’s ability to do so depends on their knowledge of the underlying factual circumstances and on their incentives to modify legal rules to accommodate changing circumstances. As such, the structure of the judicial system plays a large role in determining whether legal rules will be modified to promote social welfare.

Professor Gillian K. Hadfield tackled this issue in her paper, The Dynamic Quality of Law: The Role of Judicial Incentives and Legal Human Capital in the Adaptation of Law, which she presented at the Law and Economics Workshop. She used a mathematical model to explore how certain aspects of a judicial system—the incentives for lawyers to make novel arguments, and the incentives for judges to modify legal rules—will affect the evolution of legal rules in the face of changing economic circumstances. Her model can then be used as a basis for comparing different judicial systems and their efficacy in producing socially desirable legal rules.

Video: Eric Posner and Steven Davidoff on "Economic Ants and Grasshoppers"

On Monday, BloggingHeads posted a discussion between Kirkland and Ellis Professor of Law Eric Posner and The University of Connecticut's Steven Davidoff about "Economic Ants and Grasshoppers," in which they discuss where blame for the current economic crisis lies, and what could and should be done about it. A portion of the discussion is embedded below, or you can watch the whole discussion here.

Student Blogger - Leslie Green, “On Being Tolerated”

This week's meeting of the Law and Philosophy Workshop featured visiting professor, Leslie Green, presenting his paper, "On Being Tolerated." Green's focus is on the "sting" of toleration. He observes that, although one may prefer being tolerated to being persecuted, it does not generally feel good to be tolerated. In this paper, Green looks at why toleration is often seen as inadequate to its object and then suggests a companion principal, understanding, that he argues will do away with much of this inadequacy.

For the purpose of this paper, the desirability of toleration as a political, and social, principle is assumed, though Green does state some of the more common justifications for this principle. One important reason for toleration is that it is necessary in order to preserve peace. "Since some people will do almost anything to advance their views, a sustainable modus vivendi needs a principle of restraint." Another reason for toleration is that it is necessary for autonomy (a version of this view was advance by Joseph Raz in an earlier workshop). A third argument for toleration is based on Burkean concerns. Green quotes H.L.A. Hart: "To use coercion to maintain the moral status quo at any point in a society's history would be artificially to arrest the process which gives social institutions their value." The process being endurance over time.

Audio: Randy Picker Discusses DRM

On the current edition of the Intellectual Property Colloquium podcast, hosted by UCLA (and former Chicago) professor Doug Lichtman, Paul H. and Theo Leffmann Professor of Commercial Law Randy Picker discusses digital rights management with Princeton's Ed Felten. According to Ben Sheffner's Copyrights & Campaigns blog,

Lichtman's interview with Picker focuses on a topic that gets much less attention than it deserves: how DRM enables pro-consumer business models. The discussion of how the Microsoft Xbox gaming console's business model -- artificially low console subsidized by Microsoft-only games -- is particularly interesting. And Picker takes the public's dislike of DRM head-on: "They hate it, but that doesn't mean anything." Picker explains that much of the "hatred" comes from looking only at the downsides of DRM, but ignoring the benefits: fostering business models that would be either more expensive or nonexistent if not for DRM.

You can listen to or download the podcast here.

Student Blogger - Mary Dudziak: Law, War, and the History of Time

December 7th, 1941 was a day that changed everything.

Or maybe not, argues University of Southern California Professor Mary Dudziak in her provocative new paper, "Law, War, and the History of Time". Presenting at the Law School's American Legal History workshop, Prof. Dudziak critiqued the common conceptions of "wartime" and "peacetime" as an artificial binary. These terms imply that war is a discrete event which starts at one concrete point in time and ends at another, followed by peace, another discrete period of time with solid temporal boundaries. By thinking of war in this way (as something episodic, often ushering in a "new era"), she claims, scholars and policy makers make at least two serious mistakes. First, the notion of concretely bounded wartimes indicates that war policies are temporary -- that is, they will expire when the war concludes. Second, when war is a discrete event, historians don't think to look for war related impacts outside these seemingly fixed temporal boundaries.

Remembering the Nazis in Skokie

This morning marked the official opening of the Holocaust Museum and Education Center in Skokie, Illinois. This striking new institution is dedicated to “preserving the legacy of the Holocaust by honoring the memories of those who were lost and by teaching universal lessons that combat hatred, prejudice and indifference.”

The seeds of the Skokie Holocaust Museum were sown more than thirty years ago, when roughly thirty members of the Nazi Party of America sought to march in Skokie. The plan was for the marchers to wear uniforms reminiscent of those worn by the members of Hitler’s Nazi Party, including swastika armbands, and to carry a party banner bearing a large swastika.

At the time of the proposed march in 1977, Skokie, a northern Chicago suburb, had a population of about 70,000 persons, 40,000 of whom were Jewish. Approximately 5,000 of the Jewish residents were survivors of the Holocaust. The residents of Skokie responded with shock and outrage. They sought a court order enjoining the march on the grounds that it would “incite or promote hatred against persons of Jewish faith or ancestry,” that is was a “deliberate and willful attempt” to inflict severe emotional harm on the Jewish population in Skokie (and especially on the survivors of the Holocaust), and that it would incite an “uncontrollably” violent response and lead to serious “bloodshed.”

Revisiting the Posner and Vermeule Argument for the Legalization of Torturous Interrogation

The release of the four torture memos this week raises a number of important questions that are nicely set out in yesterday’s New York Times editorial—including whether federal district court judge Jay Bybee should be impeached, whether he and other authors of the torture memos, including John Yoo and Steven Bradbury, should be prosecuted, and whether the “following orders” defense should be extended to interrogators who complied with the Bush administration’s torture memos.

The release of the torture memos also affords an excellent opportunity to revisit a question that was hotly debated here at the Law School in 2004 and that gave rise to an article published in the Michigan Law Review in which Eric Posner and Adrian Vermeule argued for the legalization and regulation of torturous interrogation.

Do the recently released torture memos shed any light on that debate? Should the torture memos make us feel differently about whether the legal regime that surrounds torturous interrogation—what Posner and Vermeule labeled the “OAF” approach (“outlaw and forgive”)—should be replaced by the regime of legalization and legal regulation that Posner and Vermeule proposed—what we might call an “LAR” approach (“legalize and regulate”).

Student Blogger - #13Amend Live Blog: Closing Keynote Address

Rebecca Scott's goal with the keynote was to put the arguments made at this conference in a transnational frame. It was observed earlier in the conference that redemptive history with its focus on the way that things could have been, can become ahistorical. The questions and answers are largely hypothetical, giving cause to doubt whether the suggestions are feasible and making it difficult to see what the consequences of a different regime would have been. Exploring the ways in which other nations have dealt with abolition and the ways that the individual states dealt with the freed slaves has many of the virtues of redemptive history, without the vices. Additionally, this framework will allow us to examine the ways in which many of the arguments made in this context would apply in other nations.

Student Blogger - #13Amend Live Blog: Constitutional Arguments and Political Movements

Professor Rosenberg's commentary spurred a discussion among the panels and audience. Rosenberg stated that constitutional arguments simply did not mean that much because social movements are necessary to move the understanding of the courts. Professor Ontiveros responded that constitutional rhetoric about rights was important to build a coalition within the context of a social movement. Professor David Brion Davis contended from the audience that founding documents often serve rhetorical purposes within movements; the Declaration of Independence supported abolitionist arguments.

Student Blogger - #13Amend Live Blog: Top-Down or Bottom-Up?

Gerald Rosenberg comments: Rosenberg argues that lawyers are systematically mistaken about the role of the courts and the Constitution in social change. In this country, we lack a more equal and just politics and the courts can and will only reflect this, not shape it. The panelists share a top-down notion of social change. Their implicit claim is that if the Court accepts a more expansive view of constitutional rights, social change will follow. Rosenberg's notion, instead, is bottom-up. Social change will be reflected by the Court; but it must happen first. Judicial interpretation did not begin to change until deep racism started to fade. The makeup of the Court determines how cases will go, and this makeup is a result of who is president and who is in Congress. Rosenberg went on to show the application of this perspective to the papers presented in this panel. He argues that it is wishful thinking to think that the Roberts Court would be likely to adopt Carter's theory. And even if it did, would racial profiling really end? He quipped that the Warren Court's progressive civil rights holdings changed fundamentally what police lie about. He is skeptical that racial profiling can be stopped while racial prejudice continues to exist. In response to Ontiveros, he suggests that it is unlikely that the courts will be able to accomplish anything useful in the immigration context when we have not yet figured out politically how to deal with immigration. Rosenberg agrees with Taslitz that Congress has more power to control the criminal justice system than it has exercised; however, he does not agree that it needs to, or can, use Section 2 of the 13^th Amendment to do this. The current Court is unlikely to accept these arguments even if they are technically perfect. In response to Zietlow, he argues that we need better ways of electing people who share our goals, not better Constitutional theory. He rejects the claim that politicians consider the Constitution in making policy decision. Instead, he argues that they make policy decisions first and then search for a Constitutional basis.