The University of Chicago Law School Faculty Blog

Student Blogger - Summer WIP: Bernard Harcourt on Neoliberal Penality

A lively WIP commenced Thursday with Bernard Harcourt presenting his ongoing project (previously seen as one of Chicago's best ideas) on what he calls "neoliberal penality."

The idea behind neoliberal penality is that as the norm against government intervention in the economy has increased, governmental energies have been channeled instead to an ever-increasing carceral sphere. Neoliberalism argues that the market is naturally ordered, and that government intrusion constitutes a distortion that generally should be avoided. By contrast, the penal arena is seen as an appropriate venue for government to flex its muscles. Consequently, the social forces which might press against increased penality are weakened, as crime and punishment are precisely the areas in which government is seen as having the greatest claim to authoritative legitimacy.

Student Blogger - Summer WIP: Todd Henderson and the "Nanny Corporation"

Professor Todd Henderson kicked off Chicago's Summer Works in Progress events with a presentation of his latest project, "The Nanny Corporation and the Market for Paternalism." Henderson identifies corporate nannyism as the increasing trend amongst businesses to regulate the seemingly private conduct of their employees, on the grounds that it imposes negative externalities on other members of the pool. For example, where employees all pay into company health insurance programs, non-smoking employees cross-subsidize the increased health care costs of their smoking fellows. Non-smokers thus have an incentive to agitate in favor of policies which would reduce these costs, such as differential insurance rates for smokers versus non-smokers, or even an outright prohibition on smoking. The effect of this demand is to create a "market for paternalism", which both corporations and government can seek to meet.

Importantly, Henderson locates the incentive for this sort of "nannying" activity not in any particular moral or social ideal held by the regulator (governmental or corporate), but rather as an extension of self-interest. Nannying reduces overall costs and responds to demands by employees (or citizens) who don't want to bear the costs of cross-subsidization. This contrasts with many accounts of proto-corporate nanny entities (such as "company towns"), which often focused on a sort of moral zealotry as the primary motivation for their existence.

Video: Shakespeare and the Law Conference

Last month, the Law School hosted an interdisciplinary conference dedicated to exploring the legal dimensions of Shakespeare's plays. The keynote conversation, featuring Justice Stephen Breyer, Judge Richard Posner, and Professors Martha Nussbaum and Richard Strier, was fascinating, but the real highlight of the weekend was watching the participants -- including Justice Breyer -- perform scenes from the Bard's plays, including Measure for Measure, As You Like It, and Hamlet. Video of the keynote and the scenes, is embedded after the jump.

Student Blogger - Ambiguity about Ambiguity

Professor Anup Malani on how we know when we don't know

What are judges supposed to do when statutes are ambiguous? This question is the source of endless quantities of legal scholarship and is at the core of public debates over the proper role of judges. While the is obviously important, it is hard to see how anything really new could be said. Asking this question - how to deal with ambiguity - presupposes another, however: that ambiguity exists in the first place. How do we - or any given decisionmaker - know when a text is ambiguous? Relatively little academic work has been done on this question, which would seem to be at least as important.

Chicago's Anup Malani, along with co-authors Ward Farnsworth and Dustin Guzior (both at Boston University) attempts to fill this gap with his paper Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation, which was presented at this week's Works in Progress (WiP) talk at the law school. The paper is based on an empirical study of nearly 1,000 law students.

Epstein Debates the Employee Free Choice Act

Over at the Federalist Society website, Richard Epstein today participated in a discussion with Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP), and Patrick Szymanski (Change to Win) to debate the policy and constitutionality of the EFCA. See the complete discussion here.