The University of Chicago Law School Faculty Blog

Audio: Milton Friedman on "Capitalism and the Jews"

If you're looking to something to do during that extra hour this weekend, you may want to check out an audio file that was just uploaded to the Law School's website: a talk by legendary University of Chicago economist Milton Friedman.

This recording was made on October 15, 1978 by James H. Fox, JD '78.

The speech was originally scheduled for the B'nai B'rith Hillel Foundation, but was moved to the University of Chicago Law School Auditorium upon the announcement the week before of his Nobel Prize in Economics.

In the talk, Professor Friedman begins with two seemingly contradictory propositions (namely, "There are few peoples, if any in the world, who owe so great a debt to free enterprise and competitive capitalism as the Jews," and "There are few peoples, if any in the world, who have done so much to undermine the intellectual foundations of capitalism as the Jews") and then attempts to reconcile them.

Student Blogger - Fall WIP: Aziz Huq is Against National Security Exceptionalism

When it comes to cases involving grave matters of national security, commentators split on the courts' role. Some think the judiciary should be heroes, bravely swooping in to protect civil liberties when passions run highest. Others think that courts should show great deference to the executive, who is in the best position to understand the scope and magnitude of the security threat. Still others advise the court to take a minimalist approach to whatever it decides, viewing the occasion of a security breach as the wrong time to experiment with sweeping opinions. But what they all seem to agree is the notion that there is something different about the judicial role in cases involving national security. And this presumption, that national security somehow presents an exceptional case in the realm of judicial behavior, is what Professor Aziz Huq seeks to undermine in Chicago's latest WIP talk.

Professor Huq first identifies five prominent theories of the judicial role in national security cases. The first is that courts exhibit "social learning", identifying and discarding erroneous security policies over time. The second is the heroic model, whereby judges are the final guardians of civil liberties, standing boldly against democratic pressures. The third, generally opposite of the second, is the executive accommodation model, by which courts are generally deferential to executive policy judgments on the theory that security matters are a quintessentially executive matter. The fourth is a view of judicial minimalism, positing that courts should be very wary of making drastic changes in national security law due to the particularly sensitive nature of subject. And finally, there is the model of "bilateral institutional endorsement", which seeks to involve, to the greatest extent possible, the other two branches of government when deciding to make any changes to the status quo. While some or all of these theories have counterparts related to judicial behavior more generally, each can be uniquely applied to the national security context. For example, while one might generally believe courts should be minimalist in their adjudicatory decisions, it is also quite possible to not subscribe to that belief as a general matter, while still thinking it compelling logic within the particular arena of national security. The "exceptional" quality of these theories is their putatively superior explanatory power in national security compared to "normal" judicial decisions.

The first problem with the national security exceptionalism hypothesis is that none of these five theories seem to do that great a job of explaining how courts actually behave in national security cases. For example, there is little evidence that the court "learned its lesson" (as the social learning model would suggest) from the nearly universally repudiated Korematsu decision, when in Iqbal it was cavalier, to say the least, about the possibility of bias and prejudice precipitating ill treatment towards a segment of the population identified with America's attackers. Likewise, the distribution of outcomes in national security cases is not so polarized as to warrant giving descriptive force to either the highly deferential executive accommodation theory, or the extremely interventionist heroic model. And while it might be said that these theories, though not explanatory on their own, might be so in the aggregate, this seems to beg the question -- particularly given that at least some of the theories (such as the heroic versus accommodation models) are polar opposites of each other.

Of course, on its own this does not show that national security is not an exceptional case; all it demonstrates is that the predominant theories of national security exceptionalism are inadequate. However, Professor Huq continues to observe that to the extent we do observe patterns in the resolution of national security cases, they seem to track broader, transsubstantive trends in the field of public law. For example, the hesitancy of courts to intervene against security decisions at the front end is perfectly consistent with the broader thrust of American law -- in general, judicial intervention aimed at preventing constitutional violations prior to the fact is the exception and not the rule, particularly in matters (such as the 4th Amendment context) where public or official safety is an important value. The broad-based decision strategies and doctrines the courts have developed for law "in general" are perfectly adequate to account for judicial behavior in the national security context as well--there is nothing "exceptional" about it.

Law School Costs at the Margin

Yesterday, the GAO released a report, reported on in the Chronicle of Higher Education, finding that the rising cost of law school was attributable to rankings and competition, rather than accreditation. Critics of the American Bar Association's accreditation scheme had pointed to accreditation requirements as the cause of increased costs. The report is based on surveys of law schools, and it concludes that although some critics had claimed that accreditation standards were a major factor in the cost of law schools, "officials for more than half of the ABA-accredited schools we spoke with stated that they would meet or exceed some ABA accreditation standards even if they were not required." The report and the conclusion miss the point.

When we say, for example, that obesity is the cause of higher medical costs, we do not mean that with no obesity there would be no visits to the doctor. Rather, we mean that it is an important explanation for varying costs, or that it is a controllable cause of higher costs. It is true that competition has raised the cost of legal education, and US News rankings, by spreading a certain kind of information has intensified this effect. Thus, a school will rank higher if its incoming LSATs are higher, and this causes schools to offer financial aid to attract high-LSAT applicants (even beyond any pre-existing preference for those students) because with these students in place the ranking will improve, which will in turn attract better students (perhaps at lower cost eventually) in the future, because on average students will prefer to go to higher ranked schools. The most obvious variable that affects costs is expenditures. The rankings give points for greater expenditures per pupil (on grounds that higher spending is likely correlated with a better education or perhaps a plusher environment). This encourages expenditures for the same reason.

But the costs that can be traced to competition ("come to my law school we have smaller classes, our own swimming pool, and subsidized public interest programs") are there, for the most part, in the absence of regulation. If a school competes by exceeding 80% of the accreditation requirements, it might still object to having bookshelves that are not needed, assistant deans who fill out required reports, and faculty or non-faculty who are tenured not because the school thinks that tenure is the right way to attract talent but rather because tenure was required by the regulators. In this as in so many other things, it is marginal analysis that matters. On the margin, ABA regulations might raise costs; evidence that something else, like rankings or competition, matters more, is a bit beside the point.

Student Blogger - Fall WIP: Julie Suk Asks Whether We Need More Gender Stereotyping in the Work/Family Balance Debate

America is rather notorious in the Western world for having a particularly thin policy for family leave. Sick persons and pregnant women find most of their rights in the Family and Medical Leave Act (FMLA), conceptualized as a broader American commitment to anti-discrimination principles. In Europe, by contrast, maternity is given special legal protection, a feature that U.S. law would reject as a gender stereotype. Presenting at today's WIP talk, Julie Suk, visting the law school from Yeshiva University's Cardozo school of law laid out the conflict in stark terms.

Each account has its problems. The American model offers a relatively thin basis for providing family leave, which partially accounts for why (legally required) maternity and paternity leave benefits tend to be limited -- being unpaid, for example. Part of this is because of the nature of the FMLA, which, as the name suggests, aggregates together both "Family" (mostly child-bearing) and "Medical" (disability and sickness) leave programs. This combination resulted from the particular process by which pregnancy began to first see protection under the law. Litigation and legislation in the 1970s sought to, and eventually succeeded, in comparing pregnancy to a disability and argued that refusing to protect persons on the basis of this particular "disability" (only experienced by women) was a form of sex discrimination. Hence, the issues surrounding accommodating pregnancy were folded into a broader program aimed at accommodating sickness and disability.

However, in practice sickness and pregnancy present very different issues for employer/employee relations. The former requires managing several thorny enforcement problems -- it isn't always facially apparent whether a person is actually sick, sickness is unpredictable and thus provides difficult management problems for HR personnel, and there is no set amount of time one can expect an employee to lose to sickness. Because sickness and childbearing are aggregated together, many employers faced with ever-more expensive sick leave demands are hostile to expansions of family leave. This is true even though child-bearing leave is typically far less intrusive, with companies (hopefully) getting plenty of advance warning, visual signals that guard against abuse (it is pretty difficult to fake pregnancy), and reasonably standardized requirements for time off (a few weeks before delivery, a few weeks afterward). These two forms of leave can be easily disaggregated -- in Sweden, for example, there is growing skepticism towards overly-generous medical leave policies, while enthusiasm for expansive family leave continues unabated.

However, part of the reason why many of the European programs are so effective is that they seem to buy in quite whole-heartedly to a host of gender stereotypes. In France, for example, it is generally prohibited for women to return to work too soon after giving birth. The stereotype that women need protection from the strains of childbirth and that they can't be trusted to work after delivery rests, at best, uneasily with more modern notions of both the female body (specifically, the women are not fragile crystals who will shatter at any strain) and female agency (that they are in the best position to decide if they are capable of working or not). Rather than seeking to overcome gendered disparities in maternal versus paternal care, housework, and discriminatory attitudes, many European models, at best, seem to assume their existence and attempt just to manage their effects. And sometimes they go further -- the extensive leave granted to new mothers in France is difficult to justify based only on physical recuperation. Rather, the purpose seems to be the French state's perspective that mother and child have a special connection, and that women need time to bond with their child. This does not mesh well with the dominant American view that the law should give no notice to stereotypical attitudes, and certainly should utilize them as the motivating basis for policy. Indeed, legal actors seem concerned that taking notice of these stereotypes will rebound against those women who do not wish to have children or are not primary caregivers (but are assumed to be).

And this is what creates the paradox. We don't want to perpetually recreate and reproduce the disparate treatment which place women with disproportionate obligations towards children, childcare, housework, and other such activities. On the other hand, we don't want to ignore the reality that -- in the present world -- it is the case that this does describe the position of many women today. Family leave policies need to simultaneously accommodate a non-ideal state of affairs at the same time as they attempt to challenge it. It's a difficult tight rope to walk.

Video: Epstein Debates Judy Feder on Health Care

NYU has posted a video of a recent debate between Richard Epstein and Georgetown's Judy Feder about health care reform. You can watch the video here, and below is a sneak peek of Epstein's position, courtesy of the NYU website:

While agreeing with Feder that the system needed drastic fixes, Epstein differed stridently on what was required. Arguing that “cartel-like restrictions,” mandates, and subsidies in government programs like Medicare had caused healthcare’s woes, Epstein said that the current model of a system like Medicare was not tenable when extended to the broader population: “If all you’re going to try to do is to give everybody the same level of protection that you give to current Medicare recipients, you’ll not be able to finance it with any of the devices that she’s talking about.”

One of the primary problems, Epstein said, was that potential competitors to existing insurance firms lack free entry into local markets, resulting in insurance monopolies. He argued that Obama should pass legislation to correct a “deeply anticompetitive system,” but predicted that the administration would instead “buy off all the interest groups with corrupt bargains” and introduce taxation and cross-subsidy programs that “will bankrupt the nation.” The public health plan option, Epstein continued, would be run by a “bunch of blithering incompetents.... What you’re watching here is a grotesque concatenation of every bad left-wing liberal policy in the last 40 years, and the time has come to stop it.” Epstein prescribed instead a series of “mid-level rationalizations” involving medical malpractice and price restriction issues, as well as the application of contract law.

Audio: Richard Epstein on Patent Rights in the Supreme Court

Continuing our recent (unintentional) theme of patent law and the Supreme Court, we'd like to draw your attention to a recent Federalist Society podcast that featured our own Richard Epstein, along with Scott Kieff (George Washington University Law School), Mark Lemley (Stanford University Law School), Fred von Lohmann (Electronic Frontier Foundation), and Adam Mossoff (UChicago Law '01 and now prof at George Mason University School of Law), discussing the Quanta case. Listen to the podcast and get some more background on the case here.

Audio: Jonathan Masur on Patent Law and the Future of Economic Regulation

This year's annual First Monday lectures -- given each year to give alumni in several cities a chance to discuss with current faculty the issues facing the Supreme Court in its upcoming term -- were presented by Assistant Professor of Law Jonathan Masur. His talk was entitled "The Assertive Supreme Court: Patent Law and the Future of Economic Regulation." The version presented at the lecture in Chicago last week is now online.

Student Blogger - Fall WIP: Christopher Serkin Takes on Existing Uses

The leaves change, but WIP talks carry on through the fall and into the winter (which, this being Chicago, should begin in a week or so). This Thursday, Visiting Associate Professor Christopher Serkin presented on the topic of existing uses in land regulation. The prevailing view is that, by and large, the government is constitutionally forbidden from regulating away (via, for example, zoning) an existing use of your land. So if you've already built a grocery store, and the planning board rezones your neighborhood as residential, the board can't force you to tear down the store. And this makes intuitive sense -- imagine the havoc it would wreak if the government could rip down every house on a block because they were too close to the street to satisfy a (newly passed) setback regulation?

But, Professor Serkin argues, our intuitions are at least partially misguided. To be sure, there are many excellent reasons for why existing uses are worth protecting. What is not so clear -- indeed, what Professor Serkin argues is simply wrong -- is to enforce a categorical constitutional rule protecting them. This, he claims, is neither justified by the existing constitutional doctrine, nor does it make sense as a normative policy.

The doctrinal arguments for the absolute protection of existing uses tend to be less arguments than they are assertions or, more bluntly, articles of faith. Courts simply take it for granted that a local body cannot regulate away an existing use, without explicitly locating it in any constitutional doctrine. Though some support can and is mustered from, for example, the Takings Clause, it is usually insufficient -- showing, certainly, that existing uses are often worth protecting, but not in any way demonstrating the need for a general rule. For example, the hallmark Penn Central case protects against diminution of value -- certainly something which would implicate many existing uses. But not all of them: one could easily imagine the case of low-income housing in a rapidly gentrifying neighborhood, where the redevelopment of the land would in fact increase the underlying property value.