The University of Chicago Law School Faculty Blog

Celebrating 25 Years of Frank Easterbrook on the Bench

In 25 years, Judge Frank Easterbrook has written opinions from the Seventh Circuit Court of Appeals bench with far-reaching influence, all the while continuing to mold young minds through teaching at the Law School and producing scholarship with characteristic incisive legal analysis.

It was only fitting, then, that the Law School and the University of Chicago Law Review should hold a celebration of Easterbrook's first quarter century on the bench.

In events titled "'The Interrogation Is Unceasing': A Quarter Century of Judge Frank Easterbrook on the Seventh Circuit," ten Law School professors in three panel discussions dissected Easterbrook's most significant opinions and the effect they have had on the legal world at large. Easterbrook attended each of the panels, which were held Jan. 11-13, and provided feedback to the panelists' observations.

This week's Faculty Podcast is a three-for-one deal, featuring recordings of all three panels. Subscribe here, or you can listen to them, watch video of the events, and read more about the events on our website.

Student Blogger - Winter WIP: Tom Ginsburg on Executive Term Limits (and their Evasion)

For most of its history, the United States had an unwritten term limit on Presidents of two four-year terms. This sufficed until World War II, where President Franklin Delino Roosevelt ignored the rule and served four terms, prompting a constitutional amendment. Other countries, such as Honduras and Venezuela, have seen efforts (failed and successful) to amend the constitution to allow incumbent president's to serve beyond previously established term limitations.

It is these evasions of term limitations -- presidential "over-stayers" -- that interest Tom Ginsburg in his latest work in progress (with Zachary Elkins and James Melton), "On the Evasion of Executive Term Limits". In systems with fixed term limits, we can divide executives into three categories: (1) understayers (those who serve for less than the constitutional maximum, for example, those who lose a re-election campaign, retire due to illness, or are removed in a coup), (2) those who serve the maximum term and then exit punctually (George W. Bush or Bill Clinton), and (3) overstayers, those who take action to stay in power beyond the constitutionally-governed rules in place when they entered office.

A plurality of executives are actually understayers, and most of those leave for "normal" reasons (election defeat or retirement). Professor Ginsburg, however, is most interested in the interplay between categories two and three. Amongst executives with an opportunity to overstay, a not-inconsequential number (nearly 20%) stay longer then they would otherwise be allowed. They do this via constitutional amendment, declaration of emergency, or by simply rewriting the constitution wholesale. And these figures might understate the problem: they don't include, for example, an executive who installs a crony or relative to take his or her place upon retirement, or one who simply diverts power to a new office and assumes that upon retirement (in both cases, think Vladimir Putin).

Measuring all reported instances of executive overstay, the authors found (among other things) that older leaders were more likely to overstay than younger ones, leaders with military backgrounds were more likely to overstay compared to executives with other backgrounds (generally lawyers), and that a history of overstays actually decreased the likelihood of repetition (each time an executive overstayed, it decreased the probability that next executive would do the same). Moreover, they found that overstay via "extra-constitutional" means was becoming increasingly rare, and that overstay rarely seems to provoke a constitutional crisis.

The paper also examines way that countries can guard against executive overstay. It's worth noting here that this presumes that overstay is a problem and, as a corollary, that term limits are a good thing -- something that is not necessarily clear. Most obviously, term limits prevent the polity from re-electing a leader that they otherwise would support -- it is an interference with pure majoritarianism, possibly deprives a country of experienced leaders, raises the problem of what to do with retired, former presidents, and forces voters to select a devil they don't know over one that they do. There are, of course, solid arguments for term limits -- overcoming voter apathy, guarding against tyrannical instincts, preventing executives from entrenching themselves indefinitely via corruption and fraud -- the point is that the debate over how to check against overstay necessarily presumes certain conclusions about the usefulness of term limits.

Professor Ginsburg forwards several institutional models for reducing overstay. Countries could offer rewards to executives who step down on time. These rewards could be monetary (such as Mo Ibrahim's $5 million award, plus $200,000 a year for life, to African leaders who step down from power) or governmental -- France makes all ex-presidents ex officio members of the country's constitutional court. For many leaders, international opportunities with the United Nations or other international organizations might help cushion the blow of being out of power. Alternatively, countries could modify the electoral system to account for incumbency advantages -- the authors consider a version of Bruce Ackerman's "supermajoritarian escalator" in suggesting that incumbents should have to gain ever-higher shares of the voters each time they run for re-election (plurality in the first run, majority in the second, 55% in the third, and so on).

The broader point is that, regardless of whether one generally thinks fixed executive term limits are advisable or not, the debate would benefit from an infusion of empirical data. How often overstay threatens the political fabric of a country, which policies are effective in checking overstay and which policies are not, and what factors make overstay more or less likely are all of use to policymakers seeking to construct governmental systems with an eye towards writing the rules of the executive branch.

Video: Martha Nussbaum, "Same-Sex Marriage and the Constitution"

In October of last year, The University of Chicago Lesbian, Gay, Bisexual, Transgender (LGBT) Alumni Group presented a lecture by Ernst Freud Distinguished Service Professor Martha Nussbaum, lecturing on the legal and moral debates surrounding same-sex marriage in the U.S. The post-lecture discussion was led by Melanie Rowen, AB'99, JD'04, attorney at the National Center for Lesbian Rights. This talk was recorded October 22, 2009.

Student Blogger - Philosophy of Utility, Utility of Philosophy

Speaking on the topic of Utilitarianism with the Law and Philosophy Workshop, denizen of the Seventh Circuit and favorite of the Law School, Judge Richard Posner offered the mischievously understated opening: “I don’t really have much interest in the normative side of Utilitarianism.”

This might strike some as odd coming from a thinker popularly associated with the view that judges ought to pursue economic efficiency as a primary goal (a description most recently repeated in January 11^th’s New Yorker).  Posner elaborated that Utilitarianism has been extremely valuable for focusing our attention on practical consequences and for providing a tool to debunk the talismanic use of powerful words like “justice” and “rights.”  But Utilitarianism, taken as a normative doctrine, is plagued by “insuperable boundary problems.”  (With respect to economic efficiency, Posner noted that efficiency is one thing a judge might value, but there are other things that might factor into finding the “best” law.) 

Student Blogger - The Mysteries of the Roman Sales Contract

Even as turning to the social sciences for insight into the law remains all the rage among the legal academy, there are those who turn not to the present for those insights but to the past. One such individual is Professor James Gordley of Tulane Law School, who was in town last week to present his new paper, The Origins of Sale: Some Lessons from the Romans, at the first meeting of the Public Law and Legal Theory Workshop of the new year.

Student Blogger - Winter WIP: Stone's Ten Things We've Learned About Free Speech

Geoffrey Stone delivered this week's WIP talk, entitled Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century. At the start of the 20th century, there was virtually no free speech doctrine. The jurisprudence of the First Amendment developed through World War I, the red scares, McCarthyism, and Vietnam into what we have today: an imperfect, still developing, but cohesive model that remains the global standard (excepting a few high profile areas, like hate speech).

Student Blogger - Winter WIP: Leiter/Dworkin Beef Hits Chicago

In Justice in Robes, Ronald Dworkin identifies a “Chicago School of no-nonsense jurisprudence” that he associates with Judge Richard Posner.  In the new year's first WIP talk, Brian Leiter’s work-in-progress, "In Praise of Realism (and Against 'Nonsense' Jurisprudence)", recasts the Dworkin-Posner dispute as a disagreement about two different kinds of theories that he dubs “Moralism” (Dworkin) and “Realism,” a dispute whose history Leiter traces through Thucydides, Plato, Nietzsche, and Rawls, among others.  The title of Leiter's piece is itself a jab at Dworkin's efforts to distinguish his "moralist" jurisprudential model from the "realists." Dworkin refers to himself as praising a "theoretical" account of judging, in contrast to the "anti-theoretical, no-nonsense jurisprudence" of his opponents. So, Leiter responds that this must make Dworkin an exponent of "pro-theoretical, nonsense jurisprudence".

Leiter's allegation is that Dworkin effectively has no account of how judges behave. Instead, he labors under Platonic "optimism" that simply takes on faith that a world properly understood will make moral sense. Consequently, when looking at how judges decide cases, we should take them at their word when they tell us they're decide cases in a way that is coherent with what comes before, is morally correct, and represents the one true "right" answer as a matter of law. And more importantly, we should do this even in the face of considerable empirical and social science evidence indicating alternative explanations. Dworkin wants to instead locate the "hidden logic" of judicial decisions in their "justificatory ascent" -- the degree to which we can hold judicial decisions accountable to the big principles inlaid within the legal regime.

But this isn't really what happens. Consider the example of the "privity of contract" doctrine rejected in MacPherson. It wasn't that MacPherson grasped, in any real sense, the "real" principle that had been progressively developed in prior cases applying the "inherently dangerous" standard. Rather, what had happened is that the latter standard had dissolved into near-complete incoherence. Circumstances changed, the rule no longer made sense, so Justice Cardozo resolved to change it. Neither Dworkin nor, for that matter, Cardozo provide any traditional legal justification for why the change occurred. The story of a "justificatory ascent" is nonsense made up after the fact. Without the pre-existing Platonic commitment to the notion that any sensible account of the world will also make moral sense, there is no reason to substitute perfectly good explanatory accounts of judicial behavior for poor ones because the latter have the "advantage" of conforming to systematic moral vision.

To be clear, Leiter is not opposed to pressing for particular normative claims, in legal contexts or elsewhere. The problem is when such commitments are recast as descriptive accounts of how courts actually operate. Realism, as the name indicates, is about clear, untinted descriptions of what courts really are doing. This is quite consistent with trying to muster whatever rhetorical, persuasive, or organizational tools available to get them to do something else.

Student Blogger - Moral Relevance and the Demand Curve

Our good friend Jones has amassed a fortune through an enviable recipe of hard work and clean living. Jones has no heirs, and unfortunately for us, does not consider us to be particularly good friends of hers. Actually, she has said repeatedly that she sees little point in leaving even a cent of her money behind when she dies.

Sadly, in the past week Jones learned that she has a life-threatening brain tumor. Given the standard medical treatment, covered by the medical insurance plan Jones selected for herself, doctors tell Jones she has a 10% chance of surviving beyond one month. However, one doctor in the country has developed a ground-breaking new technique called the “super gamma knife.” This safe technique costs $10 million and imposes remarkable social costs (the doctor has to notify the local power companies before each procedure to avoid brownouts, and performing the procedure takes him away from his work as a youth mentor). But the procedure would increase her chance of surviving beyond one month to 15%. Relevantly, when researching health insurance, Jones opted against purchasing the super-expensive “DeLorean” plan, which would have covered this type of futuristic procedure.

Jones realizes that $10 million is a lot to spend for such a small increase in her chance of survival, but since her money is worth nothing to her after she dies, she might as well pay for the cutting-edge technique.

Professor Ariel Porat, in a developing paper co-authored with Avraham Tabbach and Omri Yadlin, suggests that this story should bother us for a number of reasons. Porat discussed the paper with the Law and Philosophy Workshop.

Dean Levmore Early Career Quiz -- ANSWERS

Here are the answers to the brief quiz I posted at the end of last quarter, concerning an article that the student newspaper at the University of Virginia Law School published on September 12, 1980 about the newest professor there, Saul Levmore.

1. What was the headline of the Virginia Law Weekly article about the newly arrived Saul Levmore?
    A. "Young Professor is the Newest Economist on Faculty."
    B. "Professor Levmore Loves Games, Puzzles, and Teaching."
    C. "Wunderkind Levmore Supplies Demand for Didactic Dynamo."

        ANSWER: Our own Professor Brian Leiter and Case Western Professor Robert Strassfeld both guessed B, but the answer is C. That's the one title I am not clever enough to have made up.

Here are the answers to the brief quiz I posted at the end of last quarter, concerning an article that the student newspaper at the University of Virginia Law School published on September 12, 1980 about the newest professor there, Saul Levmore.

1. What was the headline of the Virginia Law Weekly article about the newly arrived Saul Levmore?
    A. "Young Professor is the Newest Economist on Faculty."
    B. "Professor Levmore Loves Games, Puzzles, and Teaching."
    C. "Wunderkind Levmore Supplies Demand for Didactic Dynamo."