The University of Chicago Law School Faculty Blog

Student Blogger - Law and Econ Workshop: How Much Judicial Review?

This week’s Law and Economics Workshop featured Professor Matthew Stephenson and his paper, Judicial Review and Democratic Failure (co-written with Professor Justin Fox), available at http://www.law.uchicago.edu/node/2618.

What It’s About

Suppose a society wants its politicians to vote in a way that reflects voter preferences faithfully. In this supposed world, much like in the real world, there is a mix of competent and incompetent politicians. Incompetent politicians vote for an “ordinary” policy 100% of the time, knowing that an ordinary policy is right for the situation most of the time. But once in a while, an extraordinary situation comes up. Competent politicians will recognize such situations and adjust by adopting extraordinary policies. Incompetent politicians won’t adjust and continue backing the ordinary policy.

Sadly, this state of the world can’t last long. Voters will catch on that competent politicians come up with all the “extraordinary” policies while the incompetent ones don’t, and this will tempt incompetent politicians to masquerade as competent politicians by coming up with deviant policies of their own. Pretty soon, voters won’t be able to tell which of the unusual policies are actually good ideas. Is there anything the judiciary can do to sift out the good from the bad?

Professor Stephenson’s model offers a few predictions: Judges will be passive (i.e., defer to the legislature in everything) if the probability of incompetent politicians proposing extraordinary policies is below a certain threshold. Judges will be strict (i.e., strike down all extraordinary policies) if the probability of incompetent politicians proposing extraordinary policies is above a certain threshold. In the interval in between the thresholds, judges exercise their own judgment. The size of this zone of “judicial activism” can increase based on the judge’s belief in his/her own competence. Judge Hercules, confident in his ability to distinguish between right and wrong, will have a wider interval where he believes he can maximize payoffs by exercising his judgment. Judge Socrates, on the other hand, wise only to the extent that he realizes he knows nothing, defers to the legislature’s expertise most of the time, so he has a narrower interval.

Alison LaCroix, "Commandeering Federalism"

Yesterday, Assistant Professor of Law Alison LaCroix published a guest post over at Balkinization. The first couple of paragraphs are below, and you can read the entire post here (you may also be interested in listening to Prof. LaCroix discuss federalism in the context of the push for states' rights on the University of Utah's public radio station).

What light can the history of federalism shed on modern-day constitutional debates? Quite a lot – beginning with the important point that the search for the “real” federalism may in fact be a misguided quest. This is not to say that the idea of federalism is simply an empty shell or a rhetorical flourish devoid of content. But an understanding of American federalism’s beginnings does suggest that the Supreme Court’s recent “federalism revolution” has been neither revolutionary nor about federalism in any historically informed sense. Instead, the Court’s federalism doctrine has unthinkingly replicated centuries-old debates, even as some justices claim to have divined the concept’s one true meaning.

As I discussed in a previous post, the central tenet of federal ideology as it emerged in the late eighteenth century was a conviction that multiple levels of government could – indeed, should – exist within a composite polity such as British North America. Federalism has had a core of stable meaning since its first American incarnation as a doctrine of colonial resistance to the power of Parliament, but that meaning has centered on a commitment to governmental multiplicity itself more than a vision of a particular distribution of governmental authority. We might term this the first lesson that the history of federalism offers for modern constitutional doctrine: a reminder that overlap, concurrence, and multiplicity are and have always been the background principles of the American federal republic, not a temporary way station to be visited on the way to a more perfect – static, settled – national structure. The states may be laboratories, but we should not assume that the experiment will be able to produce a magic structural formula.

Read the entire post here.

Student Blogger - Law and Econ Workshop: Do Sentencing Guidelines Really Influence Judges?

Who says poor arithmetic skills can’t have social utility? Professor Anne Morrison Piehl put bad math to good use in this week’s Law and Economics Workshop with her paper, Are Criminal Sentencing Guidelines Binding? Quasi-Experimental Evidence from Human Calculation Errors, available at http://www.law.uchicago.edu/files/files/Piehl%20paper.pdf.

What It’s About

After discovering that about 10 percent of guidelines-based sentence level calculations in Maryland had errors, Professor Piehl, along with co-authors Professor Shawn Bushway and Professor Emily Owens, contrasted the sentences that judges impose normally with the sentences that judges imposed in instances where the parties had misidentified the guideline level (i.e., made clerical or arithmetic errors) in order to figure out how much the guideline numbers affect the judge’s final sentencing decision, all other factors being equal.

The problem with earlier empirical studies was that it was hard to isolate the influence of the guidelines system alone. If a researcher compared sentences before and after a guideline revision, the differences may reflect other changes that happened alongside the guideline change. For example, suppose the legislature increased the recommended incarceration period in response to a crime wave. Then suppose that a judge, facing this same crime wave, started cracking down with longer sentences. The longer sentences would have coincided with the increase in the guidelines, but the guidelines would not have caused the longer sentences. This study is different from earlier studies in that arithmetic and clerical errors are not correlated to judicial preferences. Since the study doesn’t use time or some intentional change to differentiate between the control and variable samples, the idea is that we can be relatively confident that the control sample and the variable sample are indistinguishable aside from the error.

What is Your Killer App for the iPad?

The iPad arrives on Saturday. Not mine, unfortunately, as I want to see it live and in person before buying, but the iPad itself. I am not enough of a fanboy to rush out to see one immediately, though I confess to be eager to do so. I owned an original 1984 Macintosh and though I long ago joined the dark side of the force—Windows—I have long admired Apple's design sense. The iPhone/iPod Touch platform has been remarkably successful and has powerfully shaped the evolution of the smartphone. I confess to having an most unnatural relationship with my iPod Touch. Steve Jobs has billed the iPad as the arrival of the newest third screen, a device that will join our laptops and smartphones as part of our daily digital arsenal. (I guess Steve doesn’t watch very much TV, as this would be a fourth screen for many of us.) That said, there clearly is uncertainty about precisely how large the market is for the iPad and that is driven by one key question: what will you do with it?