The University of Chicago Law School Faculty Blog

Student Blogger - A Second Look at the Third Party Doctrine

Professor Richard Epstein on the 4th Amendment Third Party Doctrine

Criminals who can't keep secrets have short careers. A big reason for this is the “third-party doctrine” which, as most readers of this blog are probably aware, holds that information shared with others is not generally protected by 4^th Amendment restrictions on search and seizure. Put differently, the law does not recognize any reasonable expectation of privacy in information shared with others. This doctrine has been widely criticized and, most recently and notably in an article by 4^th Amendment scholar Orin Kerr, defended (The Case for the Third-Party Doctrine, 109 Mich. L. Rev. 561, 563 (2009)). Chicago's own Richard Epstein has recently taken interest in this debate, and presented his preliminary thoughts at this week's Works in Progress (WiP) talk. Essentially, Prof. Epstein thinks current constitutional doctrine is generally correct on this point. He agrees with Prof. Kerr and other defenders of the third-party doctrine that it is worth keeping, though his defense is on somewhat different grounds than those of Prof. Kerr. Since Prof. Epstein comes to this issue as an outsider, he also returns to first principles in his work and asks whether we are analyzing these cases consistently and coherently. His conclusion is to suggest a general method for considering 4^th Amendment issues that optimizes the public benefits and private costs of permitting government action in various classes of cases.

Video: Crisis and the Law with Richard Epstein

Over the past week, the National Review Online has been posting portions of a video interview with Richard Epstein as part of "Uncommon Knowledge with Peter Robinson," produced by the Hoover Institution. Links to the week's episodes are below. Update: The Hoover Institution has the full video, along with a transcript.

• MONDAY, MARCH 30, 2009 Crisis & the Law with Richard Epstein: Chapter 1 of 5 - Richard Epstein considers the soundness of contracts and the constitutionality of taxing bonuses at a rate of 90 percent. 
• TUESDAY, MARCH 31, 2009 Crisis & the Law with Richard Epstein: Chapter 2 of 5 - Richard Epstein discusses the financial crisis, determining that “government incentives were perverse, so the actions of the private parties were perverse.”
• WEDNESDAY, APRIL 01, 2009 Crisis & the Law with Richard Epstein: Chapter 3 of 5 - Richard Epstein rates the separate responses of the Bush and Obama administrations to the financial crisis.
• THURSDAY, APRIL 02, 2009 Crisis & the Law with Richard Epstein: Chapter 4 of 5 - Richard Epstein, who has dealt professionally with Barack Obama in the past, describes the talents and shortcomings of the 44th president.
• FRIDAY, APRIL 03, 2009 Crisis & the Law with Richard Epstein: Chapter 5 of 5 - Richard Epstein discusses the constitutionality of several hot items on the congressional agenda, including card check.

Faculty Podcast Double Header: Nussbuam and Wood, Epstein

This week's edition of the Faculty Podcast is a double header of two recent Chicago's Best Ideas talks: Judge Diane Wood and Martha Nussbaum February 2nd discussion "Constitutions and Capabilities," in which the pair discuss practical implications for judges of Prof. Nussbaum's capabilities approach; and Richard Epstein's "The Coming Meltdown in Labor Relations," in which he discusses the Employee Free Choice Act, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act.

You can read Bryan Hart's summary of the Nussbaum/Wood talk here, and download the audio here; Bryan's write-up of the Epstein event is here, and the audio is here.

You can subscribe to the podcast via iTunes or with its RSS feed.

Audio/Video: Fault in Contract Law

In September, Frank and Bernice J. Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat organized a conference intended to reevaluate the role of fault in contract law. Speakers included Chicago faculty Saul Levmore, Eric Posner, Richard Epstein and Judge Richard Posner, along with experts in contract law from around the world. Subscribers to our Faculty Podcast may have already heard Judge Posner's "Let Us Never Blame a Contract Breaker," and audio and video of the entire conference is now available on the conference website. You may also watch Professor Ben-Shahar's introduction to the conference in the video embedded after the jump.

Student Blogger - Chicago’s Best Ideas: Richard Epstein, “The Coming Meltdown in Labor Relations”

Update: You can download audio of this talk here, and video of the talk is embedded after the jump.

As you may already know, Professor Richard Epstein is not President Obama's biggest fan. Obama favors some economic regulations that Epstein does not. In his Chicago's Best Ideas talk on Tuesday, January 27, Professor Epstein spoke about three proposed laws in the area of labor relations: the Employee Free Choice Act, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act. Epstein spent most of his time on the Employee Free Choice Act (EFCA), so my attention will focus on that law. (Epstein has a column about the Lilly Ledbetter Act on Forbes.com.) The EFCA is an amendment to the National Labor Relations Act (NLRA).

Epstein started with the word "free" in the EFCA's name. Back in the nineteenth century before the New Deal, "free" meant free for both sides of the labor relationship: employer and employee. An employer could not force the employee to accept a particular wage, and the employee could not, even if represented by a union, force the employer to hire him at a given wage. The NLRA was passed at the height of the New Deal in 1935. (Epstein is, not surprisingly, no fan of the New Deal.) The Act provides that unions can prompt a unionization vote by getting at least 30 percent of employees to show support by signing cards, called the card check. The vote is a simple majority vote by secret ballot. If the union is approved, the employer must negotiate with the union. Freedom under the NLRA is one-sided because employers must negotiate with a valid union.

Richard Epstein on Happiness, Inequality, and Envy

The Library of Economics and Liberty has posted an episode of their podcast "EconTalk," in which Chicago's James Parker Hall Distinguished Service Professor of Law Richard Epstein speaks with EconTalk host Russ Roberts about the relationship between happiness and wealth, the effects of inequality on happiness, and the economics of envy and altruism.

Richard Epstein: "Robert Nozick Vs. The U.S. Congress"

In his latest weekly column for Forbes.com, Richard Epstein argues that the failures of Fannie Mae and Freddie Mac are a result of Congress' over-reliance on "patterned principles" in making decisions:

Now that yesterday's market nosedive shows the disappointing Congressional bailout has not calmed markets, let the post-mortem begin. Disasters like this latest financial meltdown don't just happen. Mistakes this huge require an impoverished political philosophy to grease the skids. Fannie and Freddie didn't design their horrific lending policies by chance. No, behind this lending fiasco lay the strong collective preference for the "patterned principles" of justice that Robert Nozick attacked so powerfully in his 1974 masterpiece, Anarchy, State, and Utopia.

Believers in patterned principles hold that there is some preordained social order that is more just than others. Accordingly, the function of the state is to use the levers of powers to manipulate behavior to achieve the desired outcomes. These patterned principles stand in opposition to historical principles of justice, which are content to establish the rules of the game and then let the legal moves by individual players determine the social outcomes. For Nozick, the key rules were rules of justice in acquisition (to set up the initial property rights) and justice in  transfer, whereby those rights (and others derived from them) could be exchanged or combined through voluntary transactions.

Read the full article here.

Update: Thanks to "Stu" for pointing out the typo in the original title of this post.

Epstein on "The Christmas Tree Effect"

In Richard Epstein's weekly column at Forbes.com, he discusses the House's refusal to pass legislation bailing out the financial industry earlier this week:

Well, the gong has struck, now that a closely divided House of Representatives has failed to approve round one of the bailout program. The stock market responded with a deep plunge, as the uncertainty continues. It is too early, however, to write a definitive post-mortem because some new proposal may make it through a suspicious and hostile Congress. But it is instructive to understand at least some of the reasons why this initial effort fell apart.

Read the rest of the column here.

Richard Epstein's "Libertarian Manifesto"

This week, Forbes.com launched a new weekly column called "The Libertarian," authored by our own Richard Epstein, James Parker Hall Distinguished Service Professor of Law and Director of the John M. Olin Law and Economics Program. Below is an excerpt from his first column, "The Libertarian Manifesto," and you may read the whole column on Forbes.com.

Online columnists, it is said, should not suffer from an abundance of caution or subtlety. Our job is to shake things up in a short compass. As the choice of title for my new weekly column indicates, I intend to do just that--push hard for a consistent small-government view that is, regrettably, as unfashionable on the Republican side of the aisle as it is on the Democratic. So here are some clues as to my game plan.

In principle, just what does my restless agenda entail? A bit of a contradiction, I fear. Elsewhere, I would describe myself in measured tones as a classical liberal who prizes balance and moderation on all matters governmental. In so doing, I would place myself squarely in the tradition that runs from John Locke, by way of David Hume and Adam Smith, to the Founding Fathers of our Constitution.

Conference: "Emotion in Context: Exploring the Interaction between Emotions and Legal Institutions"

This past May, then-Visiting Professor of Law Susan Bandes organized a fascinating conference that brought together scholars working in philosophy, neuroscience, neuroeconomics, sociology, psychology, and political science to consider the intersection of legal institutions and human emotion. For example, legal institutions consistently make assumptions about how people individually or collectively respond to new information, assess risks, or decide whom to trust or fear, about what motivates people to forgive or to seek vengeance, or about how to promote or discourage empathy. The conference explored the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of legal institutions. Included in the proceedings were Chicago faculty members Scott Anderson, Mary Anne Case, Richard Epstein, and Martha Nussbaum. Audio recordings of many of the talks are now available on the conference website.

The conference was sponsored by the University of Chicago Law School, the Gruter Institute for Law and Behavioral Research, the DePaul University College of Law and the John M. Olin Program in Law and Economics at the University of Chicago Law School.