The University of Chicago Law School Faculty Blog

What Can Corporate Law Teach Constitutional Law?

In 2003, I argued in the Yale Law Journal that constitutional law can learn much from corporate law with respect to the protection of minorities.  The Yale Law Journal has now revisited my argument in Minorities, Shareholder and Otherwise, by inviting three leading scholars--Steve Bainbridge, Richard Delgado, and Kevin Johnson to comment on the piece.  I introduce this online symposium and also respond to the comments. 

The Yale Law Journal has now published an online symposium on my paper through its Pocket Part, with an introduction and a response by me. 

Student Blogger - Did Anyone Notice When Colonel Bogey Marched into the Public Domain?

Professor Paul Heald on Copyright Extension and Early 20th-Century Music Compositions

In 1988, works from the early 20th century began entering the public domain, a process that continued until Congress passed legislation extending copyrights in 1998. Were the musical compositions "freed" during this window performed any more (or less) often as a result?

At this Thursday's Faculty "Works in Progress" (WIP) talk, Professor Paul Heald (JD '88 and currently visiting from the University of Georgia) presented his most recent work on "Testing the Over- and Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) and Their Use in Cinema (1968-2007)." Regular readers of the blog will be somewhat familiar with Prof. Heald's work through his recent posts here but, as this paper's title clearly indicates, it deals with intellectual property, his area of greatest expertise.

The Gay Rights Debate and the Death of Law and Literature

In a new essay, I argue that Law and Literature scholarship has run its course. Our 30 years of interdisciplinary work seems to have had no discernable effect on how judges or legislatures behave. Work by empirical scholars in economics and psychology seem to have tremendous traction, but the articles by even our best scholars seem to have little effect. I claim, however, after conducting two seminars (one with state judges and one with federal judges) that fiction itself directly influences the behavior of judges. Especially striking were conversations I had with judges after discussing Ariel Dorfman’s Death and the Maiden with them. I conclude that law and literature scholarship may be largely irrelevant, but fiction itself is alive and kicking in the background of the legal process.

The Complexity of Self-Disgust

I learned my most profound lesson about self-disgust at the poker table one night several years ago (no, I did not unsuccessfully try to draw to an inside straight). Rather, one of my regular playing partners, Dr. Henry Adams, was the head of the psychology clinic at the University of Georgia, and he had just finished an interesting study of attitudes about homosexuality. He had surveyed a large group of men about their attitudes toward homosexuals.  He then showed them gay porn and measured their sexual response in terms of turgidity.  You guessed it--those who evidenced the most disgust about homosexuality were the most aroused by gay porn.  For a brief summary of the study see http://www.blurtit.com/q446401.html

The Evolutionary Biology of Disgust, Part II

It’s unfair to blame everything wrong with Western Civilization on St. Paul, but let’s give it a try . . .

I argued yesterday that evolutionary biology provides an explanation why disgust may generally have a rational basis as a tool for self-selection, but that it does a poor job explaining professions of disgust aimed at homosexuality. Disgust is clearly a powerful emotion to hijack, but how it becomes amenable to hijacking, particularly in the context of homosexuality, requires a short history lesson.

The Old Testament evidences plenty of disgust felt by the people of Israel, and plenty of disgust that their God plainly wanted them to feel. And yet, as Martha Nussbaum points out, there is a striking paucity of disgust at homosexuality revealed in the Hebrew scriptures and in ancient Greek culture. Something happened on the way to the Middle Ages. It may have been a two-step process, and I think it begins with the discovery of a general discomfort with the human body.

The Evolutionary Biology of Disgust, Part I

How can a rational emotion be hijacked for political purposes? The answer holds the key to much human misery . . .

In a forthcoming book, Martha Nussbaum describes the Politics of Disgust that has frequently dominated American discourse over homosexuality. She reminds us that its roots run deep in human history, providing historical depictions of Jews and Untouchables in India as filthy, disease-ridden, and necrotic. She has no problem finding current examples in American politics to support the notion that anti-gay sentiment (but not anti-lesbian sentiment) is driven by the same strategy of rendering homosexual acts, real and imagined, as disgusting and unnatural. For practical reasons, however, she cannot spend too much time examining the rational basis for disgust as an emotion and its stunning amenability to being hijacked.

When Did Marriage Cease to be a Sacrament?

Americans, especially observant Christians, would revolt if state governments passed laws defining what constitutes baptism (sprinkling or full immersion?) or what constitutes valid communion (wine or grape juice?) or who could hear confession or who could be a minister or priest (or a rabbi for that matter). An even greater number would object if the right to receive significant government benefits turned on whether the applicant was validly baptized, confirmed, or regularly received some other traditional religious sacrament. Why, then, are Americans so willing to have the state get into the marriage business?

I’ve been out of the Law & Religion/Law & Literature business for a while now (except to write a festschrift essay entitled, tellingly, “The Death of Law & Literature”) and have been content for years to explore the economics of intellectual property law. A visiting stint at the University of Chicago Law School, however, has a way of reawakening latent passions, and a recent work-in-progress talk by Martha Nussbaum has got me thinking beyond patents once again. Martha, who contributed two essays to my book on Literature and Legal Problem Solving, presented several chapters from her forthcoming book on law and sexuality that deal with the Politics of Disgust. It’s a wonderful project, and over the next several days I’d like to make some arguments beyond her text.

Madhavi Sunder Interviewed on BBC World Service

Last week, Visiting Professor of Law Madhavi Sunder appeared on the BBC World Service program, "The Forum," which each week invites three prominent international figures to debate "big ideas" with each other. On the Sept. 14 show, Madhavi was joined by sociologist Manuel Castells and mathematician and cosmologist John Barrow. The group discussed, among other the things, where power should lie in relation to the ownership of ideas. Professor Sunder also delivered the program's "60 Second Idea to Change the World."

Audio/Video: Anderson and Posner on "Torture, Law, and War"

This week's Faculty Podcast episode features a panel from the "Torture, Law, and War" conference held at the Law School earlier this year; the panel includes 2007-8 Law and Philosophy Fellow (and current Visiting Scholar) Scott Anderson, Kirkland and Ellis Professor of Law Eric Posner, and Rutgers University's Jeff McMahan. They discussed the questions:   Should the law absolutely ban coercive interrogation?  And can and should it really mean it?

Video of the panel is embedded below, and you may also download an .mp3 or a .mov file.

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.