The University of Chicago Law School Faculty Blog

Balganesh's Comments [Mobblog: The New Servitudes]

Molly's very insightful Article does an excellent job of identifying the various issues at stake in servitude enforcement and analyzing how they are likely to carry over to the world of intangibles. I’m always fascinated by the interplay between property metaphors and intellectual property, and the Article serves to highlight the fact that analogies and comparisons between the two areas can indeed be beneficial – as a matter of both policy and doctrine. Reading her Article, I had three somewhat connected thoughts.

The first relates to the “problem of the future” and its connection to a potential anti-commons situation. Molly’s principal concern in the context of both chattels and intangibles seems, in this regard, to be with resource underuse as a consequence of servitude enforcement. When the transaction costs of negotiating releases from restrictive conditions (in order to use the resource) exceed the benefits of the use, a potential user may be dissuaded from using the resource altogether. While the possibility of an anticommons is certainly a matter of concern, I wonder why we don’t have reason to believe that the common law (i.e., courts) is likely to develop pragmatic solutions to it, just as it has in other contexts, when resource peculiarities so demand.

Take the case of trespass to chattels. One of the reasons why an anticommons is more likely in the context of chattels and intangibles (as opposed to land) is because these resources have somewhat fuzzy/porous boundaries. In other words, the granularity of the resource makes monitoring, enforcing and indeed avoiding its boundaries cumbersome and difficult. If the law were to allow a trespassory action for any and every interference with a chattel, innumerable everyday situations would give rise to potential liability. Touching someone’s parked car while crossing a street, or brushing against another’s handbag in a crowded subway train – whether intended or not – would give rise to potential tort liability in the exact same way as it would if the resource were land. If individuals had to guard against the possibility of such liability in their everyday interactions, one might see such potential liability inducing inefficient behavioral modification among individuals, akin to an anticommons (e.g., you might think twice before entering a crowded train/bus, or crossing a street with cars parked on both sides).

To mitigate the potential for this inefficiency, the law actively disallows trespassory claims for interferences with a chattel (as opposed to dispossessions), unless the chattel itself is physically harmed (see Restatement (Second) of Torts § 218). Thus, merely touching a parked car isn’t an actionable tort, while scratching it with a nail certainly is. This move marks the law’s conscious deviation from the law of trespass to land, and can be explained by its attempt to minimize inefficient behavior likely to be associated with potential liability.

Why then do we have reason to believe that common law courts aren’t likely to be driven by a similar set of pragmatic considerations in their enforcement of chattel/intangible servitudes? Indeed, in trespassory claims relating to intangibles, courts have come around to seeing the same set of concerns that arise in relation to chattels (i.e., fuzzy boundaries and high enforcement/monitoring costs) as carrying over to intangibles (see Intel v. Hamidi, 71 P.3d 296 (Cal. 2003)). Taking Molly’s example then of the printer and recycable/non-recycable cartridges; why wouldn’t a court just refuse to enforce the condition for similar pragmatic reasons, given its treatment of chattels elsewhere?

This connects to my second point: the issue of enforcement, something Stewart and Sonia have touched upon in their posts already. Does it make a difference at all, whether courts enforce chattel/intangible servitudes using liability instead of property rules? In other words, if individuals (faced with a potential anticommons holdout) were to go ahead and use the resource on the assumption that courts will eventually do no more than enforce the servitude by awarding a plaintiff (or plaintiffs) damages, how is this likely to impact user incentives? Thus, if Wikipedia were to eventually move to a Creative Commons license, and users were to then recycle content (created under the original FDL), would the non-availability of injunctive relief have any impact on parties, thereby minimizing any potential anticommons-underuse?

The issue of enforcement in my mind though, goes to more than just property vs. liability rules. In some situations, disallowing an action altogether (or allowing it only when additional conditions are satisfied) isn’t a second-order choice between entitlement protective regimes, but rather a first-order decision about the existence of the right to begin with. Injecting additional uncertainty into the enforcement process (beyond just the choice of remedy), by making the very existence of the right (to the servitude) conditional, might then go a long way in deterring both inefficient enforcement and underuse. Again, the law of trespass to chattels is instructive, since the choice that the law makes isn’t just between property and liability rules, but rather between entitlement-recognition (a first order choice) and non-recognition.

My last point also connects to the “problem of the future” and relates to Molly’s concern that individuals are likely to encounter “unforeseeable” changes owing to technological developments or indeed pure serendipity, making their original licensing commitments palpably inefficient in hindsight. Again, why not look to how courts have allocated the risks associated with low-probability events in interpreting/enforcing licenses elsewhere. In allocating licensing rights associated with new technological uses, courts have for over five decades now employed a test of “foreseeability” to determine whether a new use was part of the licensee’s grant or retained by the licensor (see Bartsch v. MGM, 391 F.2d 150 (2d Cir. 1968) and more recently, Boosey & Hawkes Music Publishers, Inc. v. Walt Disney Co., 145 F.3d 481 (2d Cir. 1998)). In situations where a new use was objectively unforeseeable, the license is deemed to have excluded it, given contract law’s reliance on actual/presumed consent. If servitudes are in the end contracts, shouldn’t we expect to see defendants (and perhaps courts too) applying a similar test of foreseeability to mitigate unanticipated changes that seem to bind a defendant to more than he/she could have possibly consented to? Again a somewhat well-established common law device might serve to minimize inefficiencies associated with unforeseeable developments, that Molly identifies as part of the problem of the future.

In the end, all of my points seem to place significant reliance on the ability of courts to (i) take notice of these concerns, and (ii) develop pragmatic solutions to them incrementally, looking to connected areas for guidance. To the extent that one remains skeptical of courts’ ability to do just this, these solutions will certainly appear utopian.

Conspiracy Theories

All over the world, people accept conspiracy theories. ("The truth is out there.") Many people believe that high-level officials in the United States government were responsible for the assassinations of John F. Kennedy and Martin Luther King. Many people believe that AIDS was deliberately engineered by doctors. Millions of people believe that the attacks of 9/11 were undertaken by the United States or by Israel. Millions of people in the developing world believe that the United States is now plotting to conduct some nefarious campaign against them.

Conspiracy theories create an array of puzzles. What, exactly, are they? What counts as a conspiracy theory? Why do people accept conspiracy theories? Should government do anything about them? Adrian Vermeule and I try to make progress on these questions in a paper that is available here. For the moment, let us notice that a distinctive feature of conspiracy theories is their self-sealing quality: Those who hold such a theory are likely to be both motivated and able to fold contrary evidence into the theory itself, and even to conclude that the contrary evidence is further proof of the conspiracy. Often conspiracy theorists spend much of their time in isolated networks of like-minded others, which makes it all the more difficult to undermine their beliefs.

Some conspiracy theories are innocuous, fun, and funny. (On the innocuous and fun side, consider the parental conspiracies that give rise to widespread beliefs in Santa Claus and the Easter Bunny.) But some such theories are extremely dangerous, because they produce intense feelings of hatred and humiliation, and a real potential for violence. A serious task is to decide when it is worthwhile for government to try to debunk a conspiracy theory -- and to try to find ways to overcome the self-sealing quality of the theory through some form of infiltration.

Today's Availability Cascade

All of the experts thought that Barack Obama would win the New Hampshire primary. Perhaps more significantly, the prices at Intrade, the political prediction market, suggested that Obama was overwhelmingly likely to win. Many of us have been quite excited about the potential of prediction markets, in which people "bet" on political (and many other) outcomes. Such markets have a terrific track record in politics and elsewhere. And yet Clinton was a huge underdog in New Hampshire. Should we conclude that the prediction markets are unreliable after all? That nobody knows anything? That polls themselves mean nothing?

Sunstein on Extremism and Social Learning

Cass Sunstein (with Harvard's Edward L. Glaeser) recently posted a new paper to SSRN, entitled "Extremism and Social Learning." The abstract is below, and the whole paper is available here.

Extremism and Social Learning 

EDWARD L. GLAESER
Harvard University - John F. Kennedy School of Government - Department of Economics; Brookings Institution; National Bureau of Economic Research (NBER)

CASS R. SUNSTEIN
University of Chicago - Law School December 2007

U of Chicago Law & Economics, Olin Working Paper No. 375
U of Chicago, Public Law Working Paper No. 193

Abstract:    
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon - group polarization - has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others where there are 1) common sources of information; 2) highly unrepresentative group membership; 3) statements that are made to obtain approval; and 4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

Bandes on Framing Wrongful Convictions

Visiting Professor of Law Susan Bandes has posted a paper on SSRN entitled "After Innocence: Framing Wrongful Convictions." The abstract is below and you can download the whole paper here.

After Innocence: Framing Wrongful Convictions

SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
Utah Law Review, 2008

Abstract:    
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.

I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.

The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.

The Second Amendment Cascade (?)

Here is a remarkable development. Just twenty-five years ago, there was a strong consensus, among judges and academics, that the Second Amendment did not create an individual right. No federal court had invalidated a restriction on guns on Second Amendment grounds (ever). As recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.

In a short period, the consensus has shattered. There is a strong possibility that the Supreme Court will accept a view that seemed implausible in the relatively recent past. Here is the question: What has happened?

Consider four possibilities:

1) Truth has finally prevailed. Perhaps new research has shown that the individual rights view is correct. It is true that a large amount of work has been produced in support of that view. Much of it has been funded by private groups with a stake in the issue -- but hardly all of it.

2) Interest groups,  above all the NRA, have spurred the change. Perhaps the new view is a reflection of an aggressive social movement, not unlike the movement to ban segregation and to create a right to same-sex marriage. There can be no doubt that a great deal of time, money, and effort have been expended in an effort, by those with a serious stake, to press the individual rights view on politicians and the federal courts.

3) New judicial appointees have shown new receptivity to arguments that are a) originalist and b) associated with the political right. A key contributor to the shift is undoubtedly the presence, on the federal bench, of a number of Reagan and Bush appointees, who are sympathetic to gun rights in particular, and who also have a jurisprudential interest in originalist arguments.

4) Both politics and law have experienced an informational cascade, produced by savvy "Second Amendment entrepreneurs." Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer -- at least if they trust those others. On this view, the apparently supportive views of "liberal academics" -- including Sanford Levinson, Akhil Amar, Lawrence Tribe -- have been crucial in legitimating the individual rights position.

I tend to think that all of these explanations provide part of the picture, with the (important) qualification that 1)  is probably wrong. (This is not the place to defend the qualification. The original understanding of the text is very complex, as shown by historians Saul Cornell and Jack Rakove among others; and longstanding social practices and many court of appeals have refused to accept the individual rights interpretation. In my view, the individual rights view, at least in its present form, is mostly a product of contemporary concerns and preoccupations.)  Even if is right, it is not an adequate explanation of what has happened.

If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century.

Shyam Balganesh: "Demystifying the Right to Exclude"

The ‘right to exclude’ has for long been taken to be a defining feature of property as a social and political institution.  Yet, very little is known about the exact contours of this right — How does it operate? Is it absolute? Are courts obligated to give effect to it whenever a property owner asks them to? In its short (10-page) unanimous decision last term, in eBay, Inc. v. MercExchange, LLP, the Supreme Court tried to shed light on what this right means, specifically in the context of patents. Yet what it hinted at is likely to have enormous significance for the way in which the law understands the ‘right to exclude’, as it relates to all of property law.

In a paper recently posted to SSRN, Shyam Balganesh, Bigelow Fellow & Lecturer in Law, argues that a close reading of the Supreme Court’s opinion in eBay tells us what the right to exclude has really meant all along — as little more than a duty of non-interference that non-owners are placed under. Understanding property in this way allows for a more holistic analysis of the institution, one that accurately represents its functioning as an everyday matter.

The abstract is below and the full paper is here.

Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions

SHYAMKRISHNA BALGANESH
University of Chicago Law School
Harvard Journal of Law and Public Policy, Vol. 31, 2008
U of Chicago, Public Law Working Paper No. 182

Abstract:    
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.

Josh Bowers: "Contraindicated Drug Courts"

In a paper recently uploaded to SSRN, Bigelow Teaching Fellow Josh Bowers argues that drug treatment courts fail to help those that they are intended to help. The abstract is below, and the full paper is here. You can also read for yourself the study that served as his primary data source.

Contraindicated Drug Courts

JOSH BOWERS
University of Chicago - Law School
UCLA Law Review, Vol. 55, 2008
U of Chicago, Public Law Working Paper No. 180

Abstract:    
Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs (and to its one-dimensional focus on incarceration). Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a plea of guilty and is enrolled in a long-term outpatient treatment program that is closely supervised by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. My premise is that drug courts provide particularly poor results for the very defendants that they are intended to help most. Specifically, the most likely participants to graduate are volitional drug users, who strategically game exit from undesired conventional punishment and game entry into treatment that they, in fact, do not need. By contrast, the most likely treatment failures are genuine addicts and members of historically disadvantaged groups, who thereafter receive harsh termination sentences that often outstrip conventional plea prices. In short, drug courts are contraindicated for target populations and may thereby lead to longer sentences for the very defendants who traditionally have filled prisons under the conventional war on drugs.

Susan Bandes Enters the Latke-Hamantash Fray

The 61st Annual Latke-Hamantash Debate, a University of Chicago tradition, will take place on Tuesday, November 20 at 7:30 pm in Mandel Hall. This year's debate features Visiting Professor of Law Susan Bandes, along with Professors Austan Goolsbee (GSB), Matthew Stopler (Oriental Institute), and Alberto Simpser (political science). Each distinguished scholar will present an analysis from the perspective of his or her discipline addressing the question of which Jewish holiday food is superior, the latke or the hamantash. No word yet as to which treat Professor Bandes has decided to defend.

Contact the Newberger Hillel Center for more information.

Robin Effron Discusses Lessons from the September 11th Litigation

Although the tragedy of September 11th is already more than six years in the past, litigation of claims arising out of that event continues, with some of the cases still at the beginning phases. In a recent paper posted to SSRN, Bigelow Teaching Fellow and Lecturer in Law Robin Effron focuses on the continuing problems facing the judge and litigants in these cases, and argues that many of those difficulties are a result of the Air Transportation Safety and Systems Stabilization Act which gave the Southern District of New York exclusive jurisdiction over all cases arising out of the events of September 11th, and created a cap on damages limiting recovery to the total amount of available liability insurance. 

The abstract is below, and the full paper is here.

Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation

ROBIN EFFRON
University of Chicago - Law School
Southern California Law Review, Vol. 81, No. 2, 2008

Abstract:    
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy's victims and victims' families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead.

The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions “resulting from or relating to the terrorist-related aircraft crashes.” Finally, it implemented a liability cap by limiting recovery in all actions to the defendants' available liability insurance. These jurisdictional aspects of the “traditional” litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.

The jurisdictional puzzles seen in the September 11th litigation call for two new labels. “Event jurisdiction” refers to Congress's choice to give the federal courts subject matter jurisdiction over an “event” of perceived national importance, rather than locating subject matter jurisdiction over a certain class of cases or type of claim. The second phenomenon deserves the label “protective coordination” because, like protective jurisdiction, it evinces a congressional desire to protect certain real or perceived federal interests by manipulating the shape and direction of certain classes of lawsuits. The Article concludes by suggesting how Congress might better evaluate post-disaster litigation legislation in the future.