The University of Chicago Law School Faculty Blog

Posner, Barak, and Judicial Activism

Richard Posner's recent review of Aharon Barak's "The Judge in a Democracy" in The New Republic is good reading and focuses attention not only on a favorite of constitutional activists but also of many Israelis who are proud of their creative, intelligent, and extremely aggressive (recently retired) Chief Justice. Barak's activism is often glorified in American Law Schools; he often found "unreasonable" government actions illegal, and occasionally compelled government action where democratically elected officials had chosen not to act or to act differently, and thus appealed to the optimistic and wildly self-confident views of American academics. Posner, unsurprisingly and refreshingly, is much less smitten than many of the constitutional law scholars I have observed.

Primary Reform

As the Presidential races gather steam, there is the familiar topic of the timing and location of the primaries. Early primaries gather "too much" attention, though there was once some charm, or even value, to testing the candidates in American living rooms in New Hampshire and Iowa. Super Tuesday sought to increase the importance of Southern states. And California is always in the news because it is not sure where it wants to be on the election calendar. One idea has been to create a national primary, another is surely to rotate a set of primaries, regional or otherwise. But of course a problem with deemphasizing any one state is that the cost of entry increases for candidates, and the pressure of campaign finance is already great.

Privatizing the Lottery - and other Things

Assume state run lotteries. (We do have them after all, so it is not as if we need always start from first principles. If there were a good reason to prefer the privatization of Illinois's or another state's lottery, then of course we should proceed even if the first-best world had been one with no state-sponsored lottery. Besides, there are some good arguments for a lottery, and indeed for one that does not have a thin profit margin. Even a good libertarian could say that inasmuch as the government is not coercing persons to play the lottery, and there are many private alternatives for gamblers, a state lottery is not the worst of all evils. Some people might actually like playing it, and that must count for something, just as some small investors seem to like paying for stock market advice.)

Title IX and Women Practicing with Men

Last week's NY Times had an article centered around a practice known to most observers of women's sports, that some women's teams practice against or with men, often ex-high school athletes who could not quite make the college men's team. But apparently some college conferences, and eventually the NCAA, may bar women's teams from this practice of using men either because it is regarded as somehow demeaning for women or, more concretely perhaps, because of the likelihood that college women's teams would then need fewer women. Indeed, some schools are not using the full complement of scholarships, and some have teams with rosters smaller than those allowed by the governing rules of the sport. But is there really a Title IX or other problem?

Free agency in baseball and law

The interesting division of the pie between the Boston Red Sox, Daisuke Matsuzaka, and Japan's Seibu Lions (for those who follow baseball) is a good reminder of the oddities of baseball's contractual and legally sanctioned rules. Players can find the teams willing to pay them the most, more or less - at least at episodic points in their careers - and the deals are enforced by the enterprise (of professional baseball and the players' union) though, again, within limits. And so what emerges are many multi-year contracts, and one question is why we do not find similar contracts for law professors, say, or star associates at law firms. Why not "we really like you and instead of paying you $200,000 for the next year at our firm (with perhaps a bonus based on billed hours), let's lock each other in for 5 years and $2 million. One possibility is that liquidated damages would be needed, in order to serve the function that major league baseball, as a unified organization, plays in the other setting (preventing players from jumping in mid-contract to another team), and such contracts are stymied by our traditional disinclination to enforce them if they look (even ex post sometimes) like penalties. There is of course some attempt, especially at universities, to lock in "players" with forgivable loans, but rarely do these discourage negotiations with other universities.

Subsidizing Good Works (by Students)

The rebuilding of New Orleans is one of several activities that have attracted the energy and generosity of students across the country, and here at Chicago. Let's put aside the question (addressed in earlier posts) of whether that city ought to be rebuilt as is presently contemplated, and ask whether law schools (say ours) ought to subsidize a group of students who organize to travel there on spring break and do work under the auspices of Habitat for Humanity. I think we should be very proud of these students, and it is hard to imagine a teacher preferring any other spring break activity for students. But I find myself resisting the practice of some other schools that quickly give money to the cause.

Give Thanks for those (Soon to Disappear?) Benefits

A striking thing about the jobs most commonly chosen by newly minted graduates of elite law schools, is that they come with valuable fringe benefits. Base salaries are widely imitated and therefore fairly uniform, but firms compete a bit more when it comes to benefits. Health plans, inclusion of same-sex partners, fitness centers, part-time work options, and other things are on the minds of employers and employees, but one particularly expensive and nonuniform benefit is parental leave. At Thanksgiving dinner this year I sat next to a new associate at a Boston firm who seemed thrilled that her firm offered maternity and paternity leave, for biological or adopted children, of three paid (plus benefits) months. The law requires only some leave without pay, so we can think of this as a benefit worth more than $50,000 per child. I think my friend's reaction was partly social/political, as she prefers a world in which parenting is encouraged, or at least not penalized, in this manner, and I think it is also economically rational. She does not think of this costly benefit as coming out of her paycheck, although I think it unlikely that she cashes in on this benefit with this employer, because she correctly sees her own compensation as moving in step with other firms' base salaries. I think her reaction would be the same even if the associate in the office next door had five children in the next five years, and even if that associate's partner also received paid leave from his or her employer. Of course, the birthrate in this group is likely to be low. The benefits come out of the partners' returns, though they may of course encourage new associates to join this firm.

Arizona's (Defeated) Voter Reward Act

And so Arizona's Initiative, Proposition 200, to enter primary and election day voters in a lottery for a $1 million prize, funded by two years' of unclaimed lottery prizes, was defeated. It is politically correct to wish for higher voter turnout, but then incorrect to contemplate mandatory voting , as is found in some other democracies. But it turns out that while we do not like sticks, which is to say penalties for not voting (Australia has a $20 fine, sufficiently enforced that it was paid by some 50,000 persons in the last election there), we do not like carrots either. Arizona's plan would have offered voters the equivalent of a lottery ticket each time they voted in a general or primary election. Of course the expected value of this lottery ticket would have been fairly low, and had Arizona simply paid 50 cents or a dollar to each voter, who could then have turned around and purchased a lottery ticket with the money if a shot at a million prize was preferred, we do not imagine voter turnout skyrocketing. Instead, the mainstream preference, at least for mainstream politicans and academics, is for somewhat easier voter registration rules and procedures. Even if these are more expensive, they are politically more correct or acceptable.

E-Readers and the Future

I had occasion, finally, to get my hands on one of the new Sony E-Readers, and it set me thinking about the path dependency of innovation in the face of legal obstacles. If you have not seen one of these electronic-pocket-book-platform things, you will have trouble imagining how such a small change could convince many users that the world of reading is about to change. The Sony device sells for about $400 and holds up to 80 books. The one I tested had Freakonomics loaded on it, and so I read and marveled. Only the charts in Freakonomics looked a tad worse than they do on familiar pages. But one look at this device sets the mind and heart to work on the possibilities.

Boardroom Confidentiality

In the wake of the Hewlett-Packard "scandal," corporate boards and their advisors are scurrying about in order to try and avoid future, similar difficulties.  In principle, the advice is simple: engage in full and frank discussions, but leave outside contact to a spokesperson or the CEO. In the event of a leak by a board member, discuss (and do so in advance), and if necessary apply some pressure by reminding board members of the possibility that their "disclosures" will amount to civil or criminal violations of the securities laws, or pointing out that renomination to the board is unlikely for someone who can not kep confidences. The advice usually extends to referring the matter to the general counsel or outside counsel, with little advance work on what exactly will happen if the matter is not respolved in this manner.