The University of Chicago Law School Faculty Blog

Student Blogger - Summer WIP: Posner, Landes, and Epstein on Supreme Court Questioning

The Posner/Landes machine rolled into the summer WIP Thursday, as they presented their latest project (also co-authored by Northwestern University's Lee Epstein, who was not present but whom both effusively praised as having compiled every judicial dataset conceivable to humanity): Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument. Court observers such as Linda Greenhouse had long suspected there was an important relationship between the number of questions asked and the ultimate outcome of the case, but nobody had done the empirical work to figure out exactly what it was. Posner, Landes & Epstein looked at the effect the raw quantity of questions (and total words in questions) had on the probability a given side would win their case before the Court s using data tabulated from all arguments for all cases decided in the 1979 to 2007 period . They found a consistent correlation: Whether measured by total questions asked or total words in questions, more is less. The more queries a given side received by the justices, the less likely they were to emerge victorious. For example, petitioners win about 62 percent of the cases before the court but if the petitioner is asked fewer questions than the respondent, that probability increases to 71 percent. On the other hand, if the petitioner is asked more questions than the respondent, the probability that the respondent will win increases from 38 to 50 percent.

Video: Shakespeare and the Law Conference

Last month, the Law School hosted an interdisciplinary conference dedicated to exploring the legal dimensions of Shakespeare's plays. The keynote conversation, featuring Justice Stephen Breyer, Judge Richard Posner, and Professors Martha Nussbaum and Richard Strier, was fascinating, but the real highlight of the weekend was watching the participants -- including Justice Breyer -- perform scenes from the Bard's plays, including Measure for Measure, As You Like It, and Hamlet. Video of the keynote and the scenes, is embedded after the jump.

"Shakespeare and the Law" Conference Brings Justice Breyer to the Stage

On Friday and Saturday, the Law School will play host to a conference on "Shakespeare and the Law." According to the conference event listing, the event (organized by Chicago faculty Martha Nussbaum, Richard Posner, and Richard Strier,

will bring together thinkers from law, literature, and philosophy to investigate the legal dimensions of Shakespeare's plays. Participants will explore the ways in which the plays show awareness of law and legal regimes and comment on a variety of legal topics, ranging from general themes, such as mercy and the rule of law, to highly concrete legal issues of his time. Other papers will investigate the subsequent influence of his plays on the law and explore more general issues concerning the relationship between law and literature.

The highlight of the conference for many, we suspect (including the Tribune's theater blog), will be watching special guest Justice Stephen Breyer perform as the ghost of Hamlet's father in a series of scenes from the Bard's plays that will be staged as part of the conference. Of course, the keynote conversation between Breyer, Nussbaum, Posner, and Strier will likely be just as fascinating.

The conference is free and open to the public. All the world's a stage, but the Weymouth Kirkland Auditorium isn't exactly the Globe, so space may be limited. The scenes and keynote will be made available on the web once they're ready.

If you attend and happen to be tweeting at the event, please use the hashtag #bardlaw.

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 - Is Feminism A Live Issue?

Last week Judge Posner and Professors Nussbaum and Case faced off in a much-anticipated debate entitled "Posner Answers the Feminists" (moderated by Professor Stone). The talk (which you can listen to here) was inspired by articles written by Nussbaum and Case for a Symposium published by the University of Chicago Law Review commemorating Posner’s 25 years on the bench.  Both professors wrote on the topic of Posner’s sexual harassment jurisprudence. See here for Case’s article and here for Nussbaum’s.

But what began as a discussion about specific sexual harassment opinions seemed to transform into a debate over the state of feminism in the United States. Posner questioned whether feminism is still a "live issue" in the United States given his view that women are outperforming men at all educational levels and forging ahead in all professions, including in the military. In Posner’s words, women are now dropping bombs on people "just like the boys." "If that isn’t equality," he joked, "I don’t know what is."

Richard Posner: "In Defense of Looseness"

In the current issue of The New Republic, Senior Lecturer Richard Posner has published an article in which he discusses the repercussions of the Supreme Court's recent decision in District of Columbia v. Heller, the meaning of originalism, and "the mystique of 'objective' interpretation." The first two paragraphs are reprinted below, and the entire article is available here.

At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District's ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court's recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.

The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia's entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions. The irony is that the "originalist" method would have yielded the opposite result.

Podcast: Richard Posner and David Lat on "Judges as Public Figures"

Last week, the University of Chicago's chapter of the Federalist Society hosted a panel discussion on "Judges as Public Figures" with Judge Richard Posner and David Lat, author of two popular legal blogs, "Above the Law" and "Underneath Their Robes." David Lat's relationship with Judge Posner began when he was the anonymous author of "Underneath Their Robes," a blog supposedly written by a young and prestige-obsessed female lawyer. Judge Posner was the first to unmask "Article Three Groupie" (the anonymous author's pseudonym) as being male. The discussion was moderated by Professor Lior Strahilevitz, and a recording is available here.

Judge Posner (or at Least His Avatar) Talks to Second Life

Judge Posner is no stranger to new technology, both personally and professionally. He's taking it to new heights, however, in early December, when he will enter the world of Second Life and his avatar will be interviewed about his book Not a Suicide Pact. For more information and reservations, visit New World Notes.

If this post was complete gibberish to you, you may want to read up on avatars and Second Life.

What Do and What Should Judges Do?

Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication."  (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.)  The podcast of that event is now on-line here.  Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights." 

The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication."  I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241).  Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.

"Not a Suicide Pact": Round Two

Debate Series: Stone Offers A Proposal

I don’t agree that the public “has already surrendered much of its communicative privacy by its profligate use” of modern means of technology that “create essentially indelible records” of our communications, purchases, etc. Certainly, it’s true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It’s a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn’t leap to the conclusion that the public has “surrendered” its privacy. We are merely in transition.

(again, rest of Stone and response from Posner after the jump)