The University of Chicago Law School Faculty Blog

Student Blogger - Push-pin, anyone?

You haven't lived until you've won a few of your friends' hard-earned quarters in a heated round of push-pin.  Push-pin–"hattie" as I prefer to call it–is a high-stakes game of skill and cunning where two pins are placed on the brim of a hat, the players gently tapping the brim in turn hoping the pins come to rest across one another.  (Who doesn't travel with a brimmed hat and spare tailor's pins?  I know I do.)  This game of chance (or innocent children's pastime) was immortalized by the founder of Utilitarianism, Jeremy Bentham, when he claimed that, in calculating the sum total of pleasures, "the game of push-pin is of equal value with the arts and sciences of music and poetry."  In this year's first meeting of the Law and Philosophy Workshop, Professor Elizabeth Anderson examined J.S. Mill's innovative response to Bentham's claim.

In her paper, Anderson focuses our attention on the lively debate among Mill's contemporaries over democracy and elitism, as reflected in the proper goals of education.  The conservative curriculum of Mill's day lauded theology, the classics, and the other humanities as the highest accomplishments of civilized society.  In the mean time, the arts and humanities were viewed by Utilitarians as luxuries at best, and vestiges of a pernicious elitism at worst. 

Fundamental to the Utilitarians was the concept of equality of taste, which dismissed claims to give some pleasures more weight than others.  For Bentham, if a game of push-pin supplied more pleasure, it was more valuable than music or poetry.  Attempts to refine or uplift the sensibilities of the masses were misguided.  Understandably, the Utilitarian was an advocate of the sciences and mathematics for their empirical success and useful application to technological progress, a progress that was rapidly expanding utility-enhancing advances in medicine, manufacturing, and economics. 

Student Blogger - Standards Adrift?

Appellate cases often live or die by the standard of review that the appellate court applies to the decision of the lower court. In some cases, a clear error will be necessary to reverse a decision, whereas in other instances, the appellate court might give no deference to the holding of the court below, deciding on its own accord the legal issues presented. And while we might argue 'til the cows come home about what exactly vaguely phrased standards such as arbitrary and capricious actually mean, most people would probably agree that whatever the meaning of the standard, that it would not—and should not—change depending on whether an appeal was decided in 1999 or 2009. But what if that was the case? That perturbing possibility is exactly what Professor Bert Huang considers in his new paper, Deference Drift? Evidence from a Surge in Federal Appeals, which he presented at last week's meeting of the Public Law & Legal Theory Workshop.

Prominent judge have suspected a deference drift of sorts in federal appellate courts—a situation, in essence, in which courts have dealt with rapidly growing caseloads by increasingly deferring to the rulings of lower courts, thereby resulting in fewer reversals. That notion, of course, should be troubling to anyone concerned with coherence, consistency, and stability in jurisprudence.

Student Blogger - Fall WIP: Aziz Huq is Against National Security Exceptionalism

When it comes to cases involving grave matters of national security, commentators split on the courts' role. Some think the judiciary should be heroes, bravely swooping in to protect civil liberties when passions run highest. Others think that courts should show great deference to the executive, who is in the best position to understand the scope and magnitude of the security threat. Still others advise the court to take a minimalist approach to whatever it decides, viewing the occasion of a security breach as the wrong time to experiment with sweeping opinions. But what they all seem to agree is the notion that there is something different about the judicial role in cases involving national security. And this presumption, that national security somehow presents an exceptional case in the realm of judicial behavior, is what Professor Aziz Huq seeks to undermine in Chicago's latest WIP talk.

Professor Huq first identifies five prominent theories of the judicial role in national security cases. The first is that courts exhibit "social learning", identifying and discarding erroneous security policies over time. The second is the heroic model, whereby judges are the final guardians of civil liberties, standing boldly against democratic pressures. The third, generally opposite of the second, is the executive accommodation model, by which courts are generally deferential to executive policy judgments on the theory that security matters are a quintessentially executive matter. The fourth is a view of judicial minimalism, positing that courts should be very wary of making drastic changes in national security law due to the particularly sensitive nature of subject. And finally, there is the model of "bilateral institutional endorsement", which seeks to involve, to the greatest extent possible, the other two branches of government when deciding to make any changes to the status quo. While some or all of these theories have counterparts related to judicial behavior more generally, each can be uniquely applied to the national security context. For example, while one might generally believe courts should be minimalist in their adjudicatory decisions, it is also quite possible to not subscribe to that belief as a general matter, while still thinking it compelling logic within the particular arena of national security. The "exceptional" quality of these theories is their putatively superior explanatory power in national security compared to "normal" judicial decisions.

The first problem with the national security exceptionalism hypothesis is that none of these five theories seem to do that great a job of explaining how courts actually behave in national security cases. For example, there is little evidence that the court "learned its lesson" (as the social learning model would suggest) from the nearly universally repudiated Korematsu decision, when in Iqbal it was cavalier, to say the least, about the possibility of bias and prejudice precipitating ill treatment towards a segment of the population identified with America's attackers. Likewise, the distribution of outcomes in national security cases is not so polarized as to warrant giving descriptive force to either the highly deferential executive accommodation theory, or the extremely interventionist heroic model. And while it might be said that these theories, though not explanatory on their own, might be so in the aggregate, this seems to beg the question -- particularly given that at least some of the theories (such as the heroic versus accommodation models) are polar opposites of each other.

Of course, on its own this does not show that national security is not an exceptional case; all it demonstrates is that the predominant theories of national security exceptionalism are inadequate. However, Professor Huq continues to observe that to the extent we do observe patterns in the resolution of national security cases, they seem to track broader, transsubstantive trends in the field of public law. For example, the hesitancy of courts to intervene against security decisions at the front end is perfectly consistent with the broader thrust of American law -- in general, judicial intervention aimed at preventing constitutional violations prior to the fact is the exception and not the rule, particularly in matters (such as the 4th Amendment context) where public or official safety is an important value. The broad-based decision strategies and doctrines the courts have developed for law "in general" are perfectly adequate to account for judicial behavior in the national security context as well--there is nothing "exceptional" about it.

Student Blogger - Fall WIP: Julie Suk Asks Whether We Need More Gender Stereotyping in the Work/Family Balance Debate

America is rather notorious in the Western world for having a particularly thin policy for family leave. Sick persons and pregnant women find most of their rights in the Family and Medical Leave Act (FMLA), conceptualized as a broader American commitment to anti-discrimination principles. In Europe, by contrast, maternity is given special legal protection, a feature that U.S. law would reject as a gender stereotype. Presenting at today's WIP talk, Julie Suk, visting the law school from Yeshiva University's Cardozo school of law laid out the conflict in stark terms.

Each account has its problems. The American model offers a relatively thin basis for providing family leave, which partially accounts for why (legally required) maternity and paternity leave benefits tend to be limited -- being unpaid, for example. Part of this is because of the nature of the FMLA, which, as the name suggests, aggregates together both "Family" (mostly child-bearing) and "Medical" (disability and sickness) leave programs. This combination resulted from the particular process by which pregnancy began to first see protection under the law. Litigation and legislation in the 1970s sought to, and eventually succeeded, in comparing pregnancy to a disability and argued that refusing to protect persons on the basis of this particular "disability" (only experienced by women) was a form of sex discrimination. Hence, the issues surrounding accommodating pregnancy were folded into a broader program aimed at accommodating sickness and disability.

However, in practice sickness and pregnancy present very different issues for employer/employee relations. The former requires managing several thorny enforcement problems -- it isn't always facially apparent whether a person is actually sick, sickness is unpredictable and thus provides difficult management problems for HR personnel, and there is no set amount of time one can expect an employee to lose to sickness. Because sickness and childbearing are aggregated together, many employers faced with ever-more expensive sick leave demands are hostile to expansions of family leave. This is true even though child-bearing leave is typically far less intrusive, with companies (hopefully) getting plenty of advance warning, visual signals that guard against abuse (it is pretty difficult to fake pregnancy), and reasonably standardized requirements for time off (a few weeks before delivery, a few weeks afterward). These two forms of leave can be easily disaggregated -- in Sweden, for example, there is growing skepticism towards overly-generous medical leave policies, while enthusiasm for expansive family leave continues unabated.

However, part of the reason why many of the European programs are so effective is that they seem to buy in quite whole-heartedly to a host of gender stereotypes. In France, for example, it is generally prohibited for women to return to work too soon after giving birth. The stereotype that women need protection from the strains of childbirth and that they can't be trusted to work after delivery rests, at best, uneasily with more modern notions of both the female body (specifically, the women are not fragile crystals who will shatter at any strain) and female agency (that they are in the best position to decide if they are capable of working or not). Rather than seeking to overcome gendered disparities in maternal versus paternal care, housework, and discriminatory attitudes, many European models, at best, seem to assume their existence and attempt just to manage their effects. And sometimes they go further -- the extensive leave granted to new mothers in France is difficult to justify based only on physical recuperation. Rather, the purpose seems to be the French state's perspective that mother and child have a special connection, and that women need time to bond with their child. This does not mesh well with the dominant American view that the law should give no notice to stereotypical attitudes, and certainly should utilize them as the motivating basis for policy. Indeed, legal actors seem concerned that taking notice of these stereotypes will rebound against those women who do not wish to have children or are not primary caregivers (but are assumed to be).

And this is what creates the paradox. We don't want to perpetually recreate and reproduce the disparate treatment which place women with disproportionate obligations towards children, childcare, housework, and other such activities. On the other hand, we don't want to ignore the reality that -- in the present world -- it is the case that this does describe the position of many women today. Family leave policies need to simultaneously accommodate a non-ideal state of affairs at the same time as they attempt to challenge it. It's a difficult tight rope to walk.

Student Blogger - Fall WIP: Christopher Serkin Takes on Existing Uses

The leaves change, but WIP talks carry on through the fall and into the winter (which, this being Chicago, should begin in a week or so). This Thursday, Visiting Associate Professor Christopher Serkin presented on the topic of existing uses in land regulation. The prevailing view is that, by and large, the government is constitutionally forbidden from regulating away (via, for example, zoning) an existing use of your land. So if you've already built a grocery store, and the planning board rezones your neighborhood as residential, the board can't force you to tear down the store. And this makes intuitive sense -- imagine the havoc it would wreak if the government could rip down every house on a block because they were too close to the street to satisfy a (newly passed) setback regulation?

But, Professor Serkin argues, our intuitions are at least partially misguided. To be sure, there are many excellent reasons for why existing uses are worth protecting. What is not so clear -- indeed, what Professor Serkin argues is simply wrong -- is to enforce a categorical constitutional rule protecting them. This, he claims, is neither justified by the existing constitutional doctrine, nor does it make sense as a normative policy.

The doctrinal arguments for the absolute protection of existing uses tend to be less arguments than they are assertions or, more bluntly, articles of faith. Courts simply take it for granted that a local body cannot regulate away an existing use, without explicitly locating it in any constitutional doctrine. Though some support can and is mustered from, for example, the Takings Clause, it is usually insufficient -- showing, certainly, that existing uses are often worth protecting, but not in any way demonstrating the need for a general rule. For example, the hallmark Penn Central case protects against diminution of value -- certainly something which would implicate many existing uses. But not all of them: one could easily imagine the case of low-income housing in a rapidly gentrifying neighborhood, where the redevelopment of the land would in fact increase the underlying property value.

Student Blogger - Summer WIP: Richard McAdams on Why Othello is a Legal Thriller

The plays of William Shakespeare hardly ignore the topic of law. Yet most of the time when the legal lens gets pointed at the works of the Bard, they focus on the more explicitly judicial pieces, such as The Merchant of Venice or Measure for Measure. Working off of Chicago's 2009 Law and Shakespeare conference, however, Professor Richard McAdams presented a new paper at the tail end of the season's WIP talks on why Othello has far more to say about law and legal concepts that perhaps previously recognized. Showing both the benefits and shortcomings of resorting to the legal process, Shakespeare presents a nuanced and ambivalent perspective on law's overall utility.

The play is book-ended by two opportunities to use the legal process to avert an injustice. At the start of the play, Othello stands accused by Brabantio of taking his daughter Desdemona by force or fraud. Iago is the mastermind behind this misconception, stoking mistrust between the two and seeking to provoke street violence. However, at the critical moment Brabantio decides to divert the matter to a legal proceeding, which allows (through Othello and Desdemona's testimony) for Othello's exoneration.

By contrast, the play concludes with Othello serving as judge, jury, and executioner after accusing Desdemona of adultery with Cassio (again, a mistake fostered by Iago). In contrast the first Act, where Othello is vindicated by virtue of procedural rights, he flatly refuses to grant Desdemona any, including a rejection of her plea to call Cassio as a witness. The tragedy of Desdemona's death, after all, could have been averted the same way that Othello was freed -- through exculpatory witness testimony. Yet Othello, by choosing the path of private vengeance rather than public law, sowed his own bitter harvest, wrongfully killing his wife and love.

So at this level, Othello takes a significantly more positive view of law than many other Shakespearean works. Yet, in another sense, law is actually a dramatic failure in Othello--it provides virtually no recourse against the generally recognized true villain: Iago. Not only that, but this failing is one that drives several significant plot choices Shakespeare makes that cast light on otherwise seemingly odd authorial decisions.

Student Blogger - Summer WIP: Emily Buss on the Role of Child Development Research in the Law

An abused child is picked up by social service workers after years of living on the street. The officers who see her remark how, despite her age, she behaves like an "adult". Another child commits a brutal murder. Politicians take to the mics and declare their support for "adult time for adult crime". Meanwhile, a twenty year old college student seems particularly bubbly and effervescent in class, leading her friends to remark on how childish she seems. These instincts reveal something fundamental but often forgotten about how we view children and childhood. Childhood isn't a static category applicable to anyone within the ages of 0 to 18. Rather, it is a contingent characterization dependent on social expectations and how individuals match them.

Yet often times, law, and indeed, much child development research, seems to take as a presumption that childhood can be isolated as a stable subject. When determining what rights and obligations to give and demand of minors, the law often makes assertions such as "Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment" (Parham v. J.R. 442 U.S. 584, 603 (1979)). Not only is this probably a misstatement of even the dominant view of adolescent decision making capabilities, but it also takes as an unstated assumption that the decision making abilities of children are something static, unconnected with the legal and social environment that they are raised in.

It is this mistake that Emily Buss looks to tease out the implications of in her current work, "What the Law Should (and Should Not) Learn from Child Development Research". At times, the law simply seems to ignore child development research. At other times, it uses it, but in a very prescriptive way that does not contemplate that child capabilities might shift depending on legal and social contexts. But occasionally, the law does seem to take notice of how its own messages and prescriptions do not just manage but also create the developmental capacities of the children it watches over.

Student Blogger - Summer WIP: Rosalind Dixon Defends Dynamic Constitutional Rules

Woody Allen once explained why he didn't eat oysters by saying "I like my food dead. Not sick. Not wounded. Dead." Many people like their constitutional clauses the same way. But even those constitutional theorists who endorse a dynamic interpretation of the constitution seem to restrict it to constitutional standards, while excepting constitutional rules. So something like the Eighth Amendment's cruel and unusual punishment provision is a viable candidate to be updated, while the Seventh Amendment's rule that jury trials must be preserved where the amount in controversy is greater than $20 is not.

Professor Dixon challenges this view in her ongoing project, "Dynamic Constitutional Rules." Dixon beings by addressing three primary arguments forwarded for why constitutional rules should be exempt from updating: first, that compared to standards their importance is measured more by their providing clarity than their substantive content; second, that the costs of unsettling them are systematically higher than doing so to constitutional standards; and third, that there has been less "drift" in the scope of constitutional rules compared to standards. None of these arguments, she claims, holds water as a general matter even applied to the clearest constitutional rules. Many constitutional rules have extremely important welfare and/or distributional consequences -- they are not just coordination games. The rule regarding Senate representation, for example, has very real and noticeable effects on the distribution of federal government resources to large versus small states. Constitutional rules also can and have seen a disjuncture develop between their original purpose and their facial textual demands. Any intent for the Seventh Amendment's $20 clause to conserve judicial resources clearly is impotent in the face of the text today. Finally, the costs of upsetting a constitutional rule does not necessarily have to be higher than changing standards, particularly given the opportunities for indirect updating techniques.

Student Blogger - Summer WIP: Eric Posner Attacks Feasibility Analysis

Cost-Benefit Analysis (CBA) is the dominant mechanism for weighing the utility of proposed regulation, but it is not without its critics. One major alternative is so-called "feasibility analysis". Eric Posner presented today his current paper (co-authored with fellow Chicago professor Jonathan Masur) which provides the first sustained, comprehensive attack on feasibility analysis. They conclude that feasibility analysis is unacceptably vague and has no substantial normative foundation justifying its use as an alternative to CBA.

Feasibility analysis proceeds in three steps. First, the regulatory agency identifies a risk. Second, it identifies the relevant industry that it will seek to reduce the risk in. And third, it tries to reduce the risk to the greatest degree possible, consistent with two restraints: technological, and economic. Because one of the main justifications for using feasibility analysis is that it can better account for concentrated harms, the sort of economic result that would render a proposed regulation "unfeasible" is often one that causes entire plants to close (as opposed to industry-wide layoffs scattered across every factor). Alternatively, OSHA has adopted a standard which says a regulation cannot cause more than either a 1% drop in revenue or 10% drop in profits.

Student Blogger - Summer WIP: Rowell Presents on the Timing of Preferences

Arden Rowell was the first Bigelow Fellow of the summer to present a work in progress with her article, "The Cost of Time.” In a host of risk-regulation contexts, regulators look at how much money people are willing to pay to reduce certain risks.  Unfortunately, regulators haven’t been paying attention to the question of when those risks occur—or when participants in the studies think they will occur.  As a result, the numbers regulators use are what Rowell calls “time-indeterminate”—they don’t have any particular timing attached to them. 

Rowell argued that time-indeterminacy is a problem wherever we care about preferences, but it’s particularly a problem when we use money to measure things.  That’s because money has a time-value—people would rather have a dollar today than a dollar a year from now. So asking how much people are willing to pay for a good (like a risk reduction), without pinning down when they think they’ll get the good, doesn’t actually tell regulators or anyone else very much that’s useful.