The University of Chicago Law School Faculty Blog

Student Blogger - Fall WIP: Daniel Chen and the Effect of Sexual Harassment Law on Gender Inequality

Scholars, particularly economists, are of two minds when it comes to employment regulations aimed at protecting vulnerable groups. The goal behind these laws, of course, is to equalize the status of groups seen as vulnerable to economic discrimination, such as women or the disabled. One prominent position amongst economists, however, is that these policies often are counterproductive, raising the cost of employing the relevant groups and thus imposing unneeded costs upon them. In a new paper with Jasmin Sethi, Kauffman Fellow Daniel Chen finds evidence that sexual harassment law does help reduce gender inequality in the workforce.

It's useful first to explore the mechanics of why theorists posit such laws might or might not operate to the benefit of the groups they're attempting to aid. One position holds that the laws, by imposing increased enforcement costs on firms, disincentivize them from hiring the group in question. For persons already hired, these laws act as forced benefits -- if a firm willing to spend X amount of resources on a given employee, the amount they are forced to expend to stay in compliance with specific laws or regulation will simply be taken away in other areas (salary, benefits, hours, etc.). This model also posits that the market should resolve invidious discrimination, because firms which don't discriminate should be able to seize a competitive advantage by exploiting the labor of otherwise superior workers irrationally excluded by their competitors.

With regards to sexual harassment, however, an alternative view emerges. Harassment can be seen as a form of "economic warfare" waged by insiders (i.e., men who already have jobs) against outsiders who might underbid them and thus deprive them of established benefits. By withdrawing their cooperation (i.e., harassing), the men can lower the productivity of the competing group, removing their competitive advantage and prompting firms to either refrain from hiring or dismissing women. The dissenting position explains why firms don't quash discrimination themselves by noting that the insiders may be risk-averse to any changes in the employment structure. It is also possible that the managers in a position to enforce an anti-harassment norm may also be the very "insiders" benefiting from it (indeed, there is research indicating that women in supervisory positions are more likely to face harassment than non-manager women).

To test these models, Chen and Sethi examined how labor markets shifted in response to sexual harassment decisions by federal courts, specifically, how firms responded to plaintiff "wins" at the appellate level (the authors use the idiosyncratic variation in pro plaintiff decisions provided by the random assignment of judges (of particular gender and party affiliations) to panels). Disaggregating the results amongst the federal circuits helped provide variation in results for comparison purposes. They found that sexual harassment law reduced gender inequality by 1.3-15% in the areas of employment status, hours worked, wages, and management status -- seemingly buttressing the dissident view and differentiating harassment law from other areas, such as disability and maternity benefits, where the dominant view had been borne out via empirical research.

Digging deeper into the results, at least two further findings stand out. First, the reduction in gender inequality was enjoyed predominantly by women who were not already in the workforce. This is consistent with the insider/outsider model forwarded above: that harassment law prevents entrenched actors in sex-segregated occupations from locking out newcomers. Reducing harassment prompts women who were previously outside the workforce to enter, but women who already have jobs see little change. Second, the results demonstrated that firms respond to victories by sexual harassment plaintiffs regardless of how large or small the damage award is. This indicates that the response by the firms was motivated less by a desire to avoid the monetary sanctions of a damage award, and more by reputation or other less tangible costs associated with the risk of being seen as a harassment-friendly workplace.

Student Blogger - Think of the Consequences

Imagine you are the newly appointed director of the Centers for Disease Control. You are reviewing a report that suggests that a new vaccine is likely to prevent thousands of deaths from an impending outbreak of a new viral epidemic. However, vaccines like this one have had problems in the past, causing many recipients to get severely ill. You call your two most trusted advisors, Ben and Kent, into your office and explain your problem, and say, “Look, fellas, I’m not going to play politics here. I want to do the right thing.”

Ben quickly chimes in, “This is an easy one. You only need to look at the total social benefits weighed against the total social costs. Avoiding thousands of deaths sounds like a lot of benefit, so I say release the vaccine.”

Kent interjects, “Wait. Don’t you remember your Hippocratic Oath? You have a moral duty to do no harm. That has to be your guiding principle.”

This exchange leaves you in a bit of a muddle. Should you start by aggregating harms and benefits or should you start from an acknowledgment of a duty to respect the inviolability of each individual affected by your policy choice? What did Kent actually advise you to do?

Stanford Law School’s Barbara Fried is skeptical that any answer derived from a duty-based theory like Kent’s can get off the ground. Fried presented her argument from a forthcoming book on risk regulation at the Law and Philosophy Workshop.

Student Blogger - Lunchtime Talk: Virtue and Drug Use

As the State of California prepares to debate whether or not marijuana should be decriminalized, the Federalist Society sought to resolve an issue of higher magnitude: whether virtue and drug use are incompatible.  The lively lunchtime debate featured plenty of snacks and The Law School’s own Professor Richard McAdams and Professor John Baker of the LSU Law Center to hash out an answer.

The most surprising part of the debate was that there was not much of a debate on drug laws at all.  Both professors agreed in general the that so-called “war on drugs” had largely been a waste of resources given its growth to a multi-billion dollar economic intrusion and espoused general support for the DOJ’s new stance on marijuana.  As for whether virtue and drug use are incompatible, let’s just say the professors agreed that everything in moderation was a good creed to follow.  Who says you can’t pass on a question in law school?

Professor Baker began with a summary of the medical marijuana laws in California and wondered aloud whether AG Holder was a libertarian or just soft on crime for the DOJ’s reversal on prosecutions.  Given that there are over 4,500 federal crimes, only a small fraction of which are actually enforced, Baker proposes that it just might be an end to the unjust and disproportionate focus on drug laws.  Baker even went as far to say that he thinks that the federal government should be out of the business of governing people altogether. 

For drug cases in particular, federal policies blur the line between crimes and simple regulatory offenses.  To Baker, crimes are acts that need to be prohibited while regulation says what you are doing is actually okay, just let me—the federal government—tell you how to do it.  Thus, the federal government spends money on labels and chasing regulatory offenses disguised as crimes in order to justify their existence. 

Student Blogger - Fall WIP: Youngjae Lee asks What's Wrong with Disloyalty?

Disloyalty occupies a special place in the law. It gets its very own constitutional clause (Article III, Sec. 3). Over British history, persons convicted of high treason could expect to receive particularly harsh punishment well above that of other felonies (hanged, drawn and quartered for men, burning at the stake for women). Yet missing from this account is a seemingly very simple question: What's Wrong with Disloyalty? And this was the subject of visiting professor Youngjae Lee's fall WIP talk.

Before reaching the meat of his paper, Professor Lee first disaggregates "nonloyalty" from "disloyalty". Loyalty, Lee argues, is a feeling or sentiment towards an institution such as a state. Nonloyalty is the lack of such sentiment. Disloyalty, by contrast, involves some overt act harming the entity. The distinction matters, because it helps diminish one of the intuitive problems many have with policing disloyalty in the first place: that it will punish thoughts (or worse, lack of thoughts). While most of us maintain an intuition that disloyalty is a bad thing and probably worthy of punishment, we simultaneously fear mass arrests because one failed to attend a Veteran's Day event or failed to cheer loudly enough for team USA at the Olympics.

However, even this does not get us all of the way there. If disloyalty to the state involves taking some overt act against it (or in favor of a rival), and even if we expel pure speech -- such as rooting for the Canadians against the Americans at the Olympics (full disclosure: as a kid, I typically rooted against team USA in international competitions, primarily out of an instinctive empathy for the underdog. To borrow from and update Joe E. Lewis, in 1992, rooting for the American Olympic basketball team was like rooting for Microsoft -- it just seemed unsporting) -- we could still imagine something like agreeing to be a waterboy for team Canada. An overt act? Yes. "Disloyalty"? Seems harsh.

Student Blogger - Fall WIP: Bradford and Ben-Shahar on Rewarding the Enforcers of International Law

They say you catch more flies with honey than with vinegar. They might be wrong. But what would really be great is if the same substance could serve as both honey or as vinegar, as the job requires. Anu Bradford, presenting a paper co-written with fellow Chicago Professor Omri Ben-Shahar, thinks they may have that magic policy in the nettlesome field of international law enforcement.

Enforcement of international agreements is a difficult and costly endeavor. In an ideal world, the threat of sanction would be the preferable way of deterring cheating behavior, because a threat alone is costless. Unfortunately, a threat is only effective if it is credible, and it is only credible if the cost of following through is less than the cost of simply absorbing the bad behavior. Because sanctions are often expensive, many threats of punishment are not credible, and thus bad behavior goes undeterred.

An alternative to punishment (vinegar) is rewards (honey) -- paying off potential violators to encourage them to play nice. Rewards are generally cheaper than punishment, but at root the suffer from a similar problem: if the amount of harm to the enforcer is less than the benefits accruing to the violator, the enforcer has no incentive to offer a reward high enough to convince the wrongdoing to cease misbehaving. Consequently, if there is a desire to continue reducing the level violation below this point (for example, to account for difficult to monetize externalities, as often is the case in environmental regulations)

Bradford and Ben-Shahar's solution is deceptively simple: have the money do both. Enforcers should pre-commit a certain amount of money to an escrow account, with the promise that it will be offered out as a reward to violators who clean up their act. If the violator refuses to do so, then that money is used instead to finance a punishment, effectively multiplying the investment. They analogize this to a system wherein bail money is used to finance bounty hunters (if the defendant skips town). Not only does the wrongdoer lose the money they put up for bail (the reward for coming to trial), but they also face increased resources directed against them as punishment.

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.