The University of Chicago Law School Faculty Blog

Student Blogger - Summer WIP: Levmore Presents on Interest Groups and Incrementalism

The old saying tells us you have to walk before you run. In American politics, there is a strong bias in favor of incremental change -- taking small steps to learn what works and what doesn't rather than attempting to enact radical reforms in one fell swoop. In his latest paper, however, Dean Saul Levmore suggests that there might be some hidden dangers to the incrementalist model. Not always a cautious avenue towards prudent changes, incrementalism can act as a cover for powerful interest groups to achieve socially disoptimal outcomes through divide and conquer strategies.

Before Dean Levmore makes the bulk of his argument, though, he takes aim at the core mythos that gives incrementalism its positive aura: that it is a valuable teaching tool that allows us to feel our way gradually to the optimal social outcome. Certainly, sometimes incremental changes have this effect. But there is no reason to think that, as a general rule, incremental change is always a superior teacher than alternatives, such as a brief experiment with a dramatic change, or drastically different regulatory schemes across jurisdiction. A month where smoking was prohibited everywhere may well give society more useful information in planning future regulations than an "incremental" prohibition on smoking in restaurants.

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.

Student Blogger - Summer WIP: Bernard Harcourt on Neoliberal Penality

A lively WIP commenced Thursday with Bernard Harcourt presenting his ongoing project (previously seen as one of Chicago's best ideas) on what he calls "neoliberal penality."

The idea behind neoliberal penality is that as the norm against government intervention in the economy has increased, governmental energies have been channeled instead to an ever-increasing carceral sphere. Neoliberalism argues that the market is naturally ordered, and that government intrusion constitutes a distortion that generally should be avoided. By contrast, the penal arena is seen as an appropriate venue for government to flex its muscles. Consequently, the social forces which might press against increased penality are weakened, as crime and punishment are precisely the areas in which government is seen as having the greatest claim to authoritative legitimacy.

Student Blogger - Summer WIP: Todd Henderson and the "Nanny Corporation"

Professor Todd Henderson kicked off Chicago's Summer Works in Progress events with a presentation of his latest project, "The Nanny Corporation and the Market for Paternalism." Henderson identifies corporate nannyism as the increasing trend amongst businesses to regulate the seemingly private conduct of their employees, on the grounds that it imposes negative externalities on other members of the pool. For example, where employees all pay into company health insurance programs, non-smoking employees cross-subsidize the increased health care costs of their smoking fellows. Non-smokers thus have an incentive to agitate in favor of policies which would reduce these costs, such as differential insurance rates for smokers versus non-smokers, or even an outright prohibition on smoking. The effect of this demand is to create a "market for paternalism", which both corporations and government can seek to meet.

Importantly, Henderson locates the incentive for this sort of "nannying" activity not in any particular moral or social ideal held by the regulator (governmental or corporate), but rather as an extension of self-interest. Nannying reduces overall costs and responds to demands by employees (or citizens) who don't want to bear the costs of cross-subsidization. This contrasts with many accounts of proto-corporate nanny entities (such as "company towns"), which often focused on a sort of moral zealotry as the primary motivation for their existence.

Student Blogger - Ambiguity about Ambiguity

Professor Anup Malani on how we know when we don't know

What are judges supposed to do when statutes are ambiguous? This question is the source of endless quantities of legal scholarship and is at the core of public debates over the proper role of judges. While the is obviously important, it is hard to see how anything really new could be said. Asking this question - how to deal with ambiguity - presupposes another, however: that ambiguity exists in the first place. How do we - or any given decisionmaker - know when a text is ambiguous? Relatively little academic work has been done on this question, which would seem to be at least as important.

Chicago's Anup Malani, along with co-authors Ward Farnsworth and Dustin Guzior (both at Boston University) attempts to fill this gap with his paper Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation, which was presented at this week's Works in Progress (WiP) talk at the law school. The paper is based on an empirical study of nearly 1,000 law students.

Student Blogger - Can Charities Be Too Rich?

Professor Takeshi Fujitani on charitable wealth accumulation

Charities generally exist to help the poor - but they themselves are sometimes quite rich. Is this a problem? Some people seem to think so. Universities and other non-profit organizations with substantial endowments have been criticized for failing to provide "public benefit". The sharp decline in such endowments over the past year has of course muted this criticism, but the underlying issues remain - many nonprofits still have vast endowments, and these are likely to grow significantly in the future. But what, exactly, is the problem with this? Are charities that build reserves doing anything wrong - should they spend now instead? If we think they should be making different choices, should we change our policies towards tax treatment of charitable giving to realign incentives?

Professor Takeshi Fujitani addressed these issues in his recent paper Does the 'Timing of Charity' Matter?: A Theoretical Reexamination of Tax Policy for Endowed Nonprofit Organizations presented at last week's Works in Progress (WiP) talk. In the paper and talk, he argued that criticism of charitable wealth accumulation is not particularly focused, but that it may have some validity when examined closely. He further suggested that tax subsidies for such wealth accumulation can be separated from those for charitable giving in general, and that the justifications for the former subsidy are much weaker.

Student Blogger - Claire Priest Reassesses the Death of the Fee Tail

The fee tail, as any first year property student knows (or knew, then promptly forgot), is a type of interest in property that renders it inalienable, instead automatically passing on to the owner's heirs upon his death. Though a long standing component of English property law, the fee tail is no longer enforceable in the United States, and indeed was relatively quickly subject to attack after the Revolutionary War. The common explanation for the fee tail's death was that it offended America's incipient republican spirit -- enabling the creation of large hereditary estates which too closely resembled European aristocracies.

In her presentation to the last session of this year's American Legal History Workshop, Northwestern Law Professor (joining Yale's faculty this summer) Claire Priest sought to complicate that explanation and offer a different picture for why the fee tail withered away soon after the revolution. Acknowledging that republican ideals may have played some role, Priest focused her inquiry on a different aspect of entailed estates -- their shielded status from creditors -- and how that affected the way that fee tails were employed in the revolutionary era.

Student Blogger - Chicago’s Best Ideas: Bernard Harcourt on “Neoliberal Penality: A Genealogy of Excess”

In light of the financial crisis, many people are calling for greater regulation of the market. A few years ago, many called for freeing the market from excessive regulation. The common thread underlying both sentiments is that there is there is a spectrum along which market regulation can be located, from free at one end to excessively regulated at the other. These assumptions are ubiquitous, but not quite universal.

On May 21, Professor Bernard Harcourt gave a talk in the Chicago's Best Ideas lecture series entitled "Neoliberal Penality: A Genealogy of Excess" (about which he has a paper in progress). Harcourt took on the concepts of "free market" and "excessive regulation" by highlighting two snapshots in time: grain laws in France in 1739, commonly considered to epitomize excessive regulation; and the Chicago Board of Trade in 1996, representing the free market.

Student Blogger - Divide and Conquer

Professor Eric Posner (and co-authors) on a classic strategy - and law's responses to it  

What do labor organizers, Germans, and criminals have in common? Each of their respective bêtes noire - union-busting employers, the Emperor Tiberius, and clever prosecutors - are masters of a classic strategy: divide and conquer. Employers may try to buy off some employees and punish others to prevent unionization or gain an advantage in negotiations. Tiberius famously played German tribes against each other to ensure Roman dominance. And, in the well-known Prisoner's Dilemma, a nameless prosecutor separates conspirators and offers each a deal that makes squealing attractive. These are only a few examples of what surely must be one of the oldest moves in human interaction. But is "divide and conquer" just a loosely-used label, or do these different examples have something in common? If they do, does that tell us anything interesting about what we should think or do about uses of the strategy?

Chicago's Professor Eric Posner, along with co-authors Kathryn Spier and Adrian Vermeule (both at Harvard Law School) tries to answer these questions in his draft paper titled, not surprisingly, "Divide and Conquer", which was presented at last week's Works in Progress (WiP) talk. Prof. Posner and his co-authors come to the conclusion that there is a common thread running through many incidents labeled as "divide and conquer," and that there are interesting implications of this that might not be apparent when looking at each type of incident in isolation. Posner and his co-authors first classify different methods of divide-and-conquer behavior, then investigate the use and limits of legal rules for countering divide-and-conquer behavior in situations where it is harmful.

Student Blogger - Political Commitment, Entrenchment, and Self-Enforcement in Constitutional Law

The difficulty in reconciling constitutional constraints, especially those enforced by judges, on the authority of democratic majorities given American society’s commitment to popular sovereignty and self-governance—the “countermajoritarian difficulty”—has received a lot of attention in constitutional scholarship over the years. A less explored, but no less important, question is why democratic majorities follow such constraints rather than treating them as “parchment barriers” easily crumpled and discarded?

Professor Daryl Levinson of Harvard Law School presented a paper at this week’s Law & Politics Workshop addressing this question from a Madisonian perspective. James Madison believed constitutional rights by themselves were only effective as a signaling mechanism to a widely dispersed majority that it needed reign in its agents in government. By themselves, constitutional rights are fairly ineffective restraints against the majority itself. As outlined in Federalist Numbers 10 and 51, Madison hoped the Constitution also created institutional arrangements that empowered political actors whose interests would align with constitutional rights so that the majority could be adequately checked.