The University of Chicago Law School Faculty Blog

Student Blogger - Philosophy of Utility, Utility of Philosophy

Speaking on the topic of Utilitarianism with the Law and Philosophy Workshop, denizen of the Seventh Circuit and favorite of the Law School, Judge Richard Posner offered the mischievously understated opening: “I don’t really have much interest in the normative side of Utilitarianism.”

This might strike some as odd coming from a thinker popularly associated with the view that judges ought to pursue economic efficiency as a primary goal (a description most recently repeated in January 11^th’s New Yorker).  Posner elaborated that Utilitarianism has been extremely valuable for focusing our attention on practical consequences and for providing a tool to debunk the talismanic use of powerful words like “justice” and “rights.”  But Utilitarianism, taken as a normative doctrine, is plagued by “insuperable boundary problems.”  (With respect to economic efficiency, Posner noted that efficiency is one thing a judge might value, but there are other things that might factor into finding the “best” law.) 

Student Blogger - The Mysteries of the Roman Sales Contract

Even as turning to the social sciences for insight into the law remains all the rage among the legal academy, there are those who turn not to the present for those insights but to the past. One such individual is Professor James Gordley of Tulane Law School, who was in town last week to present his new paper, The Origins of Sale: Some Lessons from the Romans, at the first meeting of the Public Law and Legal Theory Workshop of the new year.

Student Blogger - Winter WIP: Stone's Ten Things We've Learned About Free Speech

Geoffrey Stone delivered this week's WIP talk, entitled Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century. At the start of the 20th century, there was virtually no free speech doctrine. The jurisprudence of the First Amendment developed through World War I, the red scares, McCarthyism, and Vietnam into what we have today: an imperfect, still developing, but cohesive model that remains the global standard (excepting a few high profile areas, like hate speech).

Student Blogger - Winter WIP: Leiter/Dworkin Beef Hits Chicago

In Justice in Robes, Ronald Dworkin identifies a “Chicago School of no-nonsense jurisprudence” that he associates with Judge Richard Posner.  In the new year's first WIP talk, Brian Leiter’s work-in-progress, "In Praise of Realism (and Against 'Nonsense' Jurisprudence)", recasts the Dworkin-Posner dispute as a disagreement about two different kinds of theories that he dubs “Moralism” (Dworkin) and “Realism,” a dispute whose history Leiter traces through Thucydides, Plato, Nietzsche, and Rawls, among others.  The title of Leiter's piece is itself a jab at Dworkin's efforts to distinguish his "moralist" jurisprudential model from the "realists." Dworkin refers to himself as praising a "theoretical" account of judging, in contrast to the "anti-theoretical, no-nonsense jurisprudence" of his opponents. So, Leiter responds that this must make Dworkin an exponent of "pro-theoretical, nonsense jurisprudence".

Leiter's allegation is that Dworkin effectively has no account of how judges behave. Instead, he labors under Platonic "optimism" that simply takes on faith that a world properly understood will make moral sense. Consequently, when looking at how judges decide cases, we should take them at their word when they tell us they're decide cases in a way that is coherent with what comes before, is morally correct, and represents the one true "right" answer as a matter of law. And more importantly, we should do this even in the face of considerable empirical and social science evidence indicating alternative explanations. Dworkin wants to instead locate the "hidden logic" of judicial decisions in their "justificatory ascent" -- the degree to which we can hold judicial decisions accountable to the big principles inlaid within the legal regime.

But this isn't really what happens. Consider the example of the "privity of contract" doctrine rejected in MacPherson. It wasn't that MacPherson grasped, in any real sense, the "real" principle that had been progressively developed in prior cases applying the "inherently dangerous" standard. Rather, what had happened is that the latter standard had dissolved into near-complete incoherence. Circumstances changed, the rule no longer made sense, so Justice Cardozo resolved to change it. Neither Dworkin nor, for that matter, Cardozo provide any traditional legal justification for why the change occurred. The story of a "justificatory ascent" is nonsense made up after the fact. Without the pre-existing Platonic commitment to the notion that any sensible account of the world will also make moral sense, there is no reason to substitute perfectly good explanatory accounts of judicial behavior for poor ones because the latter have the "advantage" of conforming to systematic moral vision.

To be clear, Leiter is not opposed to pressing for particular normative claims, in legal contexts or elsewhere. The problem is when such commitments are recast as descriptive accounts of how courts actually operate. Realism, as the name indicates, is about clear, untinted descriptions of what courts really are doing. This is quite consistent with trying to muster whatever rhetorical, persuasive, or organizational tools available to get them to do something else.

Student Blogger - Moral Relevance and the Demand Curve

Our good friend Jones has amassed a fortune through an enviable recipe of hard work and clean living. Jones has no heirs, and unfortunately for us, does not consider us to be particularly good friends of hers. Actually, she has said repeatedly that she sees little point in leaving even a cent of her money behind when she dies.

Sadly, in the past week Jones learned that she has a life-threatening brain tumor. Given the standard medical treatment, covered by the medical insurance plan Jones selected for herself, doctors tell Jones she has a 10% chance of surviving beyond one month. However, one doctor in the country has developed a ground-breaking new technique called the “super gamma knife.” This safe technique costs $10 million and imposes remarkable social costs (the doctor has to notify the local power companies before each procedure to avoid brownouts, and performing the procedure takes him away from his work as a youth mentor). But the procedure would increase her chance of surviving beyond one month to 15%. Relevantly, when researching health insurance, Jones opted against purchasing the super-expensive “DeLorean” plan, which would have covered this type of futuristic procedure.

Jones realizes that $10 million is a lot to spend for such a small increase in her chance of survival, but since her money is worth nothing to her after she dies, she might as well pay for the cutting-edge technique.

Professor Ariel Porat, in a developing paper co-authored with Avraham Tabbach and Omri Yadlin, suggests that this story should bother us for a number of reasons. Porat discussed the paper with the Law and Philosophy Workshop.

Student Blogger - Fall WIP: Douglas Baird Presents "Car Trouble"

"Good afternoon, and welcome to NPR's 'Car Talk'. Today, we have special guest Douglas Baird of the University of Chicago Law School, here to talk with us about the bankruptcy law implications of the recent crisis in the American automotive industry. Glad to have you with us, professor."

"Good to be here."

"Could you start be explaining the roots of the problem?"

"Well, it's very simple, actually. The domestic automobile industry is tooled for a different technological era and a different car-selling era. The American car market may well be saturated -- there are already more cars in the country than there are people with drivers licenses, and with technological improvements in automobile production, cars have to be replaced less frequently. The result is that the automobile industry has seen sales drop from a consistent 15 million/year, to less than 10 million. But production capacity is still tooled for the prior era, leading to tremendous fixed costs that aren't going to be recouped in the foreseeable future."

"So how do we get rid of that excess capacity?"

"Kill Chrysler. It sounds bloodless but it's true. Some capacity had to be shut down, and Chrysler is not only the least valuable and efficient of the big three, but everyone recognized that it had no real prospects for recovery or renewal. The only question was whether it should be shut down immediately, or gradually to allow some of its functions (and perhaps its few profitable brands, like Jeep), to be taken over by Fiat. For a variety of reasons, the government chose the latter approach."

Student Blogger - Rights or Welfare

The modern international human rights regime needs an ideological transplant. Such is the diagnosis of Professor Eric Posner in his recent essay, Human Welfare, Not Human Rights. Posner considers several striking symptoms that characterize a moribund system of international cooperation. He discussed the paper and the symptoms with the Law and Philosophy Workshop.

Though the paper details several important points, two lines of argument were of particular interest to Workshop participants. First, Posner reports that there is no consensus among scholars as to the philosophical justification for protecting human rights, much less for any enumerated list thereof. Worse, those scholars that do engage in debate on this front largely ignore the structure of the existing international human rights regime. Second, in many cases the international regime mandates expenditure of resources to secure the protection of a particular right irrespective of competing demands for those scarce resources. At the same time, where such tradeoffs are permitted, the regime fails to indicate how to evaluate the merits of competing legitimate demands.

The prescription? Posner suggests that where there is only largely superficial agreement about human rights, nobody denies that states have a responsibility to increase the welfare of their populations. An international treaty regime that focused on requiring states to maximize the welfare of their populations would achieve a broad philosophical and international consensus, where human rights cannot. Furthermore, a regime focused on welfare would provide better guidance for pursuing and evaluating compliance by providing a single metric for maximization.

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.