The University of Chicago Law School: Ideas are Everywhere

The University of Chicago Law School is about ideas. We love to generate them, turn them around in our heads, discuss them with colleagues, and put them out into the world. We’re interested in discussing these ideas not just with the people who know a lot about them, but with smart people who bring fresh perspectives.

So we've begun a program we're calling "Ideas Are Everywhere," sending books by our faculty out into the world beyond our campus. If you've found one of these books, please leave your comments below, along with a note about where you found it and the number written in the inside cover of the book. We'll be keeping track of how these Chicago ideas travel across the world via the map below.

If you found the book interesting, we hope you'll pass it on to a friend, or just leave it in a coffee shop or on an airplane for someone to find.

• = Richard Posner, How Judges Think
• = Martha Nussbaum, Liberty of Conscience
• = Bernard Harcourt, Illusion of Order

Bernard Harcourt, Illusion of Order

"The fundamental problem with order maintenance is not that it rests on discussion of the norm and social meaning of orderliness, but rather that it fails to be critical about these categories — orderly, disorder, and the disorderly — and to consider the ways in which they they are sahped by the policing practices that surround us... The alternative approach that I propose focuses not only on social meaning and short-term behavior and perception, but also, and more important, on the relationship between policing practices and the perceptions, thoughts, feelings, understandings, and relations of the contemporary subject." — from the Introduction

In Illusion of Order, Julius Kreeger Professor of Law and Criminology Bernard Harcourt challenges the "broken windows" theory of crime, which argues that permittiing minor misdemeanors to go unpunished encourages more serious crime. The problem, Harcourt, argues, is that the broken windows theory has never been empirically verified. Even in theory, it rests upon unexamined categories of "order" and "disorder" which do not exist independent of our society's techniques of punishment. Harcourt examines the rise of this order-maintenance approach to criminal justice and lays the groundwork for "a new vision of punishment and criminal justice analysis."

Richard Posner, How Judges Think

 “I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges—and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession—including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . . This book parts the curtain a bit.” — from the Introduction

In How Judges Think, Richard Posner provides clear, accessible insight into how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases for which existing rules are inadequate, judges’ decisions are informed by their experience, their emotions, and their often unconscious beliefs, influenced by their social, religious, political, ethnic, and educational backgrounds. In doing so, they take on a legislative role, though one that is constrained by professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government.

Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists, focusing on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning. Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. As such, Posner argues, the Supreme Court, more than any other court, is best understood as a political court.

Richard A. Posner is a Senior Lecturer at the University of Chicago Law School and a Circuit Judge for the United States Court of Appeals, Seventh Circuit.

Did you find a copy of How Judges Think? Please leave a comment with your thoughts about the book, as well as where you found it and the number written in the inside cover of the book.

Martha Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality

“Religious fairness has periodically endured challenges throughout [U.S.] history, some subtle and some less subtle, some apparently benign and some violent. People aren’t always content to live with others on terms of mutual respect. So the story of [the American tradition of religious fairness] is also the story of the attacks upon it, as different groups jockey for superiority. What has kept the tradition alive and healthy is continual vigilance against these attacks, which in each new era take on a different concrete form. This book concerns both the tradition and these periodic attacks, and its purpose is both to clarify and warn. Without vigilance, our “fixed star” [of religious fairness] may not be fixed for much longer.” — from Chapter 1, “Introduction: A Tradition under Threat”

The founders of the future United States established a constitutional order that granted equal liberty of conscience to all and took a firm stand against religious establishment. This respect for religious difference, Nussbaum writes, formed our democracy. Yet today there are signs that this legacy is misunderstood. The prominence of a particular type of Christianity in our public life suggests the unequal worth of citizens who hold different religious beliefs, or no beliefs. Other people, meanwhile, seek to curtail the influence of religion in public life in a way that is itself unbalanced and unfair. Such partisan efforts, Nussbaum argues, violate the spirit of our Constitution. Weaving together political history, philosophical ideas, and key constitutional cases, Liberty of Conscience is a historical and conceptual study of the tradition of religious freedom that has been central to U.S. history.

Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law School. She also holds appointments in the Philosophy Department and the Divinity School at the University of Chicago.

Did you find a copy of Liberty of Conscience? Please leave a comment with your thoughts about the book, as well as where you found it and the number written in the inside cover of the book.