The University of Chicago Law School Faculty Podcast

While scholars in most fields argue about how laws can be changed to maximize their effectiveness, scholars of international law still regularly debate whether many of the most prominent international agreements have any effect on state behavior. Part of the reason that this foundational question is still being debated is that answering it with observational data has proven to be all but impossible. This talk will explain why research on international law has made so little progress determining whether two core areas of international law—human rights law and the laws of war—help to improve people’s lives, and then will explore how researchers are starting to use experimental methods to gain traction on the topic. Adam Chilton is Assistant Professor of Law at the University of Chicago Law School. This talk was recorded on November 4, 2014, as part of the Chicago's Best Ideas lecture series.

Richard A. Posner, Senior Lecturer in Law and a judge on the Seventh Circuit Court of Appeals, devoted a lunchtime keynote to discussing how judges might receive and view empirical research. Richard A. Posner is a Senior Lecturer in Law at the University of Chicago Law School. Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan, Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years, he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the University of Chicago Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit. He was the chief judge of the court from 1993 to 2000. This talk was recorded on October 23, 2014.

Two of the best ideas of the last half-century describe strategies for using legal remedies to solve social problems. One is the concentration of liability on a well-situated problem solver, or “least cost-avoider,” who can always contract out the work to be done (thus reflecting Chicago’s Very Best and Biggest Idea, the Coase Theorem). But another is the opposite of the first, for it involves the distribution, or spreading, of legal responsibility across many potential problem solvers, who might cooperate or work alone. Comparative negligence and Superfund liability for environmental harms reflect this strategy. This Chicago’s Best Ideas talk explores this tug-of-war, or evolutionary pattern, involving the two opposing strategies. How does law know which to use? Most important, what is the likely evolution of law as citizens call on Big Government to solve their big problems, like climate change or access to health care, and how does technological change alter the likely balance between these two strategies? Saul Levmore is the William B. Graham Distinguished Service Professor of Law at the University of Chicago Law School. This talk was recorded on October 21, 2014, as part of the Chicago's Best Ideas lecture series.

Supreme ​Court ​Preview: ​ Constitutional ​Interpretation ​at ​the ​Roberts ​Court Hear Professors ​Justin ​Driver, ​Jennifer ​Nou, ​and ​David ​Strauss​discuss ​what ​divides ​the ​current ​Court ​and ​what ​unites ​it. ​Their ​lecture ​will ​be ​followed ​by ​a ​lively ​Q&A ​session ​with ​alumni ​and ​guests ​in ​attendance. This First Monday alumni event was recorded on October 1, 2014 in Washington, DC.

Professor Brown-Nagin's talk examines the legacy of The Honorable Constance Baker Motley—and break new ground in the study of civil rights, women's rights, and the legal profession. A protégée of Thurgood Marshall, Motley litigated in southern courtrooms during the 1940s and 1950s, when women lawyers scarcely appeared before the bar. She captivated onlookers who had rarely seen a woman or a black lawyer, much less the extraordinary combination—a black woman lawyer. In 1966 Motley then became the first African-American woman appointed to the federal judiciary. After a long confirmation battle, she ascended to the United States District Court in New York. In her new post, Motley sometimes ruled as segregationists had feared and as liberals had hoped. Typically, Motley deferred to constraints of the judicial role. Therefore, Professor Brown-Nagin concludes, Motley's judicial career demonstrates that—more often than not and regardless of who presides—courts preserve hierarchy. Tomiko Brown-Nagin is Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, Professor of History at Harvard Graduate School of Arts & Sciences, and Co-Director, Program in Law and History at Harvard University. This talk, the 2014 Fulton Lecture in Legal History, was recorded on May 8, 2014.

In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. But a Chicago lawyer might doubt this model, believing judges are maximizing something other than compliance with the law. In this CBI, Professor Henderson examines judicial compliance with a mandatory Congressional command, and uses it to offer a richer and more nuanced model of judicial behavior. M. Todd Henderson is Professor of Law and Aaron Director Teaching Scholar at the University of Chicago Law School. This talk was recorded on April 15, 2014, as part of the Chicago's Best Ideas lecture series.

Professor Todd Henderson leads an engaging discussion with Yammer Founder and CEO, David Sacks. David has been involved in the Internet space more than 10 years as an entrepreneur, executive and investor, starting with PayPal in 1999. He was PayPal's chief operating officer and product leader, taking the company from startup to IPO and eventual sale to eBay for $1.5 billion. Subsequently, he founded Geni.com, a genealogy website that enables millions of family members to collaboratively build an online family tree. Geni was acquired by MyHeritage in 2012. He also produced and financed the movie "Thank You For Smoking." Also in 2012, David sold Yammer to Microsoft for $1.2 billion. David holds a B.A. in Economics from Stanford University and a J.D. from the University of Chicago Law School. This talk was recorded on May 2, 2014.

As part of the anti-abortion movement's legislative campaign, seven states have passed bans on sex-selective abortion and many more are pending, including in Congress. Advocates of the bans argue that they are needed to prevent widespread elimination of female fetuses by Asians in the United States. They argue that the United States is contributing to the global pandemic of "missing women" and that sex-selective abortion must be banned to promote women's equality. Opponents of these bills point out that they are a "wolf in sheep's clothes" couched in the language of women's equality, but restricting women's autonomy and unfairly stigmatizing minorities. Students in the International Human Rights Clinic at the University of Chicago Law School have been working with economists and the National Asian Pacific Women's Forum to draft a report that will bring empirical data to bear on these policy debates. This panel was recorded on April 24, 2014 and was sponsored by: International Human Rights Clinic, Law Students for Reproductive Justice (LSRJ), Asian Pacific Law Students Association (APALSA), and South Asian Law Students Association (SALSA). Panelists included Sital Kalantry (UChicago Law), Sujatha Jesudason (University of California, San Francisco), Arindam Nandi (Center for Disease Dynamics, Economics and Policy), Alexander Persaud (University of Michigan), Kelsey Stricker (3L), Miriam Yeung (NAPAWF), and Brian Citro (UChicago Law).

This talk was recorded on April 25, 2014, as the Law School's annual Loop Luncheon.

The U.S. Constitution is "the supreme Law of the Land." Of course some of its provisions are vague and must be interpreted. But when the Constitution says something clearly, we follow it. Don't we? Actually things are not that simple. There are several important examples of clear language in the Constitution that we do not follow. (For an example, look at the first word of the First Amendment.) Sometimes, in fact, it would be essentially unthinkable to follow themost obvious meaning of apparently clear language. These are not just slips of the pen by the Framers of the Constitution.Things are more interesting than that: the Framers made deliberate choices that we do not always accept, even though those choices are reflected in the text. The ways in which we ignore apparently clear language in the Constitution can teach us a lot about how American constitutional law actually works. This talk was recorded on February 26, 2014, as part of the Chicago's Best Ideas Lecture Series. David Strauss is Gerald Ratner Distinguished Service Professor of Law at the University of Chicago Law School.

Economics explains legal compliance via sanctions, particularly by the ability of legal sanctions to change the cost of behavior and deter noncompliance. Yet rational choice tools predict other ways in which law influences behavior: by suggesting a means of coordination and by informing beliefs. First, when people seek to order their behavior with others, law provides a salient means of coordinating. Second, law reveals information about risks and attitudes, which prompts individuals to update their beliefs and alter their behavior. The coordination and information powers are law's expressive powers, as distinguished from its coercive powers. They explain the law's sometimes puzzling efficacy, such as when tribunals are able to arbitrate disputes without the power of sanctions or legitimacy. Richard McAdams is Bernard D. Meltzer Professor of Law and Aaron Director Research Scholar at the University of Chicago Law School. This talk, the 2014 Coase Lecture in Law and Economics, was recorded on April 15, 2014.

The laws of intestacy are the same for men and women even though preferences for how one's estate should be divided differ by gender. Peanut-allergic octogenarian men and gluten-allergic pregnant women see the same warnings on consumer products even though they are interested in seeing information that is much better tailored to them. Companies have made enormous strides in studying and classifying groups of consumers, and yet almost none of this information is put to use by providing consumers with contractual default terms or disclosures that are tailored to their preferences and attributes. This lecture will explore the costs and benefits of personalizing various parts of American law and business practices. This talk was recorded on April 7, 2014. Lior Strahilevitz is Sidley Austin Professor of Law at the University of Chicago Law School.

Legal discussions of negligence focus on issues of harm, fault, and remedy in the context of failure to exercise reasonable care. The point of orientation is the negligent event. In this talk I want to investigate a related moral duty, the duty of due care. Its orientation is ex ante; it is an imperfect duty that ranges across private and public morality; its content is not restricted to injury and loss. The wrongful failure of due care need not increase the risk of a negligent event. An agent acting negligently in the moral sense has failed to take on the full burden of some other duty. The argument for this view of due care will lend support to three more general theses: about the nature and importance of imperfect duties, about the primacy of non-negligence, and about the rationale for different schemes of remedy on the legal side. Barbara Herman is Griffin Professor of Philosophy and Professor of Law at UCLA. This talk was recorded on February 26, 2014, as the Dewey Lecture in Law and Philosophy.

Libertarians often assert that regulation is unnecessary because the market will meet any existing consumer demand. The issue of smoking in bars is a paradigmatic context in which this argument arises. Libertarians argue that bar patrons (and employees) are free to patronize or work in whichever bars they choose. Accordingly, if workers or patrons want smoke-free bars, the market will provide smoke-free bars. For the libertarian, the fact that nearly every bar in every city allowed smoking prior to the enactment of smoking bans is proof that this is what employees and patrons really want. The market equilibrium is the efficient equilibrium. Our work calls this conclusion into question. We suggest that in many contexts there are many possible equilibria, not just one equilibrium. The fact that we live in one equilibrium rather than another might be merely a product of path dependence. For instance, the vast majority of bars might allow smoking (absent smoking bans) simply because behavior has evolved from a time when smoking was always allowed and not even viewed as harmful. If smoking had been banned until recently, and then the ban were repealed, a very different equilibrium might have emerged. If this is the case, then what follows? The recent wave of behavioral economics has led some theorists to advocate the possibility of "libertarian paternalism," where regulators designing institutions permit significant individual choice but nonetheless use default rules to "nudge" individuals toward informed or salutary choices. Here, we propose a type of libertarian paternalist intervention aimed directly at the question of multiple equilibria: temporary law. If an equilibrium exists only because of path dependence, there is no need for a permanent restriction on liberty. A state or city could simply pass a temporary law, allow the law to expire, and then examine the state of affairs that emerges. We thus propose imagining regulations that include an expiration date, and we will describe the many advantages of that approach. This talk was recorded on February 25, 2014. Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago Law School. Jonathan Masur is Deputy Dean and Professor of Law at the University of Chicago Law School. Richard McAdams is Bernard D. Meltzer Professor of Law and Aaron Director Research Scholar at the University of Chicago Law School.

Over 100 years ago, Chicago led the way in establishing separate courts for young people who committed crimes. These Juvenile Courts, soon in operation in every state, had two interrelated aims: The first was to separate adolescent offenders from adult criminals. The second aim was to help young offenders to grow up to become law-abiding citizens, although we knew much less than we thought we did about how to do this. In recent years, we have learned a great deal from psychologists and brain scientists about how young people develop and what affects that development, and that knowledge has increasingly been reflected in law and practice within the juvenile justice system. These insights have not, however, been brought to bear on the court process itself. The focus of my research is on young people's experience with the court process, and how that experience can foster or impair their development. A substantial body of social science focused on adults suggests that their experience in court had an important impact on their attitude about the law, generally, and their obligation to obey the law. Stated very simply, if adults believe they have been shown respect in court and have had an opportunity to participate meaningfully in a fair process, they are more likely to think of the law and law enforcement as legitimate, and are more likely to feel obligated to obey the law. Our understanding of child development, in general, and children's social development, in particular, predict that these "procedural justice" effects should be even stronger in children, and the limited studies looking at this effect, to date, offer some support for this prediction. If a court experience can have any developmental impact on young people, however, we should be very concerned about young people's current experience in juvenile court. Even in courtrooms filled with conscientious professionals, the juvenile court process conveys a disregard for young people and prevents their meaningful engagement in a process purportedly designed to address their needs. I bring together the optimism created by the procedural justice literature with a pessimistic portrayal of the current juvenile court process to argue for some experimentation with substantial reforms. Emily Buss is Mark and Barbara Fried Professor of Law at the University of Chicago Law School. This talk was recorded February 28, 2014, as part of the Chicago's Best Ideas lecture series.