The Faculty Podcast

Listen to lectures by—and discussions with—the University of Chicago Law School's eminent faculty, as well as some very special guests.

April 24, 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.

April 10, 2014

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.

March 27, 2014

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.

March 13, 2014

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.

February 27, 2014

Edward H. Levi Distinguished Service Professor Geoffrey Stone talks about his involvement in the President's Review Group on Intelligence and Communications Technology. Organized by the Office of the Dean of Students and recorded on February 4, 2014.

February 13, 2014

Recorded on February 7, 2014, this session featured author Scott Turow as Plenary Speaker and Law School faculty Alison LaCroix, Judge Diane Wood, and Richard McAdams.

January 16, 2014

"Although everyone is familiar with the damage anger can do in both personal and public life, people tend to think that it is necessary for the pursuit of justice.  People who don't get angry when they are wronged seem weird to many people, lacking spine and self-respect.  And isn't it servile not to react with anger to great injustice, whether toward oneself or toward others?  On the other hand, recent years have seen three noble and successful freedom movements conducted in a spirit of non-anger: those of Mohandas Gandhi, Martin Luther King, Jr., and Nelson Mandela -- surely people who stood up for their self-respect and that of others, and who did not acquiesce in injustice.  My lecture argues that a close philosophical analysis of the emotion of anger can help us to see why it is fatally flawed from a normative viewpoint -- sometimes incoherent and sometimes based on bad values. In either case it is of dubious value in both life and the law.  I'll present my general view, and then show its relevance to thinking well about the criminal law and about transformational justice."

Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law School. This talk was recorded January 14, 2014 as part of the Chicago's Best Ideas lecture series.

December 19, 2013

Is there a principled reason why religious obligations that conflict with the law are accorded special toleration while other obligations of conscience are not? In Why Tolerate Religion? (Princeton, 2013), Professor Leiter argues there are no good reasons for doing so, that the reasons for tolerating religion are not specific to religion but apply to all claims of conscience. He also argues that a government committed to liberty of conscience is not required by the principal of toleration to grant burden-shifting exemptions to laws that promote the general welfare.

Brian Leiter is Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Values at the University of Chicago Law School.

This talk was recorded on November 19, 2013, as part of the Chicago's Best Ideas lecture series.

December 5, 2013

In Shelby County v. Holder, the Supreme Court dismantled one of the two pillars of the Voting Rights Act: Section 5, which had barred southern jurisdictions from changing their election laws unless they first received federal approval. The burning question now is what will happen to minority representation in the South in the absence of Section 5. In this talk, Prof. Stephanopoulos explores the differences between the defunct Section 5 and Section 2 of the VRA, which continues to apply nationwide. His sobering conclusion is that Section 2 provides substantially less protection with respect to both redistricting and franchise restrictions. The demise of Section 5 is therefore likely to reverse decades of progress for voting rights in the South.

Nicholas Stephanopoulos is Assistant Professor of Law at the University of Chicago Law School. This talk was recorded on November 13, 2013.

November 21, 2013

A panel of leading scholars discuss Douglas Baird's pathbreaking work on Contract Law published in his new book Reconstructing Contracts.

  • Avery Katz, Vice Dean and Milton Handler Professor of Law, Columbia Law School
  • Stewart Macaulay, Malcolm Pitman Sharp Professor & Theodore W. Brazeau Professor, University of Wisconsin Madison Law School
  • Ariel Porat, The Alain Poher Chair in Private Law, Faculty of Law, Tel Aviv University

Moderated by Omri Ben-Shahar, Leo and Eileen Herzel Professor of Law and Economics and Kearney Director of the Coase-Sandor Institute for Law & Economics, University of Chicago Law School.

This panel was recorded on October 23, 2013.