Chicago’s Best Ideas Off to Busy Start

Meredith Heagney
Law School Office of Communications
November 20, 2012

Professors, students, ideas, and food – it’s an irresistible combination that comes together for a popular lecture series at the Law School called Chicago’s Best Ideas (CBIs).

The lectures were started in 2002-2003, in honor of the Law School’s centennial, when faculty spoke on historic ideas from Law School thinkers. Today, they talk about their own work. And of course, there’s always complimentary lunch.

Ryan Hehner, a 3L, said he tries to attend as many CBIs as possible because it exposes him to more professors and their work.

“You can’t take a class with everyone, and reading their paper isn’t the same as hearing them talk,” he said.

Fellow 3L Joe Hammon agreed.

“I have some fairly wide interests, so normally they have at least some salience to something I’m into. Also, you can’t discount the food.”

The faculty speaker can bounce his or her ideas off students, who always have a lot of questions to ask at the end. Lee Fennell alluded to this with humor in her recent CBI speech.

“There’s a lot of pressure giving a talk called Chicago’s Best Ideas, but I think the idea is that you guys help generate those best ideas,” she said, eliciting appreciative laughter.

The Law School hosts about 9 CBIs in a typical school year. So far, this has been a busy fall, with four talks delivered already:

Saul Levmore, William B. Graham Distinguished Service Professor of Law
Intermediation and Intervention, October 9

Levmore talked about the costs and benefits of resolving disputes in three ways: confrontation, intervention, and intermediation. Levmore suggested that we rely heavily on intervention (the legal system) and intermediation (whether through law or contract, as when a landlord essentially solves disputes among tenants) but avoid personal "confrontation" even though this may be efficient. Thus, most of us avoid confronting our neighbors about noise levels or other nuisances because it is socially uncomfortable. Instead, we rely on landlords, law enforcement, and the law itself to resolve disputes.

“In avoiding these confrontation costs…we are externalizing these costs onto the intermediary or the court system,” Levmore said.

When deciding how to handle a conflict, Levmore suggests the parties should take into account, or should be forced to internalize, the costs of each of the three methods. We need a social norm that takes these respective costs into account, because the law does not do that, he added.

“You should lose in a legal intervention if a direct confrontation would have been a cheaper way to solve the problem.” The social norms discouraging direct confrontation help us understand “why the government is likely to be much too big,” Levmore added, because we rely on government to intervene in conflicts we likely could solve ourselves. He then went on to expand the argument to “conflicts with ourselves,” such as the fights against obesity, smoking, and dangerous driving. In these examples there are costs of self-confrontation, but these might be lower than those associated with the government's efforts in solving these problems. Individuals might favor intervention because they do not absorb the full costs of the government's taking over the problem.

Alison LaCroix, Professor of Law
The Lost History of the Spending Power, October 24

LaCroix talked about the health care case and how it put new focus on Congress’s power to tax and spend. The case posed the question of what Congress could compel the states to do; namely, could Congress threaten the states with the loss of existing funding if they did not expand Medicaid? The Supreme Court said no, even while upholding the individual mandate for health insurance under the taxing power. This limitation of congressional power is a departure from other recent cases in which the Supreme Court allowed such “threats.” Congress still can, it appears, take away the prospect of new funding if states don’t comply with their mandates.

LaCroix contrasted today’s situation with a historical account of the early 19th century, when the second generation of founding fathers struggled with an array of questions regarding congressional power. Presidents from James Madison to James K. Polk clashed with Congress and the states over Congress’s authority to oversee “internal improvements” projects such as canals, roads, and railroads. Madison, in particular, did not approve of Congress’s power extending too broadly. The question, LaCroix explained, was, “What can Congress do in the name of the states?” rather than the modern question of what Congress can compel the states to do.

LaCroix pointed out that the structural and textual elements that Madison, Andrew Jackson, and others worried about in the early 19th century are still with us today, but in different forms. They weren’t worried about Congress commandeering the states or using the spending power to coerce the states in the way that several of the current justices on the Supreme Court seem to be. Their sense of the constitutional landscape was different, she said, which means their array of possible “fixes” were different, even though they were looking at the same text that we have today.

Laura Weinrib, Assistant Professor of Law
Free Speech When Constitutionalism was Unpopular, November 7

Weinrib offered a historical analysis of how advocacy by the American Bar Association during the 1930s helped shape the notion of free speech we have today, as a judicially enforceable right held by citizens against the state.

Before World War I, Weinrib explained, free speech claims rarely succeeded in the courts. Even Progressives, who advocated free speech as a policy goal, were hostile to the judicial enforcement of the First Amendment. Suppression of dissent was standard.

The typical view of this time period is that the suppression of free speech was so severe during World War I and the subsequent Red Scare that people woke up to its importance. According to Weinrib, that’s overstated. It wasn’t until 1937 that a diverse group of conservative and liberal organizations, including the American Bar Association (ABA), the Department of Justice, and the American Liberty League, in addition to the ACLU and its labor allies, rallied around free speech.

What helped bring conservatives, such as the ABA, to the cause of civil liberties was Franklin Delano Roosevelt’s “court-packing plan,” which would have allowed him to increase the size of the Supreme Court and appoint new justices who were favorable to New Deal programs. The ABA was one of the staunch opponents of the plan and was determined to secure its defeat and restore popular faith in the federal courts.

The solution, Weinrib said, was to embrace the cause of judicial protection for free speech. When free speech was associated with the Left, First Amendment claims rarely succeeded, but the coalition of liberal and conservative groups working together helped sway the Supreme Court in future cases.

Lee Fennell, Max Pam Professor of Law and Herbert and Marjorie Fried Research Scholar
Property in Housing, November 13

Fennell talked about the question of how to structure and package the residential experience, taking into account legal constraints and social norms of housing.

She started by discussing what housing provides for people, from shelter, privacy, and storage to production space for goods and services such as meals and laundry. The law gets involved to control many aspects of housing, from space and quality to risk and returns, and to manage the interface between individual households and the rest of the community, Fennell said. Households make choices on what services to have inside the household and which to keep outside – everything from entertainment and childcare to food-growing and even, in some cases, bathing. A “theory of the home” would examine the tradeoffs involved in making these choices.

She posed several questions related to what we will allow in society and what we won’t. For example, how narrow or small can a dwelling be? (She showed a photograph of a newly designed parking-space-sized apartment as an illustration.) How permanent should your connection to your home be? What about new models of tent-like “mobile” homes, which you can pick up and put down in various places? Are these nontraditional ideas problematic and worthy of legal restrictions or do they give people options?

She also talked about some of the ways people attempt to deal with the inflexibility of housing, such as online services that let you sleep on strangers’ couches or offer up your extra green space for someone else to grow food or plants.

Fennell encouraged the examination of gaps in our current model of housing. For example: Why is there no option between leasing and permanent ownership? Or between shelters for the poor and housing that barely meets legal standards? She encouraged further legal thought into these real-world questions.

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Winter quarter’s CBIs kick off on January 30 with David Strauss, Gerald Ratner Distinguished Service Professor of Law.

Faculty: 
Saul Levmore
Faculty: 
Alison LaCroix
Faculty: 
Laura Weinrib
Faculty: 
Lee Fennell