The University of Chicago Law School Faculty Podcast

Regulation can be a significant barrier to innovation, protecting incumbents and making it harder to bring new goods and services to market. Determining the appropriate regulation is all the more difficult when accelerating technology is creating many new opportunities as well as potential dangers. Can the administrative state itself innovate to promote beneficial innovation? Topics to be considered here will be the nature and scope of cost-benefit analysis, the use of experiments to guide regulation and prizes as an alternative to top-down regulation.

Prof. William Baude, University of Chicago Law School

Mr. Jon Dudas, Senior Associate to the President, University of Arizona and former Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office

Mr. Steve Lehotsky, Deputy Chief Counsel for Litigation, U.S. Chamber Litigation Center

Prof. Jennifer Nou, University of Chicago Law School

Moderator: Hon. Stephen Markman, Michigan Supreme Court

This program was presented on February 20, 2015, as part of the 2015 Federalist Society National Student Symposium.

The Supreme Court's federalism battleground has recently shifted from the Commerce Clause to two textually marginal but substantively important domains: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. For nearly a decade, these quieter, more structurally ambiguous federal powers – the “shadow powers” – have steadily increased in prominence. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. The invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving baseline of a narrow commerce power. This maneuvering might be productive if it were carried out explicitly, with some discussion by the Court of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center. But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map.

Alison LaCroix is Professor of Law and Ludwig and Hilde Wolf Teaching Scholar at the Law School. She is also an associate member of the University of Chicago Department of History. LaCroix received her BA summa cum laude in history from Yale University in 1996 and her JD from Yale Law School in 1999. She received her PhD in history from Harvard University in 2007 after earning an AM in history from Harvard in 2003. While in law school, LaCroix served as essays editor of the Yale Law Journal and managing editor of the Yale Journal of Law & the Humanities. From 1999 to 2001, she practiced in the litigation department at Debevoise & Plimpton in New York. Before joining the Law School faculty in 2006, she was a Samuel I. Golieb Fellow in Legal History at New York University School of Law.

This talk was recorded on January 28, 2015, as part of the Chicago’s Best Ideas lecture series.

Access Justice laws give people equal opportunity to enjoy primary goods, ensuring that access to these goods is not allocated by markets and is not tilted in favor of wealth and privilege. But Access Justice often fails to meet its egalitarian aspirations, because access and its benefits are deployed disproportionately by elites, yet paid for directly by public budgets and indirectly by weaker groups. In this lecture, Professor Ben-Shahar explains why Access Justice law can unintentionally hurt weak groups in a variety of areas — access to courts, information, insurance, internet, and many more.

Omri Ben-Shahar earned his PhD in Economics and SJD from Harvard in 1995 and his BA and LLB from the Hebrew University in 1990. Before coming to Chicago, he was the Kirkland & Ellis Professor of Law and Economics at the University of Michigan. Prior to that, he taught at Tel-Aviv University, was a member of Israel's Antitrust Court and clerked at the Supreme Court of Israel. He teaches contracts, sales, insurance Law, consumer law, e-commerce, food and drug law, law and economics, and game theory and the law. He writes in the fields of contract law and consumer protection. He is the co-author of More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton 2014). Ben-Shahar is the Kearny Director of the Coase-Sandor Institute for Law and Economics, and the Editor of the Journal of Legal Studies. He is also the Co-Reporter with Oren Bar-Gill for the Restatement Third of Consumer Contracts.

This lecture was recorded on March 3, 2015, as part of the Chicago's Best Ideas lecture series.

At her confirmation hearing, Supreme Court Justice Elena Kagan said that "we are all originalists." Is that true, and what would it mean for it to be true? In Is Originalism Our Law?, I argue that there is an important sense in which Justice Kagan was right. And if originalism is our law, it provides a new and better explanation for why judges today are bound to follow the decisions of the framers.

William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. His current research projects include papers on originalism, historical practice in constitutional law, federalism, the Supreme Court, and conflicts of law. His recent publications include "Rethinking the Federal Eminent Domain Power," and "Beyond DOMA: State Choice of Law in Federal Statutes." He also contributes to two legal blogs, the Volokh Conspiracy and SCOTUSBlog.

This lecture was recorded on February 13, 2015, at the University of Chicago Law School.

This panel was moderated by Professor Siegler and included Deputy Dean Ginsburg and Professors Huq, McAdams, and Randolph Stone.

The event took place on February 4, 2015. It was presented by BLSA in partnership with the Law School and cosponsored by ACS, APALSA, Criminal Law Society, Defenders, Human Rights Law Society, LLSA, LSRJ, LWC, PILS, and SALSA.

In a conversation with David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, US Supreme Court Justice Elena Kagan reflects on decision-making, persuasion, and hunting with Scalia.

This event took place on February 2, 2015, at the University of Chicago Law School.

A panel discussion with John Relman, Jeff Leslie, Lee Fennell, and Tara Ramchandani

As part of the Law School's Diversity Month, the panelists discuss the pending Supreme Court Case, "Texas Department of Housing and Community Affairs v. The Inclusive Communities Project."

Presented on January 21, 2015, by ACS, ACLU, BLSA and APALSA with the Kreisman Initiative on Housing Law and Policy.

Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School

with comments by Martha Nussbaum, Aziz Huq, and Michael Schill

What role if any should forgiveness play in law and legal systems? By forgiveness, I mean: a conscious, deliberate decision to forgo rightful grounds for whoever has committed a wrong or harm. Law may penalize those who apologize and in so doing make forgiveness by the victim less likely. Law may construct adversarial processes that render forgiveness less likely than it would otherwise be. Or law can give people chances to meet together, in spaces where they may apologize and forgive.

This lecture was presented on January 8, 2015, at the University of Chicago Law School as part of the Brennan Center Jorde Symposium.

Although people sometimes violate the law, there is more legal compliance than we can explain by ordinary economic theory – that legal sanctions deter noncompliance. In some domains of international law and constitutional law, there is no credible threat of legal sanctions, yet there is compliance. In some historic examples, “courts” lacking any sanctioning power resolved disputes arising in medieval Iceland, among 18th century pirates, and among 19th century gold-rushers. Professor McAdams explains these and other historic and contemporary examples of compliance by focusing attention on law’s expressive power. First, legal expression provides a salient means of coordinating behavior. Second, law reveals information about risks and attitudes. These two expressive powers are distinct from law’s coercive power.

Richard H. McAdams is Bernard D. Meltzer Professor of Law and Aaron Director Research Scholar at the University of Chicago Law School. This talk was recorded on January 6, 2015, as part of the Chicago's Best Ideas lecture series.

How Should We Interpret our Constitutions?

A Debate between Professors Baude and Harel

Moderated by Professor McAdams

William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. His current research projects include papers on originalism, historical practice in constitutional law, federalism, the Supreme Court, and conflicts of law. His recent publications include "Rethinking the Federal Eminent Domain Power," and "Beyond DOMA: State Choice of Law in Federal Statutes." He also contributes to two legal blogs, the Volokh Conspiracy and SCOTUSBlog.

Alon Harel is Mizock Professor of Law at the Hebrew University of Jerusalem. He is the author of Why Law Matters (2014) where he argues that (some) legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. His areas of expertise include legal and political theory, criminal law theory, constitutional law theory, human rights, and law and economics.

Richard H. McAdams is the Bernard D. Meltzer Professor of Law and Aaron Director Research Scholar. He writes on criminal law and procedure, social norms, the expressive function of law, inequality, and law and literature. He is co-editor of the 2013 volume on Fairness in Law and Economics and the author of the forthcoming book, The Expressive Powers of Law. He has served as a member of the National Science Foundation Advisory Panel for Law & Social Sciences, the editorial board of the Annual Review of Law and Social Science, and the Board of Directors of the American Law and Economics Association.

This event was sponsored by the American Constitution Society and the Federalist Society and was recorded on November 25, 2014.