The University of Chicago Law Review

Getting Substantive: A Response to Posner and Vermeule

Charles L. Barzun

The intellectual historian Professor J.G.A. Pocock once lamented that arguments about scholarly methodology often amounted to little more than telling one’s colleagues, “you should not be doing your job; you should be doing mine.” In their article, Inside or Outside the System?, Professors Eric Posner and Adrian Vermeule at first seem to escape this charge. Their point is not that you should be doing their job instead of yours; rather, you should just pick a job and do it consistently. Specifically, they argue that a good deal of legal scholarship is premised on inconsistent assumptions about what motivates governmental officials. The targets of their critique are scholars who first adopt the “external” perspective of political scientists by assuming that government officials act rationally so as to maximize their own self-interest, and then offer as a solution to the problem created by such self-interested behavior—now from the “internal” perspective of a normative legal scholar speaking to judges—a remedy whose implementation depends on governmental officials (typically judges) acting in the public’s interest rather than their own. According to the Authors, this attempt to adopt two inconsistent perspectives simultaneously results in “methodological schizophrenia.”

The Authors put their finger on a tension that arises when legal scholars make use of political science literature that is based on assumptions about what motivates official behavior, assumptions that seem at odds with those on which the offer of policy or legal advice is premised. But whether the Authors’ critique escapes Professor Pocock’s charge is not so clear. . . .

80 U Chi L Rev Dialogue 267 [Essay PDF]

Featured Print Articles

Volume 80, Issue 4 (more)

Bankruptcy Law as a Liquidity Provider

Article by Kenneth Ayotte & David A. Skeel Jr

Since the outset of the recent financial crisis, liquidity problems have been cited as the cause behind the bankruptcies and near bankruptcies of numerous firms, ranging from Bear Stearns and Lehman Brothers in 2008 to Kodak more recently. This Article expands the prevailing normative theory of corporate bankruptcy—the Creditors’ Bargain theory—to include a role for bankruptcy as a provider of liquidity. The Creditors’ Bargain theory argues that bankruptcy law should be limited to solving problems caused by multiple, uncoordinated creditors, but focuses almost exclusively on the problem of creditor runs. We argue that two well-known problems that cause illiquidity—debt overhang and adverse selection—are also caused by multiple-creditor-coordination problems. As such, bankruptcy law is justified in solving these problems in addition to creditor-run problems.

With this insight in hand, we argue that many of bankruptcy’s existing rules, including debtor-in-possession financing, sales free and clear of liens, and coerced loans, can be seen as liquidity-providing rules that target either debt-overhang problems, adverse-selection problems, or both. Using bankruptcy to solve liquidity problems can create costs, however, such as the risk of continuation bias. We suggest rules of thumb for judges to use in balancing the benefits and costs of these rules. We also connect our theory to the use of bankruptcy for financial institutions, where liquidity concerns loom large.

80 U Chi L Rev 1557 [Article PDF]

Impeaching Precedent

Article by Charles L. Barzun

This Article is about the nature and scope of legal argument. It considers the question of whether a court, when determining the precedential weight of one of its prior decisions, should consider historical evidence indicating that the decision was decided on the basis of improper motivations or as the result of political pressure. In a common law system in which courts pervasively rely on precedents as a source of law, that question is of obvious practical and theoretical importance. Yet courts and scholars have hardly even raised the question, let alone provided a satisfactory answer to it. Instead, they have assumed that such explanations are historical, not legal arguments—the kind of thing appropriate for law reviews, but not for courts of law.

This Article directly challenges that assumption. Drawing on a few rare examples when justices of the Supreme Court, or lawyers arguing before them, have sought to undermine court precedents by showing them to have been based on “extralegal” considerations, I argue that such efforts to historicize or—to use the term I prefer—impeach past decisions are a legitimate and potentially useful means of evaluating a decision’s precedential weight. Although various policy justifications may support excluding such arguments from judicial debate, I consider several such objections and explain why none is particularly persuasive. If the argument presented is sound, then not only should courts be more receptive to impeaching arguments, but—at least in the realm of constitutional law—both courts and scholars should perhaps broaden their understanding of how constitutional history bears on constitutional theory.

80 U Chi L Rev 1625 [Article PDF]

Copyright in Teams

Article by Anthony J. Casey & Andres Sawicki

Dozens of people worked together to produce Casablanca. But a single person working alone wrote The Sound and the Fury. While almost all films are produced by large collaborations, no great novel ever resulted from the work of a team. Why does the frequency and success of collaborative creative production vary across art forms?

The answer lies in significant part at the intersection of intellectual property law and the theory of the firm. Existing analyses in this area often focus on patent law and look almost exclusively to a property-rights theory of the firm. The implications of organizational theory for collaborative creativity and its intersection with copyright law have been less examined. To fill this gap, we look to team production and moral-hazard theories to understand how copyright law can facilitate or impede collaborative creative production. While existing legal theories look only at how creative goods are integrated with complementary assets, we explore how the creative goods themselves are produced. This analysis sheds new light on poorly understood features of copyright law, including the derivative-works right, the ownership structure of a joint work, and the work-made-for-hire doctrine.

80 U Chi L Rev 1683 [Article PDF]

Inside or Outside the System?

Article by Eric A. Posner & Adrian Vermeule

In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics, or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.

80 U Chi L Rev 1743 [Article PDF]

Photograph courtesy of the University of Chicago Law School

Judge Robert H. Bork and Constitutional Change: An Essay on Ollman v Evans

Steven Calabresi & Lauren Pope

Tel-Oren, Filartiga, and the Meaning of the Alien Tort Statute

Bradford R. Clark

Jersey Central Power & Light Co v Federal Energy Regulatory Commission: Robert Bork on Public Utility Rate Regulation—and Lochner v New York

Richard A. Epstein

Robert Bork, Judicial Creativity, and Judicial Subjectivity

John Harrison

Inkblot: The Ninth Amendment as Textual Justification for Judicial Enforcement of the Right to Privacy

Kurt T. Lash

Robert Bork: Intellectual Leader of the Legal Right

John O. McGinnis

The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy

Ilya Somin

Taming Judicial Activism: Judge Robert Bork’s Coercing Virtue

John Yoo