Chicago Kent College of Law

Amartya Sen has made a major contribution to the theory of social justice, and of gender justice, by arguing that capabilities are the relevant space of comparison when justice-related issues are considered. This article supports Sen's idea, arguing that capabilities supply guidance superior to that of utility and resources (the view's familiar opponents), but also to that of the social contract tradition, and at least some accounts of human rights. But I argue that capabilities can help us to construct a normative conception of social justice, with critical potential for gender issues, only if we specify a definite set of capabilities as the most important ones to protect. Sen's "perspective of freedom" is too vague. Some freedoms limit others; some freedoms are important, some trivial, some good, and some positively bad. Before the approach can offer a valuable normative gender perspective, we must make commitments about substance.

The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.

A major challenge to social theory is to explain the pattern of government intervention in the market - what we may call regulation. Properly defined, the term refers to taxes and subsidies of all sorts as well as to explicit legislative and administrative controls over rates, entry, and other facets of economic activity. Two main theories of economic regulation have been proposed. One is the theory, bequeathed by a previous generation of economists to the present generation of lawyers. This theory holds that regulation is supplied in response to the demand of the public for the correction of inefficient or inequitable market practices. It has a number of deficiencies that we shall discuss. The second theory is the theory - a poor term but one that will do for now. Espoused by an odd mixture of welfare state liberals, Marxists, and free-market economists, this theory holds that regulation is supplied in response to the demands of interest groups struggling among themselves to maximize the incomes of their members. There are crucial differences among the capture theorists. I will argue that the economists' version of the theory is the most promising but shall also point out the significant weaknesses in both the theory and the empirical research that is alleged to support it.

Using cross‐sectional time‐series data for U.S. counties from 1977 to 1992, we find that allowing citizens to carry concealed weapons deters violent crimes, without increasing accidental deaths. If those states without right‐to‐carry concealed gun provisions had adopted them in 1992, county‐ and state‐level data indicate that approximately 1,500 murders would have been avoided yearly. Similarly, we predict that rapes would have declined by over 4,000, robbery by over 11,000, and aggravated assaults by over 60,000. We also find criminals substituting into property crimes involving stealth, where the probability of contact between the criminal and the victim is minimal. Further, higher arrest and conviction rates consistently reduce crime. The estimated annual gain from all remaining states adopting these laws was at least $5.74 billion in 1992. The annual social benefit from an additional concealed handgun permit is as high as $5,000.

We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.

This paper argues that key differences between the UK and the US in the importance ascribed to a company's social responsibilities (CSR) reflect differences in the corporate governance arrangements in these two countries. Specifically, we analyse the role of a salient type of owner in the UK and the US, institutional investors, in emphasising firm-level CSR actions. We explore differences between institutional investors in the UK and the US concerning CSR, and draw on a model of instrumental, relational and moral motives to explore why institutional investors in the UK are becoming concerned with firms’ social and environmental actions. We conclude with some suggestions for future research in this area.

In this Article, Professor Sunstein describes those aspects of republicanism that have the strongest claim to contemporary support, outlines the role of republican thought in the founding period, and explores some of the implications of republicanism for modern public law. Sunstein claims that the basic republican commitments involve (1) deliberation in government; (2) political equality; (3) universality, or agreement as a regulative ideal; and (4) citizenship. Professor Sunstein contends that all of these commitments played an important role during the founding period, generating a distinctive conception of governance. In his view, the common opposition between liberalism and republicanism is a false one; the founders were liberal republicans-a position that, Sunstein argues, is superior to its principal competitors. Sunstein claims that republican ideas suggest reformation of a number of current areas of modern public law, encompassing such contexts as statutory construction, campaign finance regulation, federalism, and discrimination. Professor Sunstein concludes with a discussion of recent proposals for group or proportional representation, arguing that such proposals can be supported by reference to the republican belief in deliberative democracy.

Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time-evolving random forest classifier that leverages unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.

In their 1984 article, Priest and Klein show that a simple divergent expectations model of the decision to litigate leads to a plaintiff success rate at trial that approaches 50 percent as the fraction of cases going to trial approaches zero. However, an extensive empirical literature has documented that plaintiffs win far fewer than half of their cases. As Priest and Klein observe, this conflict between the predictions of the model and the empirical literature may be attributable to violations in the data of the assumptions behind the simple model. Based on data from 3,529 cases, we find that "multimodal" case characteristics associated with violations of these assumptions cause plaintiff win rates to deviate from the 50-percent baseline in the manner that simple law-and-economics models would suggest. In other words, among cases that conform more closely to the assumptions underlying the simple divergent expectations model, the plaintiff win rate is closer to 50 percent.

Any defense of universal norms involves drawing distinctions among the many things people actually desire. If it is to have any content at all, it will say that some objects of desire are more central than others for political purposes, more indispensable to a human being's quality of life. Any wise such approach will go even further, holding that some existing preferences are actually bad bases for social policy. The list of Central Human Capabilities that forms the core of my political project contains many functions that many people over the ages have preferred not to grant to women, either not at all, or not on a basis of equality. To insist on their centrality is thus to go against preferences that have considerable depth and breadth in traditions of male power. Moreover, the list contains many items that women over the ages have not wanted for themselves, and some that even today many women do not pursue – so in putting the list at the center of a normative political project aimed at providing the philosophical underpinning for basic political principles, we are going against not just other people's preferences about women, but, more controversially, against many preferences (or so it seems) of women about themselves and their lives. To some extent, my approach, like Sen's, avoids these problems of paternalism by insisting that the political goal is capability, not actual functioning, and by dwelling on the central importance of choice as a good. But the notion of choice and practical reason used in the list is a normative notion, emphasizing the critical activity of reason in a way that does not reflect the actual use of reason in many lives.

This article uses citations to the published opinions of judges on the federal courts of appeals who had six or more years tenure at the end of 1995 to estimate empirically the influence of individual judges. We rank judges on the basis of both total influence (citations adjusted for judicial tenure and other variables) and average influence (citations per published opinion). We also analyze the effects of factors that may be relevant to explaining differences in the influence of individual judges. These factors include both characteristics of the judges (for example, quality of law school, law school performance, sex, race, prior experience, political affiliation) and characteristics of the circuit in which they sit (such as the mix of cases in the circuit). In an appendix, we use citations to the published opinions in each circuit rather than to individual judges to measure the influence of circuits rather than individual judges. Copyright 1998 by the University of Chicago.

Yan Bai, MD; Lingsheng Yao, MD; Tao Wei, MD; Fei Tian, MD; Dong-Yan Jin, PhD; Lijuan Chen, PhD; Meiyun Wang, MD, PhD

This study considers the circumstances under which members of the Muslim American community voluntarily cooperate with police efforts to combat terrorism. Cooperation is defined to include both a general receptivity toward helping the police in antiterror work and the specific willingness to alert police to terror-related risks in a community. We compare two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, in the context of antiterror policing and specifically among members of the Muslim American community. The first is instrumental. It suggests that people cooperate because they see tangible benefits that outweigh any costs. The second perspective is normative. It posits that people respond to their belief that police are a legitimate authority. On this view we link legitimacy to the fairness and procedural justice of police behavior. Data from a study involving interviews with Muslim Americans in New York City between March and June 2009 strongly support the normative model by finding that the procedural justice of police activities is the primary factor shaping legitimacy and cooperation with the police.

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications and both are amenable to straightforward social scientific analysis. This article surveys the relevant research on constitution-making, describes the conceptual issues involved in understanding constitution-making, reviews the various claims regarding variation in constitution-making processes, and presents a set of baseline empirical results from a new set of data on the content and process of constitution-making.

Abstract The issue of tax‐motivated income shifting within multinational firms – or ‘base erosion and profit shifting’ (BEPS) – has attracted increasing global attention in recent years. This paper provides a survey of the empirical literature on this topic. Its emphasis is on reviewing and elucidating what is known about the magnitude of BEPS. The paper discusses different empirical approaches to identifying income shifting, describes existing data sources, and summarises the findings of the empirical literature. A major theme that emerges from this survey is that in the more recent empirical literature, which uses new and richer sources of data, the estimated magnitude of BEPS is typically much smaller than that found in earlier studies. The paper seeks to provide a framework within which to conceptualise this magnitude and its implications for policy. It concludes by highlighting the importance of existing legal and economic frictions as constraints on BEPS and by discussing possible ways in which future research might model these frictions more precisely.

Despite the practical importance of trade secrets to the business community, the law of trade secrets is a neglected orphan in economic analysis. This paper sketches an approach to the economics of trade secret law that connects it more closely both to other areas of intellectual property and to broader issues in the positive economic theory of the common law.

The accelerated pace of gene discovery and molecular medicine portend a future in which information about a plethora of disease genes can be readily obtained. As at-risk populations are identified, research can be done to determine effective prevention and treatment strategies that will lower the personal, social and perhaps the financial costs of disease in the future. We all carry genes that predispose to common illnesses. In many circumstances knowing this information can be beneficial, as it allows individualized strategies to be designed to reduce the risk of illness. But, as knowledge about the genetic basis of common disorders grows, so does the potential for discrimination in health insurance coverage for an ever increasing number of Americans.

In this paper Judge Posner addresses the application of the antitrust laws to computer software and related "new economy" industries. He argues that antitrust doctrine is sufficiently supple to cope adequately with the legal and economic issues of antitrust policy presented by these industries but that the institutional framework of antitrust is inadequate; antitrust cases move too slowly and the antitrust community lacks the necessary technical expertise. He proposes several partial solutions to these problems.

This paper examines and rejects the commonplace view that the doctrines of classical contract law (offer and acceptance, consideration, damages) were logically linked to the political philosophy of laissez-faire. Many writers (Grant Gilmore, Patrick Atiyah, Lawrence Friedman) attribute much of the rigid and mechanical nature of nineteenth century contract law to its affinity with laissez-faire. In this paper I reject that connection. The key distinction is that between security of exchange and freedom of contract. Laissez-faire is strongly committed to both, but most of contract law only requires the former without the latter. Security of exchange ensures that the enforcement of legal contracts when, as commonly is the case, one party must perform before the other. Freedom of contract guarantees a broad sphere in which voluntary arrangements are permissible. Most contract law is devoted to the former, which can be supported even by those who favor extensive regulation of economic transactions. The strength or weakness of that law is largely determined by instrumental questions of whether they promote stable contracting over time.

Law and economics has failed to produce plausible descriptive theories of contract doctrines. This paper documents these failures and suggests that they are due to a methodological problem involving the concept of transaction costs. If transaction costs refer to writing or information costs, then rational individuals would agree to complex contracts that are not in fact observed, and contract law would, for the most part, have no other function than that of specifically enforcing contracts. If transaction costs refer to limits on foreseeability and other cognitive restrictions, then law and economics assumes implausibly both that people are rational enough to allow legal rules to influence their investment and breach decisions, but not rational enough to allow legal rules to influence contractual design. Implications for normative analysis are discussed, and non-economic approaches to contract law are surveyed and criticized.