• Faculty Commentary

    Commentary on scholarship, current events, and other news by Chicago-Kent faculty.

    The Behavioral Economics of Gift-giving, or How to Increase Net Social Welfare this Holiday Season

    by  • December 14, 2009 • Faculty Commentary • 2 Comments

    By Christopher Buccafusco

    smiley face Economist Joel Waldfogel has posted an interesting piece on Slate discussing the economic irrationality of gift-giving.  In summary (and not attempting to do the argument justice), Waldfogel argues that the $50 someone might spend on a sweater for you would be better spent on themselves, because gift-givers have limited knowledge about others’ preferences.  Between the giver and the receiver, the receiver is in a much better position to know what she wants and will enjoy.  He bases this conclusion on surveys that he has analyzed showing that people normally value the things they buy for themselves at or above what they pay for them, but they value the gifts they receive substantially less than was paid for them.  Thus, rather than giving your mother a gift this year (and certainly instead of a donation to the Human Fund), you should give her a card noting that you have spent the money on yourself instead because doing so increases net social welfare (NB Waldfogel doesn’t suggest this.  He recommends cash, gift cards, or donations).

    A couple of thoughts about Waldfogel’s insight.  First, the gift valuation discrepancy that Waldfogel detects may have relatively little to do with preference satisfaction and a lot more to do with quasi-rational psychological phenomena.  Considerable research suggests that people are often poor predictors of their own hedonic experiences, leading them to make choices that don’t in fact make them as happy as they thought (e.g., the sweater I’m wearing today.  I thought I would like it more than I do).  Additionally, other similarly situated people often provide a very good gauge of how well you are going to like something, even if they seem to be quite different from you.  While grandma’s choice of tie might not be a winner, a colleague’s wine, music, or book selection might be very successful (a point Waldfogel acknowledges).  And perhaps most importantly, there is good reason to think that the added value people ascribe to the things they purchase is the result of some combination of ownership effects and dissonance reduction.  People might (subconsciously) say to themselves, “I picked out that sweater.  I like myself an awful lot.  Therefore, I must like that sweater an awful lot, too.”  Moreover, having spent $50 on the sweater, they are motivated by a desire to reduce cognitive dissonance and claim that they do in fact value it that much, even if they would never pay that much for it again.

    Second, I want to suggest that everyone think about how to give happiness-maximizing, non-adaptable gifts for the holidays this year.  So many of the things that we give and receive provide only transient joy – perhaps a little fun and surprise when unwrapping the gift, and then some rapidly decreasing enjoyment over the next several days and weeks.  I don’t have kids, but I’d guess that the moment-by-moment happiness that children experience in the days after Christmas returns to pre-holiday levels pretty rapidly.  Having spent hundreds of dollars on your children, are they any happier on January 20th than they were on December 20th?  If not, what kinds of gifts can we give to others that will provide them with longer-lasting pleasure?  I imagine that these answers might be somewhat idiosyncratic.  I, for example, enjoy receiving cellar-worthy bottles of wine.  I feel like I get extended pleasure from thinking about drinking the wine for years, finally drinking the wine with the person who gave it to me, and then remembering drinking the wine in the following years.  Perhaps the least idiosyncratic answer is that we should give the gifts of fellowship, and society.  Spending time with family and friends in social settings receives among the highest happiness ratings, and overall social time is highly predictive of general life satisfaction.  So forget the fancy gifts and must-have toys.  Spend your holiday time with the people you care about.

    Do you have other suggestions for non-adaptable holiday gifts?

    Copyrights, Contracts, and E-Books

    by  • December 12, 2009 • Faculty Commentary • 0 Comments

    By Christopher Buccafusco

    The NY Times has just published a story on the renewed controversy concerning publication rights in electronic versions of books originally published in the days before digital book readers.  Copyright students will recall the lawsuit from 2002 pitting dead-tree-book publishers like Random House against digital publishers like RosettaBooks.  They will also recall that these cases tend to be resolved according to contractual interpretation (i.e., did the original licensing agreement include new media or not?) rather than copyright doctrine.  I guess with the exploding success of Kindle, &c. the publishers have decided that the issue is worth re-litigating.

    Are there important social, cultural, or economic implications of these suits or is does it just come down to who gets paid for already-created works?  Should one party be made to bear the risk of not specifically including or excluding new technologies from licensing?  Could the law assign the rights to unforeseeable media to one party or the other to reduce transaction costs?

    “You’re So Vain”: I Bet You Think Suit is About You

    by  • December 4, 2009 • Faculty Commentary • 1 Comment

    By Christopher Buccafusco

    Carly Simon’s 1972 song “You’re So Vain” was a #1 hit and ranked 72nd on Billboard’s list of the greatest songs of all-time.  But was it also defamation?
    Let’s assume for purposes of this post, that the reference to spending time with “the wife of a close friend” is defamatory and untruthful.  Also, let’s ignore various constitutional issues about malice, public figures, and damages.  All of these are big assumptions, but, hey, it’s a blog post.

    The key issue then becomes whether a plaintiff could establish that the song was “of and concerning” him.  Over the years, a number of men have been suggested as the song’s object, including Warren Beatty, James Taylor, and Mick Jagger.  Simon has avoided identifying the song’s subject, saying that he is a composite of three different men.  Apparently, however, she has at least told NBC President Dick Ebersol, who paid $50,000 in an auction for the right to learn.

    Could any or all of these men successfully claim that the song was of and concerning them?  Could Ebersol be compelled to testify?  And, could Simon defend herself because, after all, the song isn’t really about whomever it is supposedly about?  Of course, anyone who did bring suit would only be confirming Simon’s initial observation of his vanity.

    With assistance from 1L GSOT Daniel Taylor.

    Perritt on Kurdistan’s strategic future

    by  • November 2, 2009 • Faculty Commentary • 5 Comments

    By Henry H. Perritt, Jr.

    In evaluating ways to clean up the mess that the Bush Administration made in Iraq, too little attention has been paid to the strategic options presented by the Kurds, who comprise about 25 % of Iraq’s population and now control 10-20 % of its territory under the umbrella of the Kurdistan Regional Government (hereinafter “Kurdistan” or “KRG”).

    I was in Kurdistan last week. Its second city, Sulamaniyah, is crowded with traffic, and construction cranes dot the skyline. Civilians rush about, patronizing high-end clothing stores as well as traditional markets. The atmosphere is calm, with few worries about security. Not a single American soldier or marine has been killed, wounded or kidnapped in Kurdistan since the invasion of 2003. Unlike in southern Iraq, Americans are popular.

    KRG is guaranteed political autonomy by the Iraqi constitution. The Kurds intend to hold on to the autonomy and, if possible, to expand it, hoping to extend the geographic reach of KRG to the oil-rich governorate of Kirkuk. With the revenue from Kirkuk’s energy resources, protection from KRG’s Peshmerga–militia forces estimated to number anywhere from 100,000 to 250,000, and a modicum of support from U.S. forces, the Kurds are well-positioned to play a crucial role in the reshaping of the Middle East.

    Five scenarios can be envisioned. The first is least likely: a genuinely unified and democratic Iraq.


    Birdthistle on Jones v. Harris

    by  • October 31, 2009 • Faculty Commentary, Faculty in the News • 0 Comments

    Morningstar just uploaded a video of our very own Professor William Birdthistle and Professor John Coates of Harvard Law School debating the issues in Jones v. Harris, which will be argued on Monday in the Supreme Court. It’s currently at the top of their website.  Click here to view it.

    And continuing his run with the press, Professor Birdthistle was heard yesterday discussing the same case on NPR’s Markeplace. You can hear that interview here.

    Teaching Brown v. Board of Education

    by  • October 26, 2009 • Faculty Commentary • 0 Comments

    By Sheldon Nahmod [via Nahmod Law]


    Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.


    Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.

    Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.

    Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.

    In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally  began to dismantle.


    “An Unusually Good Eye for Talent”

    by  • October 20, 2009 • Faculty Commentary, Faculty in the News • 0 Comments

    By Sarah Harding

    Brian Leiter, in his infinite wisdom, has identified Chicago-Kent as one of the schools with an “unusually good eye for faculty talent.” See here. Leiter’s method for identifying these schools is the number of faculty who were snapped up by a “top 20ish law school.” Leiter identified some of the key individuals but to his list we should add Anita Bernstein (Emory – since moved on), Tim Holbrook (Emory), Claire Hill (Minnesota), and Peggie Smith (Iowa), not to mention the number of faculty who have turned down offers (e.g. Mark Rosen). Some schools might bemoan such a large number of departures but we here at Chicago-Kent are always delighted to celebrate the individual successes and career aspirations of our terrific scholars, not to mention we appreciate the goodwill these individuals spread to other institutions.   Thanks Brian.

    Let the Faculty Spin

    by  • October 15, 2009 • Faculty Commentary • 0 Comments

    By Sarah Harding

    I often wonder what it would be like to bisect the law school at a single moment in time–to peer into every classroom and to listen to every conversation, debate, and presentation in every corner of this dynamic community, all at the same time. It would be dizzying, to be sure, but also invigorating. The variety of inquiries, perspectives and styles would be downright thrilling.

    The C-K Faculty Blog can’t capture the rich diversity of intellectual endeavors in that single moment in time, but it can capture, open up and expand the rich intellectual life of this law school as it unfolds daily. This is a place where you will find summaries of our recent scholarship, thoughts and opinions about developments in the law and the legal system, descriptions of workshops from visiting faculty, discussions of our own internal workshop series, celebrations of our individual successes and really just about anything that has to do with the intellectual life of the Chicago-Kent faculty. Welcome and enjoy.

    (And plaudits for anyone who can identify the literary allusion in the title and first paragraph of this post.)