Go Configure by Lee Anne Fennell

In Slices and Lumps: Division and Aggregation in Law and Life, I argue that the future depends on configuration. Putting together resources and cooperation in the right combinations is essential to human flourishing in multiple domains: the environment, the city, the workplace, the market, and the home. It is also central to reaching collective and personal goals that require cobbling together money, time, effort, or other inputs into human well-being. Effective configuration (and reconfiguration) requires us to identify goods that, like bridges or habitats, are effective only in certain-sized lumps—as well as instances where lumpiness gets in the way and carving out thinner slices will allow more value to be wrested from a particular resource.

Addressing these wide-ranging and increasingly pressing problems of aggregation and division requires first solving a second-order configuration problem: putting together ideas and knowledge dispersed among many minds. An academic conference is a way of doing just that, as Omri Ben-Shahar observed in his introductory remarks at the conference that gave rise to this symposium. This conference and the resulting set of conversations and contributions comprise a lumpy good to which the participants have generously contributed slices of time, talent, and effort. The whole is much greater than the sum of its parts. In this introduction, I want to emphasize some of the larger themes of the conference as well as highlight (if briefly) the many individually interesting research threads that came out of the conference. It goes without saying that I cannot do justice to all of the fascinating and insightful work collected in this symposium.

Before beginning, I want to express my deep gratitude to everyone involved in bringing this conference to life and to amplifying its impact through this online symposium—Omri Ben-Shahar, Norma de Yagcier, Curtrice Scott, the Coase-Sandor Institute, the University of Chicago Law Review, our wonderful moderators, and the fourteen participants who have contributed the stellar set of essays collected here. These papers have catalyzed and renewed my thinking in unexpected ways, and are already serving as inputs for new writing projects. I also owe a great debt of thanks to the innumerable scholars I learned from, and whose ideas I built on, in putting together Slices and Lumps. The book aimed to assemble ideas about configuration problems drawn from a wide range of contexts, and I am delighted that that this lumping strategy helped to bring the conference participants into conversation with each other about configuration issues.

Configuration can be a stumbling block, a challenge, an opportunity, a source of power, or a threat—and the essays contained here represent all of these possibilities and more. The language of slicing and lumping is used in these pieces both to understand existing (and emerging) problems in a wide array of domains, and to propose new solutions to them.

One recurring theme is the possibility of smoothing or continuizing that which is lumpy (a concept previously explored by a number of scholars). Matthew Adler’s essay The Smooth Value of Lumpy Goods considers how discontinuous preferences might be properly valued in a social welfare function using the von Neuman-Morgenstern utility theory. People often have preferences not only for things that are perfectly divisible (like money), but also for those which are indivisible (such as children, or television shows that are only enjoyable in whole-episode units, to use two of Adler’s examples). Yet because even indivisible goods can be made continuous by dividing up the odds of receiving them—that is, they are continuous in “lottery space”—it remains possible to rank all sets of preferences on a smooth, continuous scale, even when lumpy goods are in play, as Adler explains. This, he correctly notes, is good news for someone like me who is obsessed with having lumpiness taken into account in policy contexts, because it offers a way to accommodate indivisible and divisible goods on a common metric.

In Slicing Defamation by Contract, Yonathan Arbel offers a fresh take on continuizing in the context of defamation law. He explains how the lumpy tort remedy of defamation, which has an all-or-nothing quality, can be effectively sliced up through contractual arrangements. Publishers could, for example, post a bond along with a story and offer it to anyone who is able to disprove the story’s claims. This approach would augment the legal binary with a scalar variable (the bond amount) that reflects a publisher’s degree of confidence in the material being published.

This idea of pairing a scalar variable with a legal binary recurs in Lauren Scholz’s contribution, Indivisibility in Technology Regulation. Here, the all-or-nothing nature of consent in technology privacy contexts can seem difficult to square with the need for regulatory precision and nuance. Yet as Scholz notes, binaries in law are often paired with scalar elements that can buffer the harshness of cliff effects—liability is binary, but damages are scalar; guilt is binary, but sentences are scalar. Even if consent seems destined to remain an all-or-nothing proposition, might it be possible to scale the consequences of consent in some way based on contextual features, whether by limiting the scope of the consent, the financial stakes involved, or the time period over which it remains effective?

Another recurring theme in these essays is the idea that indivisibilities can be functional. Although the urge to slice everything in every way can seem compelling, it can preclude important sources of value that depend on lumps and indivisibilities. Peter Siegelman’s analysis of insurance pools in Getting People to Lump or Split Themselves: Pooling vs Separation makes this point well: if everyone can separate out based on their own individual risk profiles, we lose the gains from pooling. His essay also shows how pooling can sometimes favor one group of interests (criminals, say, who would rather blend in with the rest of the population) where separation would be better for society. Yet our means of accomplishing the separation is often imperfect, as his priceless example of “ruse checkpoints” illustrates.

Brian Galle’s analysis in Paying with Lumps also shows lumps doing useful service. As he explains, instead of a fine-grained tax and subsidy strategy, the government can use lumps to enable cross-subsidies. For example, getting mail delivery out to the hinterlands is much more costly than moving it around within and between urban centers, but a monopoly over the entire system allows the low-cost city mailings to cover the more costly rural mailings, without the need to separately tax and subsidize. That the lump may help to hide distributive effects can be seen as either a feature or a bug, depending on one’s normative priors and empirical predictions about how people respond to different kinds of distributive policies. Another of Galle’s examples, the fusing of the market’s information-providing function with the distribution of surplus via the underlying transactions, queues up some of these distributive questions.

That lumps may be functional as well as problematic is also evident in Deepa Das Acevedo’s piece, Lumpy Work. Attempts to slice work into friendlier configurations can add flexibility, but can also unbundle work from traditional protections and benefits. And some forms of slicing can prove elusive or even illusory. The work itself may be lumpy and hard to divide, or the way in which work is delivered—Das Acevedo uses the example of transportation network companies—means that one may unwittingly take on a much larger serving than anticipated. When considering how to classify the relationship between workers and the platforms or employers with whom they interact, a focus on control over the lumps in which work will be completed may prove clarifying.

Rhett Larson’s contribution, Water Slices and Water Lumps, raises a (nearly) homophonic question as well: What are slices and what are lumps? On the one hand we have jurisdictional units that have been carved out for historical or political reasons, and on the other we have natural units like watersheds. The kinds of slicing and aggregating that would make more sensible water decisions possible will first require contending with the existing jurisdictional overlay or finding some way to circumvent its strictures. Larson offers some creative proposals along these lines, including the idea of Regional Water Mitigation Authorities that could accommodate and encourage voluntary lumping of water rights. Of course, water is not a lump unto itself; it gains value only as a complement to other human endeavors and enterprises. Recognizing that form of lumpiness is also part of the overall project of reconfiguring water rights.

Legal lumps also loom large in these essays. Hiba Hafiz’s Ownership Work and Work Ownership examines a variety of puzzles surrounding the ownership and control of work spaces. The idea that legal protections should attach to partial as well as full strikes, and that certain kinds of rights must be conveyed to workers when they are given access to a worksite, resonates with other property contexts. As Hafiz observes, the law already has found ways to slice and lump rights in landlord-tenant law. For example, the older doctrine of constructive eviction, which required that conditions be so bad as to require the tenant to physically vacate the place, has largely been superseded in residential contexts by an implied warranty of habitability that at least promises remedies that do not require the tenant to give up her home.

Sean Sullivan’s Lumps in Antitrust Law looks at two entwined kinds of legal lumpiness. One relates to bilateral monopolies that present a lumpy all-or-nothing situation: a deal between the parties either will or will not be reached. A second relates to pinpointing the source of law’s antitrust concerns. If there were perfect price discrimination, and monopolists did not miscalculate in carrying it out, then monopolies would entail no loss of efficiency through unconsummated transactions; rather, the monopolist would simply appropriate all of the surplus from every trade. If our concern is overall social welfare without regard to distribution, rather than consumer surplus, the problem with monopolies only arises when price discrimination is imperfect, or where only one price can be charged to all consumers and some transactions never occur as a result. The efficiency worry that animates the anticommons dilemma stems from imperfect price discrimination in resolving a set of bilateral monopolies to produce a valuable assembly. The assembly becomes impossible (absent some form of coercion) if the assembler cannot come to terms with each and every one of the individual monopolists, even though each has only one unit to sell (their own parcel of land, say) and all of the parties should have an interest in completing the deal.

In Agency Lumping and Splitting, Jennifer Nou turns to another facet of legal lumps: the way that regulatory decision-making—and regulatory decisions themselves—are divided and aggregated. Her essay discusses how agencies lump and split regulations as well as authority over particular issues. Given overlapping and interconnected problems, a given agency may be addressing only part of a complex issue—a point which raises interesting and important questions of aggregation. For example, different regulations imposed by different agencies may have cumulative and nonlinear effects that are both important and difficult to take into account.

Conflicts around the lumping together (or slicing apart) of sets of people is another common theme. I have already mentioned Siegelman’s work on the pooling and separation of people. The motif recurs in a different way in Sarah Lawsky’s piece, From Slices to Lumps and Back Again: Aggregation and Division in U.S. Federal Income Tax Law. Tax law must make judgment calls about how to recognize and delineate different corporate forms (which, after all, are just groups of people engaging in various sorts of income-generating activity). It also must decide how tax benefits should be handled as households change shape, and when individuals will be deemed sufficiently separate from each other to carry out a cognizable transfer for purposes of determining tax basis.

The problematic aggregation and separation of family members and other groupings is a common thread in Lior Strahilevitz’s Co-Location Covenants and Michael Pollack’s Lumping, Fairness, and Single People. Strahilevitz suggests that the law should not prevent people from forming durable arrangements for their own residential co-location where doing so would motivate them to move in the first place. He explains how property law’s traditional restrictions on inalienability, although designed to permit freer movement of people and resources, could get in the way of certain mobility-friendly co-location arrangements. Strahilevitz’s proposal recognizes the positive externalities that people can reciprocally bestow and enjoy through co-location and argues that property law should facilitate rather than inhibit capturing those benefits.

Coming from the other direction, Pollack critiques the way in which law and private markets tacitly or overtly privilege family groups over single people. There are two aspects to this critique. First, because singletons are the most granular entries in any mix of people, they are the easiest to shift around to accommodate lumpier groups—a point made with amusing clarity in the context of train travel. Second, for both market and regulatory reasons, goods tend to be served up in dollops that are wrongly sized for singletons, leaving them with large amounts of useless (and expensive) excess capacity. Pollack’s proposed solutions focus on strengthening the singleton’s entitlements in order to avoid uncompensated displacement and removing artificial impediments (like zoning restrictions in the case of housing) to “right-sized” consumption alternatives—an especially pressing concern in light of the rise in single-person households.

John Infranca’s contribution, Slicing (and Transferring) Development, focuses on one tool for resizing property entitlements: transferable development rights (TDRs). These devices allow a landowner to transfer rather than use a portion of her property entitlement bundle. For example, the owner of a four-story building in an area zoned for six-story buildings could transfer the development rights to that extra two stories elsewhere. The broader the range of permitted trades—if, for example, the owner can transfer her extra development rights anywhere in the city rather than just to adjacent properties or to other properties that she owns—the more likely the extra rights will actually be put to use. Open-ended tradeable rights can therefore produce more intense development than would occur in a “use it or lose it” regime. Yet the fact that what is being granted is simply the right to reconfigure development that was already permitted may make this a more politically acceptable way of adding density.

The future research directions suggested by this generative set of essays are many. Of particular relevance to my own research agenda are the ways in which innovative reconfiguration can move the needle on concrete issues like affordable housing and public benefits; how creating categories can produce or disrupt strategic behavior; and when lottery chances might offer more attractive alternatives than their expected value equivalents if preferences take a lumpy form—among others. And I feel certain that the many thoughtful essays collected here will inspire others to take an interest in the significance of configuration for their own fields of research.

I would like to end where I began, with gratitude. These contributions show that Slices and Lumps is, as I had hoped, a book of questions rather than a book of answers. Ultimately, its value will depend on the quality of the conversations that it starts and the ideas that those conversations generate. I am fortunate to have such generous and thoughtful interlocutors to open up the dialogue.

Lee Anne Fennell is the Max Pam Professor of Law, University of Chicago Law School. Research support from the Harold J. Green Faculty Fund and the SNR Denton Fund is gratefully acknowledged.

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