Law School News

Updated: 1 hour 26 min ago

William Baude on the Supreme Court's Record on Police (Audio)

11 hours 57 min ago
Bloomberg Law Brief: Supreme Court Record on Police (Audio) Bloomberg April 26, 2017

William Baude, a professor at the University of Chicago School of Law, discusses comments made by Supreme Court Justice Sonya Sotomayor over past court decisions in cases concerning police and alleged victims of police violence. He speaks with June Grasso and Greg Stohr on Bloomberg Radio’s "Bloomberg Law."



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Read more at: 

https://www.bloomberg.com/news/audio/2017-04-...

Faculty:  William Baude

Geoffrey R. Stone on the Debate Over Free Speech On Campus (Audio)

12 hours 6 min ago
Too PC Or Not PC? The Debate Over Free Speech On Campus 1A April 25, 2017

On colleges booking controversial speakers

Geoffrey Stone: I think that it is important to understand that the visibility that people like Anne Coulter get is because of the response. If Anne Coulter were invited to come and speak to whatever conservative student group invited her, and she simply came and gave her talk to a relatively small amount of people and nobody fussed over it, it would be of no moment. It would not be controversial, it would not dramatic, it would not have much of an impact. Ultimately, people would stop inviting her and she would stop coming. What’s counterproductive about all of this is that you make people into stories, you give them power, you make everyone read about what they have to say in the newspapers that are writing about the stories of the conflicts. It’s totally counterproductive to be doing this, you are giving them more power.

Read more at: 

http://the1a.org/shows/2017-04-25/too-pc-or-n...

Faculty:  Geoffrey R. Stone

William Baude on "The Supreme Court’s Double Standard for Qualified Immunity Cases"

Tue, 04/25/2017 - 09:23
The Supreme Court’s Double Standard for Qualified Immunity Cases William Baude The Volokh Conspiracy April 24, 2017

This morning, the Supreme Court denied certiorari in a case called Salazar-Limon v. City of Houston, a civil rights lawsuit in which the U.S. Court of Appeals for the 5th Circuit affirmed qualified immunity for a police officer who shot an unarmed man, because the man was allegedly reaching for his waistband. (Why he would be reaching for his waistband, given that he was unarmed, is a mystery.)

Though the Supreme Court does not normally explain its denials of certiorari, the denial prompted a couple of opinions. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented. Sotomayor argued that the district court had wrongly granted summary judgment and foreclosed a trial, “disregarding basic principles of summary judgment,” which should have made “easy work” of the case.

But she also remarked on a broader phenomenon in the court’s qualified immunity docket:

Read more at: 

https://www.washingtonpost.com/news/volokh-co...

Faculty:  William Baude

Martha C. Nussbaum Interviewed in Vox

Mon, 04/24/2017 - 12:35
9 questions for Martha Nussbaum Sean Illing Vox April 23, 2017

What’s the first piece of media you consume every day?

The Chicago Tribune and the New York Times, both papers, delivered to my door each day.

Name a writer or publication you disagree with but still read.

This strikes me as the most hilarious question, given that I'm a philosopher. Philosophy is all about respectful disagreement, and learning from disagreement. No decent philosopher simply parrots some other philosopher, so there must be disagreements somewhere in every case.

I disagree less with J.S. Mill than with any other major philosopher, but I still disagree with Mill a good deal. Aristotle is insightful on some matters, not so insightful on others. As for Plato, Kant, Bentham, Sidgwick, and Rawls, my disagreements are larger, but still compatible with thinking that in some very major ways they were on the right track. I would not say that about Lord Devlin or James Fitzjames Stephen, but I still teach both, in order to learn from their arguments.

If I didn't disagree with a philosopher it would hardly be worth engaging with him or her, because there would be nothing to learn.

Read more at: 

http://www.vox.com/conversations/2017/4/23/15...

Faculty:  Martha C. Nussbaum

Diane P. Wood to Receive David W. Peck Senior Medal for Eminence in the Law

Mon, 04/24/2017 - 11:13
Diane P. Wood to Receive Peck Senior Medal Richard Paige Wabash College April 21, 2017

Wabash College President Gregory Hess announced that Chief Judge Diane P. Wood, United States Court of Appeals for the Seventh Circuit, is the 2017 recipient of the David W. Peck Senior Medal for Eminence in the Law.

Wood will be on campus to deliver a lecture – “Public Service and Private Initiative: An American Tradition” – at 5 p.m. on Monday, April 24, in Baxter Hall room 101, and will receive the Senior Peck Medal thereafter at the 44th Annual Peck Dinner.

“Chief Judge Diane Wood has been a true trailblazer at every juncture of her career, and she is one of the most respected judges in the country,” Hess said. “She is a brilliant scholar who listens carefully to all sides before forming her opinions. She is a model of critical thinking and civil discourse, and I am pleased that our students will have the opportunity to learn from her.”

Read more at: 

https://www.wabash.edu/news/displaystory.cfm?...

Faculty:  Diane P. Wood

A Decade in the Making: How 'Sex and the Constitution' Took Geoffrey R. Stone Deep into History

Mon, 04/24/2017 - 09:24
Becky Beaupre Gillespie Law School Communications April 24, 2017

A decade ago, when Geoffrey R. Stone was beginning to research his new book on sex, law, and religion, he wasn’t quite sure where his inquiry was headed. And that was unusual; he’d always started his projects with a pretty accurate roadmap.

“It was the first time I’d ever embarked upon an enterprise without knowing what I was going to need to know, or where I was going to need to go,” said Stone, a constitutional scholar and the Edward H. Levi Distinguished Service Professor of Law. “In this case, I thought I was going to write a relatively narrow legal analysis of these issues—nobody had ever looked at abortion, contraception, gay rights, and sexual expression as a whole.”

As his path widened and wound, though, it took him deep into the past—and eventually lead to Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, March 2017), the first and only comprehensive history of how sex came to be legislated in America.

There were intriguing commonalities in the three legal areas Stone set out to explore. Issues related to obscenity, sexual orientation, and reproductive rights were inextricably bound up in religious beliefs about sin and shame—a conundrum, Stone noted, given the nation’s historic commitment to the separation of church and state. And so early on, he began to think about the men who had designed the US Constitution, which lays out both religious freedom and the separation of church and state—but says almost nothing about sexual freedom.

“Why didn’t they guarantee a constitutional right to, say, have an abortion? Part of the answer to that, I would suspect, is that it never would have occurred to them—it had always been legal, and no one had ever fussed over it,” Stone said. “It wasn’t like free speech, or search and seizure, or self-incrimination, where there had been long histories of what the Framers saw as abuse and denial of these rights. I’m sure they didn’t give a moment’s thought to these issues (of sexual freedom) because they took for granted that it was like eating—you don’t need a right to eat.”

What, he began to wonder, would the Framers make of contemporary America and its political preoccupation with abortion, contraception, sodomy, and obscenity and its divisive battles over the government’s role in regulating sexual behavior?

“I think if you’d asked the Framers, they would have said that for the government to enact laws that impose one religion’s faith upon other persons, particularly when the other persons are exercising a fundamental personal right, would be incompatible with the idea of separation of church and state,” Stone said.

But how does one separate norms and morality from religion? Whose values qualify as “traditional values”? And how and why did sex, religion, and law become so enmeshed?

Soon, he was digging deep into history, unspooling the sexual mores of the Puritans, medieval Europeans, early Christians, and the ancient Greeks and Romans. When he finished, his project had blossomed into an epic tale of humanity’s complicated relationship with sex and morality—from the sexually liberal attitudes in ancient Greece and Rome to the complex entanglement with sin and shame that emerged with Christianity and eventually became woven into American thinking through the Second Great Awakening and beyond.

“When you start with the ancient Greeks and Romans, you see what the world might look like without the particular features of Christian dogma, which became our norm over time,” Stone said. “I wanted to demonstrate to the reader that our ‘traditional’ attitudes about sexuality are not inherent in civilization and that other cultures that we’ve admired have had very different attitudes than ours, and I wanted to also help frame what impact Christianity had on western culture in this particular respect.”

Sex and the Constitution uses the sweep of history to illuminate this point, creating a foundation for the book’s second half, which explores the how the Supreme Court, beginning in the mid-20th century, worked to curb efforts by religious conservatives to ban contraception and abortion, deny gay rights, and censor various forms of sexual expression. Along the way, Stone introduces key figures like anti-obscenity crusader Anthony Comstock and birth control activist Margaret Sanger and discusses dozens of landmark cases, including Roth v. United States (1957), Griswold v. Connecticut (1965), Cohen v. California (1971), Roe v. Wade (1973), Bowers v. Hardwick (1986), Romer v. Evans (1996), Lawrence v. Texas (2003), Gonzales v. Carhart (2007), Obergefell v. Hodges (2015), and Whole Woman’s Health v. Hellerstedt (2016).

On the jacket and in the epilogue, the book also acknowledges the eleventh-hour political surprise—the election of Donald J. Trump, which coincided with a vacancy on the Supreme Court—that caused Stone to call his own “naïve optimism” into question.

“The book originally ended on an upbeat notion, talking about how we have to respect the rights of religious people, not by allowing them to restrict others but by respecting their sincerely held religious beliefs,” Stone said. Instead, he notes on the jacket that “we seem to have taken a huge step backward,” and he ends the book by noting that the Supreme Court is likely to become more conservative than at any time in the past century, jeopardizing decisions like Roe or Obergefell. (If Trump ends up filling a second vacancy on the Court, Stone predicted that conservative justices would move quickly to overturn Roe, but were more likely to leave Obergefell alone.)

Regardless of what happens next, Stone hopes that readers gain a broader and deeper sense of how our attitudes toward sexual behavior have evolved—and how religion and law intersect.

“We have to be careful about the way in which we deal with our religious beliefs as citizens,” he said. "What we've seen over the past half-century (with decisions like Roe v. Wade) is not a novel shift in freedoms but a return, for the most part, to where we were and where we should be."

Faculty:  Geoffrey R. Stone IN THE NEWS

Coverage and reviews 

Excerpts in the Volokh Conspiracy blog in the Washington Post

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Geoffrey R. Stone, Students Pen Op-Ed on President's Use of Armed Force Without Congressional Authorization

Fri, 04/21/2017 - 14:21
Can Donald Trump Use Military Force Anywhere In The World Whenever He Wants? Geoffrey R. Stone, Sten Jernudd, Zachary Levine, and Daniel Scime Huffington Post April 21, 2017

Two weeks ago, President Donald Trump ordered a missile strike on an airfield in Syria. The missiles were not aimed at ISIS, nor did they target any al-Qaida-affiliated group. The strike was instead aimed at a Syrian missile base in response to the Assad regime’s recent use of chemical weapons against civilians. Then this Monday, Vice President Pence – standing near the DMZ in South Korea – proclaimed that the United States’ “era of strategic patience” with North Korea is over. Speculation has mounted that the Trump Administration might now be contemplating a preemptive strike.

Such speculation has laid bare one of our nation’s oldest and most vexing constitutional issues: To what extent does the Constitution grant the president the authority to employ armed force without congressional authorization? The debate over this question is as old as the Republic, but rather than clarifying the appropriate contours of presidential power in this realm, the passage of time has only obscured them.

Article I of the Constitution grants Congress the power to declare war, raise armies, maintain the navy, make rules governing the land and naval forces of the United States, call forth the militia, and control the expenditure of federal funds. Article II, on the other hand, provides that the president shall be the “Commander in Chief” of the military forces of the United States. Thus, at first glance, the division of powers is clear: Congress has the power to regulate the military and to declare war, and the president has the responsibility to command the military in the implementation of war.

Read more at: 

http://www.huffingtonpost.com/entry/58fa33b3e...

Faculty:  Geoffrey R. Stone

Geoffrey R. Stone on Why to Defend Offensive Speech

Fri, 04/21/2017 - 11:35
Free Speech Free-for-All The Brian Lehrer Show April 21, 2017

Berkeley is where the 1960s free speech movement started and has become a battlefield over partisan speech issues. Frances Dinkelspiel, journalist and co-founder of Berkeleyside, award-winning community news site covering Berkeley, CA, reports on the factions behind the postponement of Ann Coulter's campus speech and the off-campus demonstrations that turned violent. Geoffrey Stone, University of Chicago law professor and noted first amendment scholar, argues that even offensive speech should be defended.

Read more at: 

http://www.wnyc.org/story/free-speech-free-all/

Faculty:  Geoffrey R. Stone

Allison Hugi, '18: "Protecting Unsympathetic Defendants, from the United States to Pakistan"

Fri, 04/21/2017 - 11:10
Protecting Unsympathetic Defendants, from the United States to Pakistan Allison Hugi, '18 Huffington Post April 17, 2017

Following a brutal gang rape in New Delhi in 2012, there were calls in India to punish rape with a mandatory death sentence, starting with the perpetrators of that crime (one of whom was seventeen years old).

In contrast, when Qandeel Baloch, a Pakistani woman famous for posting “provocative” selfies online, was killed by her brother in 2016 for bringing shame to their family, some felt that justice had been served.

As a law student in the University of Chicago Law School’s International Human Rights Clinic, I have been struggling to balance these divergent reactions to violence against women. On the one hand, those calling for harsh sentences and processes that invariably result in convictions seem willing to weaken the safeguards their justice system has created for the accused. American colleges, for example, have sometimes reacted to high-profile sexual assaults on campuses by adopting internal processes that don’t allow accused parties to have lawyers argue on their behalf, access the evidence against them, or cross-examine witnesses.

On the other hand, the reactions to Baloch’s murder clearly demonstrate that, in many regions, progress is yet to be made before violence against women is treated as it should be.

Read more at: 

http://www.huffingtonpost.com/entry/58f530b1e...

Gerrymandering Case, Informed by Stephanopoulos's "Efficiency Gap," Heads to Supreme Court

Fri, 04/21/2017 - 10:21
‘Pivotal Moment’ for Democrats? Gerrymandering Heads to Supreme Court Michael Wines The New York Times April 21, 2017

A bipartisan group of voting rights advocates says the lower house of the Wisconsin Legislature, the State Assembly, was gerrymandered by its Republican majority before the 2012 election — so artfully, in fact, that Democrats won a third fewer Assembly seats than Republicans despite prevailing in the popular vote. In November, in a 2-to-1 ruling, a panel of federal judges agreed.

Now the Wisconsin case is headed to a Supreme Court that has repeatedly said that extreme partisan gerrymanders are unconstitutional, but has never found a way to decide which ones cross the line.

[...]

The Wisconsin plaintiffs’ attempt to break the logjam is a new standard, the efficiency gap. It is a numerical rating of parties’ “wasted” votes: those above the 50-percent-plus-1 needed to win a seat, and all votes cast in a loss. When the gap between the parties’ ratings exceeds a limit based on ratings from hundreds of past elections, the plaintiffs argue, the majority party should have to justify the boundaries it drew. Even then, plaintiffs would have to prove the party aimed to weaken the opposition.

The Wisconsin case underscores how modern gerrymanders, using computers and political and behavioral data, have become increasingly effective. Measured by the efficiency gap, four of the five most partisan state legislature maps in the last 45 years were drawn after 2010, said Nicholas O. Stephanopoulos, a University of Chicago law professor and lawyer for the plaintiffs.

Read more at: 

https://www.nytimes.com/2017/04/21/us/democra...

Faculty:  Nicholas Stephanopoulos

Geoffrey R. Stone on the Regulation of Sexual Expression (Audio)

Thu, 04/20/2017 - 10:31
‘So to Speak’ podcast: ‘Sex and the Constitution’ with professor Geoffrey R. Stone So to Speak April 20, 2017

Sex and the Constitution are not two topics often thought of together.

But University of Chicago Law School professor Geoffrey R. Stone seeks to change that with the publication of “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.”

The newly released, 700-page book from the author of the University of Chicago’s seminal Report of the Committee on Freedom of Expression is 10 years in the making. Stone’s comprehensive review extends all the way back to the ancient Greeks and Romans to explain how sex came to be legislated in America.

Professor Stone is our guest on today’s episode of So to Speak: The Free Speech Podcast. Fittingly, we met in New York City to discuss the portions of “Sex and the Constitution” dealing with the regulation of sexual expression. It was, after all, in New York City where the YMCA and Anthony Comstock began their campaigns in the 1800s to root out what they deemed obscene, sexually explicit material.

During our conversation, Stone explains how “obscenity” came to be regulated in America and why its legal definition constantly shifts. We also explore other First Amendment issues surrounding sexual expression, including nude dancing and the public funding of art with sexual themes.

Read more at: 

https://www.thefire.org/so-to-speak-podcast-s...

Faculty:  Geoffrey R. Stone

Adam Chilton Examines Political Leanings of Legal Scholars

Wed, 04/19/2017 - 15:32
How ‘ideologically uniform’ is the legal academy? Jonathan H. Adler The Washington Post April 17, 2017

How much more liberal are law professors than members of the legal profession? A new paper by Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), “The Legal Academy’s Ideological Uniformity,” provides some answers. Their bottom line: The legal academy is significantly more liberal than the legal profession, which is notable because the legal profession itself is more liberal than the public at large.

Here is how the authors summarize some of their findings:

We find that approximately 15% of law professors are conservative and that only approximately one out of every twenty law schools have more conservative law professors than liberal ones. In addition, we find that these patterns vary, with higher-ranked schools having an even smaller presence of conservative law professors. We then compare the ideological balance of the legal academy to that of the legal profession. Compared to the 15% of law professors that are conservative, 35% of lawyers overall are conservative. Law professors are more liberal than graduates of top 14 law schools, lawyers working at the largest law firms, former federal law clerks, and federal judges. Although we find that professors are more liberal than the alumni at all but a handful of law schools, there is a strong relationship between the ideologies of professors from a law school and the ideologies of alumni from that school. However, this relationship is weaker for schools with more conservative alumni.

Read more at: 

https://www.washingtonpost.com/news/volokh-co...

Faculty:  Adam Chilton

William Baude Explains Trump’s Lack of Immunity from Lawsuits

Wed, 04/19/2017 - 15:30
Trump claims immunity as President in lawsuit Tal Kopan CNN April 18, 2017

President Donald Trump is claiming he cannot be sued now that he has won the White House -- a defense in a lawsuit that alleges Trump incited rally-goers to violence when they allegedly assaulted protesters during the 2016 campaign.

[...]

But the court decided unanimously in former President Bill Clinton's case that he could face a lawsuit for actions he allegedly took prior to becoming President, leading to his famous impeachment. In that case, former Arkansas state employee Paula Jones alleged Clinton sexually harassed her when he was governor of Arkansas.

"Generally speaking, things done before the President is president, in the President's ordinary capacity, there's no special immunity from suit," said University of Chicago Law School professor William Baude, who works on immunity. "(The concept is) about preserving your ability to do your job; it doesn't apply before you had your job"

Read more at: 

http://www.cnn.com/2017/04/17/politics/trump-...

Faculty:  William Baude

Daniel Hemel Explains How Lawmakers Could Reveal Trump's State Tax Returns (Audio)

Wed, 04/19/2017 - 15:25
Lawmakers Across The Country Push For Trump's Tax Returns All Things Considered April 17, 2017

ROSE: Trump said during the campaign that he wouldn't release his tax returns because they're under audit. As president, his federal returns are audited automatically by law. Although that hasn't stopped past presidents from releasing theirs. One tax scholar thinks there might be an easier way to find out more about Trump's finances through his state tax returns.

DANIEL HEMEL: Those returns don't show everything that appears on his federal returns, but they show a lot of the same information.

ROSE: Daniel Hemel teaches law at the University of Chicago. He says New York could change its law to release the state tax returns of a sitting president.

HEMEL: So we'll be able to see what he reports as income, whether he's as rich as he claims to be, whether he's as charitable as he claims to be. And most importantly, we'll see what he's paying the state of New York.

Read more at: 

http://www.npr.org/2017/04/17/524393071/lawma...

Faculty:  Daniel Hemel

JOTWELL Features Jennifer Nou's "Bureaucratic Resistance from Below" and "Taming the Shallow State"

Wed, 04/19/2017 - 15:09
What Will the Federal Government's Resistance to Presiden Trump Look Like? Paul Horwitz Jotwell April 18, 2017

Whether the executive bureaucracy, inside and outside of cabinet departments and other agencies, comprises a “fourth branch” of government or not, it clearly has many tools at its disposal to respond to and resist the head of the executive branch within which it sits. Since the election, both before and after the transfer of power itself, we have in fact seen variety of forms of resistance on the part of the civil service. President Truman famously observed of incoming President Eisenhower, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.” And in a recent piece on the civil service, Professor Daniel Hemel quotes, via Chief Justice Roberts, President Kennedy saying to a constituent, “I agree with you, but I don’t know if the government will.” We are now witnessing that phenomenon on steroids. The executive branch and the substantial civil service attached to it is definitely not The Apprentice. It barely resembles even the standard organizational chart one might remember from a class on separation of powers.

Jennifer Nou, a regulatory expert at the University of Chicago, has been remarking perceptively on this possibility both before and after the inauguration, in a pair (I hope they will become a series) of posts at the blog of the Yale Journal of Regluation. Even before the inauguration, Nou offered “a catalogue of tactics that civil servants have historically used to defy their superiors, both covertly and overtly.” They include slowdowns, using the agency process to build records that “will make it more difficult for the administrator to reverse [a] decision in good-faith,” cooperation with Inspectors General, lawsuits, resignations, and leaks. To this we might add, perhaps as a species of uncivil obedience, former Acting Attorney General Sally Yates’s refusal to enforce the initial administration executive order on travel, on the grounds that the refusal was “informed by my best view of what the law is after consideration of all the facts.” (Given that she served at the pleasure of the president, we might also think of this as a form of implicit noisy withdrawal.) Post-inauguration, Nou argues that the level of bureaucratic resistance to the Trump administration seems “unprecedented” in its “open defiance” of the President. She notes that this defiance invites “the inevitable crackdown from above,” and catalogues some forms the crackdown might take, such as reductions in force, prosecutions of leakers, and simply cutting the bureaucracy out of the consultation and decision-making loop.

Read more at: 

http://conlaw.jotwell.com/what-will-the-feder...

Faculty:  Jennifer Nou

Mark N. Templeton on East Chicago Lead Contamination and EPA Budget Cuts

Wed, 04/19/2017 - 15:04
Hard questions for Pruitt in city 'bombarded by lead' Amanda Reilly Greenwire April 18, 2017

U.S. EPA Administrator Scott Pruitt's "Back-to-Basics" tour will touch down tomorrow in East Chicago, Ind., an industrial city in the throes of a lead-contamination crisis.

As EPA's budget is slashed and more work is handed to state agencies, environmentalists and community activists in East Chicago are worried about the Trump administration turning its back on environmental justice. Their concerns rose last month when EPA's top environmental justice official, Mustafa Ali, resigned.

Pruitt's visit to East Chicago offers a chance to address concerns about how EPA will handle pollution in poor communities and to hear from residents worried about the pace and transparency of the cleanup of lead contamination.

East Chicago is a "textbook example of an environmental justice low-income community of color," said Mark Templeton, an associate professor at the University of Chicago Law School who represents local residents in a court battle over the cleanup of the USS Lead Superfund site.

"I would say that I am seriously concerned about the ability of EPA as well as the states to be able to fulfill their responsibilities with the proposed budget cuts," he said.

Read more at: 

https://www.eenews.net/stories/1060053224

Faculty:  Mark N. Templeton

Geoffrey R. Stone on White Nationalist Richard Spencer's Right to Speak at Auburn University

Wed, 04/19/2017 - 12:36
Richard Spencer's Right to Speak at Auburn Geoffrey R. Stone The New York Times April 18, 2017

Because Auburn is a public institution, its actions are governed by the First Amendment. This has consequences. In its 1995 decision in Rosenberger v. University of Virginia, for example, the Supreme Court held that the University of Virginia could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. That same principle clearly applies in the Spencer situation, because Auburn routinely permits speakers who convey various points of view to speak on campus.

Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.

This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker.

Read more at: 

https://www.nytimes.com/2017/04/18/opinion/ri...

Faculty:  Geoffrey R. Stone

Anthony J. Casey on Side Agreements in Corporate Bankruptcy (Audio)

Mon, 04/17/2017 - 16:08
ABI's 200th Podcast Features Judge and Academics Discussing Side Agreements in Corporate Bankruptcy American Bankruptcy Institute April 17, 2017

ABI Resident Scholar Andrew Dawson talks with Chief Bankruptcy Judge Brendan Shannon (D.Del.; Wilmington) and Prof. Anthony Casey of the University of Chicago Law School about intercreditor and "bad boy" agreements in corporate bankruptcy cases. Prof. Casey is a co-author of "Bankruptcy on the Side" a paper that examines the question of how judges should interpret and enforce side agreements. Judge Shannon, with more than 12 years of experience on the Delaware bench, provides his thoughts on the research and the challenges that these often side agreements present in his courtroom.

Read more at: 

http://www.abi.org/podcasts/abis-200th-podcas...

Faculty:  Anthony J. Casey

Judge of High Court of Botswana Promotes IHR Clinic Work in Letter to Editor

Mon, 04/17/2017 - 12:11
Letter to the Editor: Human Rights, TB, Legislation and Jurisprudence O. B. K. Dingake Health and Human Rights Journal April 12, 2017

People with tuberculosis (TB) experience infringements of their human rights on a daily basis. In far too many cases, they lack access to effective testing and treatment, face discrimination in employment and health care settings, and are unnecessarily detained and isolated against their will. Yet, even as TB has surpassed HIV as the top infectious disease killer in the world and the global threat from multidrug-resistant TB continues to grow, the ethical and legal issues around TB remain largely neglected in national TB programs and research agendas. New approaches are needed to address the social, economic, and structural factors driving the epidemic and drug resistance.

Commendably, this journal featured a special section on TB and the right to health in June 2016. As outlined in the editorial and a series of articles in the section, a human rights-based approach to TB establishes and protects the rights of people living with and vulnerable to TB, including the rights to life, health, non-discrimination, privacy, participation, information, liberty of movement, housing, food, water, and to enjoy the benefits of scientific progress. This includes access to the most recent treatments and diagnostic tools. In addition, human rights law at the international and regional levels and national constitutions create corresponding legal obligations for governments and responsibilities for private actors, promoting accountability and access to remedies for rights violations.

In line with this rights-based framework, the Stop TB Partnership’s Global Plan to End TB 2016–2020 calls for a human rights- and gender-based approach to TB grounded in international, regional, and domestic law. The Global Plan acknowledges that TB programming will not be successful unless global and national programs ground their work in human rights and gender equity.

As part of the Global Plan’s implementation, the TB and Human Rights Consortium—whose members include the Stop TB Partnership, University of Chicago Law School International Human Rights Clinic, and KELIN (Kenya)—has launched an inclusive, consultative process to promote adoption of the Nairobi Strategy on TB and Human Rights. Led by people with TB, TB survivors, and other allies, the strategy aims to implement several streams of work to foster diverse, focused, and sustained advocacy efforts.

Read more at: 

https://www.hhrjournal.org/2017/04/letter-to-...

Faculty:  Brian Citro

How Nicholas Stephanopoulos's "Efficiency Gap" Offers a Way to Identify Unconstitutional Gerrymandering

Mon, 04/17/2017 - 11:01
Gerrymandering Is Illegal, But Only Mathematicians Can Prove It Erica Klarreich Wired April 16, 2017

Since drawing compact districts is not a cure-all, solving the gerrymandering problem also requires ways to measure how biased a given map is. In a 2006 ruling, the Supreme Court offered tantalizing hints about what kind of measure it might look kindly on: one that captures the notion of “partisan symmetry,” which requires that each party have an equal opportunity to convert its votes into seats.

The court’s interest in partisan symmetry, coming after its rejection of so many other possible gerrymandering principles, represents “the most promising development in this area in decades,” wrote two researchers—Nicholas Stephanopoulos, a law professor at the University of Chicago, and Eric McGhee, a research fellow at the Public Policy Institute of California—in a 2015 paper.

In that paper, they proposed a simple measure of partisan symmetry, called the “efficiency gap,” which tries to capture just what it is that gerrymandering does. At its core, gerrymandering is about wasting your opponent’s votes: packing them where they aren’t needed and spreading them where they can’t win. So the efficiency gap calculates the difference between each party’s wasted votes, as a percentage of the total vote—where a vote is considered wasted if it is in a losing district or if it exceeds the 50 percent threshold needed in a winning district.

[...]

The two have proposed the efficiency gap as the centerpiece of a simple standard the Supreme Court could adopt for partisan gerrymandering cases. To be considered an unconstitutional gerrymander, they suggest, a district plan must first be shown to exceed some chosen efficiency gap threshold, to be determined by the court. Second, since efficiency gaps tend to fluctuate over the decade that a district map is in force, the plaintiffs must show that the efficiency gap is likely to favor the same party over the entire decade, even if voter preferences shift about somewhat.

Read more at: 

https://www.wired.com/2017/04/gerrymandering-...

Faculty:  Nicholas Stephanopoulos

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