Law School News

Updated: 2 hours 41 min ago

Eric Posner on "Judges v. Trump"

Fri, 02/17/2017 - 09:40
Judges v. Trump: Be Careful What You Wish For Eric Posner The New York Times February 15, 2017

The courts now must confront a question: Can they face down President Trump without undermining their own standing?

The opinion of the United States Court of Appeals for the Ninth Circuit upholding the temporary restraining order against President Trump’s travel ban has received a fair amount of criticism from legal experts. They point out that the president enjoys considerable legal authority to take immigration­related actions.

But the experts miss the larger significance of the opinion. It is less a conventional statement of legal reasoning than an indication that the courts have woken up to the dangers of the Trump presidency. The courts now must confront aquestion: Can they face down President Trump without undermining their own standing?

Read more at: 

https://www.nytimes.com/2017/02/15/opinion/ju...

Faculty:  Eric A. Posner

Part IV of Stone's "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Thu, 02/16/2017 - 10:00
Trump, The Supreme Court, And The Rights Of Gays And Lesbians, Part 4 Geoffrey R. Stone Huffington Post February 15, 2017

The role of the Supreme Court in addressing the issue of same-sex marriage.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead.

In my first three pieces in this series, I discussed the history of homosexuality from the ancient world through the Supreme Court’s 2003 decision in Lawrence v. Texas. See part 1part 2; and part 3.

In this, the fourth and final piece in the series, I will discuss the role of the Supreme Court in addressing the issue of same-sex marriage. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/trump-the...

Faculty:  Geoffrey R. Stone

Daniel Hemel: Is a Destination-Based Cash Flow Tax “Highly Progressive”?

Thu, 02/16/2017 - 09:54
Is a Destination-Based Cash Flow Tax “Highly Progressive”? Daniel Hemel Whatever Source Derived February 15, 2017

Lots of smart people have been saying that the House GOP’s proposed “destination-based cash flow tax” (DBCFT) would make our system of business taxation more progressive. Alan Auerbach, the intellectual architect of the proposal, says the system would be “highly progressive” because unlike other consumption taxes, the DBCFT exempts wages and salaries from the tax base. Stuart Leblang and Amy Elliott write in a BloombergView column that the DBCFT “should actually be more progressive than our current corporate income tax.” The UK-based Independent posted an op-ed earlier this month with the amusing (though moderately misleading) title: “Deluded Republicans are accidentally pushing for progressive corporation tax reform.”

Well, it all depends on what we mean by “progressive.” Kyle Rozema and I point out in an article forthcoming in the Tax Law Review that even the mortgage interest deduction can be characterized as “progressive” depending on which counterfactual you choose. Our analysis of the mortgage interest deduction applies similarly to the DBCFT. The House GOP plan reduces revenue: the Tax Policy Center pegs the revenue loss from the DBCFT and related corporate income tax reforms at $891 billion over the next decade, while the Tax Foundation estimates an even larger loss of $1.2 trillion (actually rising with dynamic scoring). Whether a DBCFT is “progressive” or “regressive” — i.e., whether it redistributes wealth from the rich to the poor or the other way around — depends entirely on how that gap is filled.

Read more at: 

https://medium.com/whatever-source-derived/is...

Faculty:  Daniel Hemel

Adam Chilton at the Midway Dinner: Take Advantage of All this Great University Offers

Tue, 02/14/2017 - 11:15
Law School Communications February 14, 2017

The Midway Dinner is held across the Midway each February to celebrate the midway point of the law school careers of the 2L class. These are the words Assistant Professor Adam Chilton shared last week with the Class of 2018.

We’re gathered here for one of the traditions that make the University of Chicago Law School such a special place: the Midway Dinner.

I could say more about the tradition and how happy I am to be asked to speak on this occasion, but if there is one defining norm here at the University of Chicago, it’s this: no small talk. That’s why, after working here for four years, I know the titles of hundreds of my colleagues’ articles, but none of their children’s’ names. Actually, I don’t remember the titles of their articles, but acknowledging that would be what’s considered hurtful. So let’s get right to it.

Last Friday, I crossed the Midway for the reason every member of our community does regularly without first needing to hear a speech: to find food. On that particular day though, I was meeting James Robinson for lunch. James teaches at the Harris School, is the director of the new Pearson Center for Global Conflict, holds a University professorship, and is a mortal lock to share a Nobel Prize one day with his longtime collaborate Daron Acemoglu for their research on development economics.

Now, James has a background in economics and teaches at a public policy school, and I have a background in political science and teach at the Law School, but we’ve been talking regularly this year because we are both currently working on research on related topics. In both cases, our projects are in part motivated by natural experiments, so let me just explain.  

James’ natural experiment is the fate of two cities along the US/Mexico border. More specifically, Nogales, Arizona, and Nogales, Sonora.  Now, this is the corner of the world that I’m from, and anyone that has visited will tell you, the thing that is distinctive about these cities is that they were once one city, and they’re now divided by a 30-foot-high wall.

On the north side of the wall, the average income is about $30,000 per year. The majority of adults are high school graduates and the majority of teenagers are in school. By global standards, the residents live healthy and long lives that are relatively free of crime and corruption.

On the south side of the wall, the story is different. The average income is closer to $10,000 per year. The majority of adults are not high school graduates, and the majority of teenagers are not in school. And compared to their northern neighbors, the residents live shorter lives, and have to face worse in structure, higher crime, and greater corruption. In short, the side of this wall you are born on has a dramatic impact on your expected outcomes in life.

The obvious question is: what explains the dramatic difference? Now, what’s interesting about this particular case is that many of the explanations put forth to explain development aren’t available. For example, development economists often argue that geography and climate are major sources of disparities in economic growth, but in this case, both cities have the same geography and the same climate. Or as another example, economists also often argue that disparities in growth are related to culture, but here too, the culture and ancestry of the people are the same.

So if the conventional explanations don’t explain this difference, what does? James Robinson and Daron Acemoglou have gotten famous—or at least, famous for academic economists—by arguing that the difference is the quality of the institutions. More specifically, they argue that the United States has inclusive institutions that allow the residents to take part in the democratic process, for individuals to be secure in their own property rights, and for everyone (or, almost everyone) to unlock their human capital through education, employment, and entrepreneurship.

Now, I know that after the last few weeks it sounds weird to argue that America has inclusive institutions, but these things are relative. Compared to Mexico specifically, and Latin America more generally, the United States has had less corrupt and captured institutions. In other words, the thing that that explains the dramatic differences in the life chances for a child born in Nogales Arizona, and a child born in Nogales, Mexico, is the strength of our laws.

Let me give you another natural experiment that’s motivating what I’m currently working on. At the end of World War II, there were just 64 independent countries in the world. By 1970, just 25 years later, that number had more than doubled to 134. This change was largely driven by decolonization. In fact, just more than half of the new countries during that time period were formerly British colonies.

At the time of independence, England largely gave its former colonies a standard constitution known as the Lancaster House constitutions. The interesting part is that the colonies that gained independence from 1945 to 1960 did not include a bill of rights, but then in 1960 there was a decision in the British Foreign Office to start including a bill of rights in constitutions going forward.

The best historical account I know of suggests that the change was a pretty random development. Some officials thought it might make more sense to use as their template, so they did. Why I’m interested is that change presents an amazing opportunity to study whether individual rights actually improve outcomes.

Now, here’s the kicker. At least my initial analysis of the data seems to suggest that having a bill of rights doesn’t make much of a difference. Countries with the bill of rights don’t appear to have had much better rights outcomes than countries without the bill of rights. This trend doesn’t just hold with the Lancaster House constitutions. Instead, my research on the topic with my collaborator Mila Versteeg on the effectiveness of constitutional rights suggests that individual rights and socio-economic rights have no discernable impact on outcomes.

So, where does that leave us? The experience of Nogales tells us that legal regimes that protect individuals and allow them to flourish are perhaps the most important driver of development, but the experience of the Lancaster House experiment tells us that what we put in constitutions might not always make a difference.

How can we square these two claims? It could be the case that the explanation is that individual rights aren’t what matter, but that the distribution of power structures within a country are what does the important work. Or it could be the case that strong legal institutions take time to develop, and for many new countries their institutions simply have had the time to mature. There are many possible explanations, and I’m always open to hearing new theories, but I can tell you that we currently don’t know the answer.

So what does all this have to do with why we are gathered here today? The point is that we know that strong legal institutions matter, but we know a lot less about how to make them. I’m not sure what the answer is, but I’m positive it will be impossible for us to figure out if we don’t have an understanding of history, economics, and a variety of other fields. These are exactly the kind of things that you still have the time to study when you cross the midway.

I’m sure many of you are thinking that these questions might seem interesting to an academic, but have little to do with what you’ll work on when you leave law school. To you, I’d say this: much of what education is about is becoming increasingly specialized. What’s scary about that is that specialization is often the process of closing doors. But being an interdisciplinary person is about opening them back up. Statistics can make you valuable in public interest law, and a knowledge of Latin American history can make you more valuable to firms working on transnational M&As.

So whether you care about helping to improve the lives of people born on the wrong side of walls, or are concerned with insuring that our own institutions continue to become more inclusive and not less, or just want to ensure that you have as many options as possible when you become a lawyer, I urge you to spend part of your time over the next year and a half crossing the Midway and take advantage of all the fascinating courses in other fields that this great university offers. 

Faculty:  Adam Chilton

 "Much of what education is about is becoming increasingly specialized. What’s scary about that is that specialization is often the process of closing doors. But being an interdisciplinary person is about opening them back up." 

20170209_midwaydinner_3922.jpg

Eric Posner on Whether the Court Thinks Trump is a Bigot

Tue, 02/14/2017 - 10:15
The Presidency Shrinks, Part 2 Eric Posner Ericposner.com February 13, 2017

In a post on the Ninth Circuit travel ban case, Washington v. Trump, I observed that when the case goes back to the district court, the court will determine whether Trump acted from anti-Muslim animus. If it so finds, then any future national-security action will be subject to an extra layer of judicial review, potentially interfering with the president’s ability to protect the public. “We may have a new regime of heightened judicial review in national security cases because courts believe the president is a bigot.”

Now we get to find out. A district court in Virginia made just this determination in a case called Aziz v. Trump. She declared the national-security justification for the travel ban a sham, and found sufficient evidence of anti-Muslim animus on Trump’s part to issue a preliminary injunction.

Read more at: 

http://ericposner.com/the-presidency-shrinks-...

Faculty:  Eric A. Posner

Part III of Stone's "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Tue, 02/14/2017 - 10:02
Trump, The Supreme Court, And The Rights Of Gays And Lesbians, Part 3 Geoffrey R. Stone Huffington Post February 13, 2017

In this, the third piece in the series, I will discuss the role of the Supreme Court in addressing the constitutionality of laws making sodomy a criminal offense.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead. In my first two pieces in this series (which I have decided to expand to four posts rather than three), I discussed the history of homosexuality from the ancient world through the 1990s. See part 1 and part 2.

In this, the third piece in the series, I will discuss the role of the Supreme Court in addressing the constitutionality of laws making sodomy a criminal offense. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/part-iii-...

Faculty:  Geoffrey R. Stone

Part II of Stone's "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Mon, 02/13/2017 - 11:25
Trump, The Supreme Court, And The Rights Of Gays And Lesbians, PART II Geoffrey R. Stone Huffington Post February 10, 2017

In this post, the second of three on this subject, I will trace the history of homosexuality in the United States from the 1960s to the 1990s.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard. The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future.

Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead. In my last piece, I briefly explored the history of homosexuality from the ancient world through the 1950s.

In this post, the second of three on this subject, I will trace the history of homosexuality in the United States from the 1960s to the 1990s. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/589e8ef7e...

Faculty:  Geoffrey R. Stone

Aziz Huq, Eric Posner, and Tom Ginsburg on the Specter of a "Constitutional Crisis"

Mon, 02/13/2017 - 11:23
I asked 8 experts if we’re in a constitutional crisis. Here’s what they said. Dylan Matthews Vox February 13, 2017

Huq doesn’t think we’re in a constitutional crisis (“I don’t know what the term ‘constitutional crisis’ means, which I feel like is a very law professor thing to say,” he jokes) or that we’re engaged in democratic backsliding. But he thinks the danger is real and worth considering.

“Trash-talking the federal courts on Twitter does not create a constitutional crisis,” Yale’s Jack Balkin explained. “It's a really bad idea, but there are many really bad ideas that are not constitutional crises.”

But most experts said that if Trump were to start defying court edicts, that would very possibly qualify, and even his mere rhetoric ramps up conflict with the judiciary in a counterproductive and perhaps dangerous way.

And they were sure to add that even if we’re not in a constitutional crisis, that doesn’t at all imply that what is happening is normal, or moral, or fair, or decent. “I don’t like the phrase ‘constitutional crisis’ because it has this contention that unless the whole system is up for grabs, we shouldn’t care about an 18- or 19-year-old kid in Chicago who is so anxious about being deported he takes his own life,” Aziz Huq, a constitutional law professor at the University of Chicago, noted. “Crises happen everywhere on a micro scale. Just because they are happening to people on the margins doesn’t make them less important.”

Read more at: 

http://www.vox.com/policy-and-politics/2017/2...

Faculty:  Aziz Huq Faculty:  Tom Ginsburg Faculty:  Eric A. Posner

Huq Files Legal Brief in 9th Circuit on Travel Ban

Fri, 02/10/2017 - 17:21
University of Chicago Professor Files Legal Brief on Travel Ban Odette Yousef WBEZ February 9, 2017

Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, has filed a legal brief with the 9th Circuit Court of Appeals in the matter of President Donald Trump’s travel ban. WBEZ’s Odette Yousef reported the story, available here.

Read more at: 

https://www.wbez.org/shows/wbez-news/universi...

Faculty:  Aziz Huq

Eric Posner: "The Presidency Shrinks"

Fri, 02/10/2017 - 12:36
The Presidency Shrinks Eric Posner ericposner.com February 9, 2017

The presidency shrinks…if the Ninth Circuit panel’s reasoning survives further layers of review. 

… if the Ninth Circuit panel’s reasoning survives further layers of review. Consider this passage from the opinion:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b)and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

When the district court holds a hearing on the motion for a preliminary injunction, it will consider evidence regarding President Trump’s “intention” or “purpose.” The state of Washington will seek emails, documents, and testimony from people in the White House (including Steve Bannon), Rudolph Giuliani, and others. I don’t know how many of these people will be required to testify, and how many documents will be privileged. But in the end the court will make a determination as to whether Trump deliberately targeted Muslims with no national security justification.

Read more at: 

http://ericposner.com/the-presidency-shrinks/

Faculty:  Eric A. Posner

William Baude on the 9th Circuit's Decision in Washington v. Trump

Fri, 02/10/2017 - 12:28
Quick Reactions to the 9th Circuit’s Decision in Washington v. Trump William Baude The Volokh Conspiracy February 9, 2017

Today the U.S. Court of Appeals for the 9th Circuit issued a unanimous per curiam decision in Washington v. Trump, denying the government’s emergency appeal to stay the temporary restraining order/preliminary injunction issued against Executive Order 13769.

Today the U.S. Court of Appeals for the 9th Circuit issued a unanimous per curiam decision in Washington v. Trump, denying the government’s emergency appeal to stay the temporary restraining order/preliminary injunction issued against Executive Order 13769.

I’m sure we’ll have lots to say about these legal issues as things evolve, but for now a few quick reactions:

1. While the decision is a complete win for the plaintiffs for now, it leaves a lot undecided. It rests on the most solid, and narrowest, theory of state standing (proprietary interests in the state universities in Washington and Minnesota). It decides that some of the affected individuals are likely to have successful due process claims. It does not reach the discrimination claim.

Read more at: 

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

Faculty:  William Baude

Eric Posner: "Gorsuch v. Trump"

Thu, 02/09/2017 - 10:12
Gorsuch v. Trump Eric Posner Ericposner.com February 9, 2017

Last night, my wife and I debated how Trump would react to Gorsuch’s statement that Trump’s attacks on the judiciary were “demoralizing and disheartening.” There seemed to be only two possibilities: say nothing or rebuke his own appointee. Trump, not for the first time, flummoxed both of us. He instead called the senator who reported the comments a liar, even though a White House staffer had confirmed them.

This effort to cut the Gordian knot accomplishes nothing. Democratic senators will ask Gorsuch again and again at his confirmation hearings whether he said these words or not. Gorsuch will be forced to say that he did (and, I hope, will go farther and say that he condemns Trump’s statements). Trump will be forced once again to take a position on his nominee, either acquiescing with silence in his own nominee’s repudiation of Trump’s behavior, or attacking Gorsuch head on rather than (as I interpret Trump’s tweet) indirectly. (“He couldn’t have said that about me; therefore, the senator must be lying.”)

It’s worth thinking about the possible calculus that would lead to withdrawal of the nomination. More informed people than I declare such a course of action impossible. The political damage would be immense. But it would have some logic, at least under the non-Euclidean principles of the Trumpian universe.

Read more at: 

http://ericposner.com/gorsuch-v-trump/

Faculty:  Eric A. Posner

Geoffrey R. Stone on "Trump, The Supreme Court, And The Rights Of Gays And Lesbians"

Thu, 02/09/2017 - 10:10
Trump, The Supreme Court, And The Rights Of Gays And Lesbians Geoffrey R. Stone Huffington Post February 8, 2017

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future.

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead.

In this piece, the first of three I will post in the next week, I will briefly explore the history of homosexuality from the ancient world through the 1950s. Each of these posts, I should note, are drawn in part from my forthcoming book, Sex and the Constitution (now available on Amazon). I hope you will find this history instructive.

Read more at: 

http://www.huffingtonpost.com/entry/trump-the...?

Faculty:  Geoffrey R. Stone

Dennis J. Hutchinson on the Dangers of "Crying Wolf" over Neil Gorsuch

Thu, 02/09/2017 - 10:06
Crying wolf over Neil Gorsuch Dennis J. Hutchinson The Chicago Tribune February 8, 2017

The greatest risk to individual freedom now is excessive executive power. And the question for judges is, who can stand up to it and who will simply ratify it? 

Two principal arguments have emerged for opposing the confirmation of Neil Gorsuch to the U.S. Supreme Court. First, because Senate Republicans refused to provide a hearing to Judge Merrick Garland, President Barack Obama's nominee, Democrats should use whatever mechanism necessary to prevent a hearing for Gorsuch. The second argument is that Gorsuch is a judicial soul mate of the late Justice Antonin Scalia, whose seat he would assume, and thus is not in the "mainstream" of American legal thought.

I have known Neil Gorsuch for almost 25 years, although we are not close. Politically, I am a lifelong registered Democrat and have been for almost 50 years.

The first opposition argument amounts to "two wrongs make a right." That is simply a continuation of the shameless schoolyard level of debate that deeply marred the presidential campaign. Tit for tat may be politically tempting, but as a principle of evaluating judicial nominees, it goes nowhere, except as an excuse for all sides to ignore principle altogether.

Read more at: 

http://www.chicagotribune.com/news/opinion/co...

Faculty:  Dennis J. Hutchinson

Daniel Hemel on Washington v. Trump

Wed, 02/08/2017 - 10:55
Standing, Flip-Flops, and 4–4 Splits Daniel Hemel Medium February 7, 2017

Washington v. Trump may be headed to the Supreme Court — and with it the question of whether a state has standing to sue the federal government over enforcement (or nonenforcement, or misapplication) of immigration laws. 

Washington v. Trump may be headed to the Supreme Court — and with it the question of whether a state has standing to sue the federal government over enforcement (or nonenforcement, or misapplication) of immigration laws. As many others have observed, the standing question in Washington v. Trump is very similar to the standing question in Texas v. United States, the 26-state challenge to the Obama administration’s deferred action policy. There, Texas and its co-plaintiff states won in the Fifth Circuit, and an eight-member Supreme Court affirmed the Fifth Circuit’s decision by a 4–4 vote. As Roderick Hills writes, a “delicious irony” of Washington v. Trump is that the pro-immigration side is now arguing in favor of state standing while the anti-immigration side is arguing against — a reversal of roles from the Texas case.

As a formal matter, the Supreme Court’s 4–4 affirmance without opinion in the Texas case sets no precedent. Yet I think the Justices who voted to affirm in that case (i.e., the four who sided with Texas) must — if they are to be faithful to rule-of-law principles — vote in favor of state standing if and when they hear the Washington case. By contrast, the four Justices who voted to reverse in the Texas case have no obligation to vote against state standing in the Washington case, regardless of whether they can draw a normatively relevant distinction between the Texas case and the Washington case. This is so even if the Justices who voted to reverse in the Texas case did so on standing grounds. (We do not know which Justices voted which way in Texas, although most court-watchers will guess that it was the Republican-appointed Justices who voted with the states and the Democratic appointees who voted with the Obama administration.)

I recently posted on the ambiguity of the phrase “rule of law,” so I should be clear about what I mean by “rule-of-law principles.” I mean that a judge who applies rule R to party P in case 1 must apply rule R to party Q in case 2 unless there is a normatively relevant distinction between party P and party Q or between case 1 and case 2 that would justify the application of some other rule (~R) in case 2. This rule-of-law principle applies regardless of whether the decision in case 1 is precedential as a formal matter. Whether or not a decision sets a precedent is separate from whether the judges who issue that decision are obligated to act according to rule-of-law principles.

Read more at: 

https://medium.com/whatever-source-derived/st...

Faculty:  Daniel Hemel

Eric Posner on Washington v. Trump

Wed, 02/08/2017 - 10:46
Washington v. Trump Eric Posner ericposner.com February 7, 2017

Washington may win a partial or full victory this round, but I don’t think it can win in the long run.

Washington may win a partial or full victory this round, but I don’t think it can win in the long run.

Imagine that a judge had asked: “if we knew that Trump acted on anti-Muslim animus AND that the seven countries posed special security threats, what is the right outcome under the Establishment clause?”

Read more at: 

http://ericposner.com/washington-v-trump/

Faculty:  Eric A. Posner

William Baude on Originalism

Wed, 02/08/2017 - 10:32
Stephen Sachs on the Wrong Way to Criticize Originalism William Baude The Volokh Conspiracy February 7, 2017

Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court.

Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court. A key excerpt:

For example, originalism could easily lead to the following conclusions:
1. States can ban the purchase and sale of contraceptives.
2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.
4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
6. States can establish Christianity as their official religion.
7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions — and originalists have to do real work to explain why they reject them.

Mike Ramsey and Mike Rappaport have both responded, with Ramsey pointing out that “not much work is needed” to explain why most of these consequences will not come to pass.

Mike Rappaport, meanwhile, asks: “Even if Sunstein were right about this, what would that prove?” He argues that various types of nonoriginalism could “easily lead” to these conclusions as well. “In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be – which is a big part of nonoriginalism – nonoriginalism clearly would allow these results.” (There is much more here.)

That provoked an extended response from my sometime co-author Steve Sachs on Twitter, which he has cleaned up so that I could re-post it here.

The “Originalism Causes Bad Things” argument that Sunstein makes has always bothered me.

Read more at: 

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

Faculty:  William Baude

Eric Posner: "What Would a Constitutional Crisis Look Like?"

Tue, 02/07/2017 - 09:56
What Would a Constitutional Crisis Look Like? Eric Posner Ericposner.com February 6, 2017

Keith Whittington usefully identifies two types of constitutional crisis.

Keith Whittington usefully identifies two types of constitutional crisis:

  • Operational crises arise when important political disputes cannot be resolved within the existing constitutional framework. (p. 2101)
  • Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. (pp. 2109-10)

In the context of Trump, an operational crisis would occur if Trump directed border agents to disobey a judicial order blocking his temporary immigration ban. The agents would then need to choose whether to obey the president or the judge, with perhaps no clear sense of the proper thing to do. Trump has not issued such an order. But the sense that we may be on the brink of crisis arises because he has personally attacked Judge Robart, who issued a nationwide TRO, and has laid the groundwork for a more vigorous attack on the independence of the judiciary if a terrorist attack takes place in the future. If Trump successful cows the judiciary or the judiciary stands up to Trump, then a crisis might be averted. Whether the outcome is good or bad depends on your view of presidential power.

Read more at: 

http://ericposner.com/2320-2/

Faculty:  Eric A. Posner

Daniel Hemel on What Gorsuch Could Mean for Public-Sector Unions (Audio)

Tue, 02/07/2017 - 09:55
If Neil Gorsuch Joins Supreme Court, That Could Spell Trouble For Public-Sector Unions Dan Weissmann WBEZ February 6, 2017

“If I were a public-sector union right now, I would be very concerned that a Justice Gorsuch would be the fifth vote to over-rule,” says University of Chicago law professor Daniel Hemel.

In Illinois, public-sector workers don’t have to join the unions and pay dues, but they do pay somewhat-lower “fees” that are supposed to cover the union’s cost in negotiating and enforcing contracts.

That’s due to a 40-year-old Supreme Court precedent. A couple of years ago, the Supreme Court accepted a case challenging that precedent, but Antonin Scalia died before he got to vote on it. The court split four-four without touching the precedent.

But a case in Illinois-- initiated by governor Bruce Rauner-- seeks to challenge the same precedent. 

“If I were a public-sector union right now, I would be very concerned that a Justice Gorsuch would be the fifth vote to over-rule,” says University of Chicago law professor Daniel Hemel.

Hemel says the case’s timing makes it a realistic candidate for the court to hear soon. 

“This case could be argued first Monday in October, 2017,” he says.

Listen (1 minute of audio)

Read more at: 

https://www.wbez.org/shows/wbez-news/if-neil-...

Faculty:  Daniel Hemel

Jonathan Masur on Trump’s Executive Order on Regulation

Tue, 02/07/2017 - 09:27
The Deep Incoherence of Trump’s Executive Order on Regulation Jonathan S. Masur Whatever Source Derived February 7, 2017

Trump’s executive order has been widely condemned for its anti-regulatory bias. But it is not merely anti-regulatory — it is deeply confused at its core. 

President Trump’s “Executive Order on Reducing Regulation and Controlling Regulatory Costs” has received a fair amount of attention for its “2-for-1” formula: if an agency wishes to promulgate a new regulation, it must “identify at least two existing regulations to be repealed.” But there is an additional requirement built into the executive order that has received less attention, which is the creation of a “regulatory budget.” Under the terms of the order, “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero.” That is, for every dollar of costs produced by a new regulation, an agency must simultaneously eliminate one dollar of costs from some other regulation (likely by repealing the regulation entirely).

Trump’s executive order has been widely condemned for its anti-regulatory bias. But it is not merely anti-regulatory — it is deeply confused at its core. 

Read more at: 

https://medium.com/whatever-source-derived/th...

Faculty:  Jonathan S. Masur

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