Law School News

Updated: 1 hour 38 min ago

Julie A. Roin on the New Illinois Budget

Wed, 07/26/2017 - 09:17
Budget won't pull IL out of financial straits; Residents can 'look forward' to more taxes, U of C prof says Kacie Whaley Cook County Record July 24, 2017

Illinois ended its two-year budget hiatus earlier this month, but the state's financial plan still lacks the essentials needed to sustain it over the long term, according to a University of Chicago professor.

The budget, pushed through under the leadership of Democratic Ill. House Speaker Michael Madigan and Democratic State Sen. President John Cullerton, includes a 32 percent income tax increase, which sparked Republican Gov. Bruce Rauner to veto the spending plan and led Michael Lucci, the vice president of policy for the Illinois Policy Institute, to say that the plan will "further hamper economic growth."

Rauner's veto was overridden in the General Assembly , but the budget's implementation will not stop tax experts and critics from highlighting why the plan is problematic for Illinois.

Julie A. Roin, a Seymour Logan professor of law at the University of Chicago who specializes in tax policy, says that since the state is spending more money than it is collecting, the budget will serve as a short-term fix to a much deeper problem.

Read more at:

Faculty:  Julie A. Roin

Daniel Hemel: The Russia Sanctions Bill Is Unconstitutional — and Unnecessarily So

Wed, 07/26/2017 - 09:06
The Russia Sanctions Bill Is Unconstitutional — and Unnecessarily So Daniel Hemel Notice & Comment July 25, 2017

The bill to impose sanctions on Russia for meddling in the 2016 election—which passed the Senate by a 98-2 vote in June and passed the House by a 419-3 margin this afternoon—is unconstitutional. Unnecessarily unconstitutional. Indeed, the bill’s unconstitutionality is so gratuitous that one wonders whether it resulted from a mere oversight or whether it reflects a concerted effort to expand legislative authority at a time when the executive is reeling.

Larry Tribe wrote on Twitter this morning that “[s]omebody had better review” the Russia sanctions legislation to make sure it doesn’t include an unconstitutional legislative veto. He’s right—and it does. The problematic portion of the bill—which appears in the House and Senate versions—is numbered section 216 and titled “Congressional Review of Sanctions Imposed With Respect to the Russian Federation.” That section says that if the president seeks to waive or terminate sanctions against Russia, he must submit a report to the House and Senate, which then have 30 days to respond. The president cannot waive or lift sanctions during those 30 days without congressional approval.

So far so good. The Constitution gives Congress the power “[t]o regulate commerce with foreign nations”; Russia is a foreign nation; and this is a pretty plain-vanilla regulation. It’s the next part of section 216 where the bill runs into trouble.

Read more at:

Faculty:  Daniel Hemel

Martha C. Nussbaum on US and Indian Leadership: The Narcissist and the Ideologue

Tue, 07/25/2017 - 09:30
India & US, spot the difference Zoya Hasan and Martha C. Nussbaum The Indian Express July 24, 2017

After the recent meeting between Donald Trump and Narendra Modi, we would all be well advised to pause and reflect about these two men, so similar and yet so different. Both our countries have elected controversial populist strongmen who rode a wave of public anger to great and, to many, alarming, power. As scholars who study political systems both descriptively and normatively, we have long thought that cross-country comparisons yield insight. Donald Trump and Narendra Modi exemplify different types of the populist strong-man leader, with different potential consequences for democracy’s future.

Read more at:

Faculty:  Martha C. Nussbaum

Daniel Hemel on Constitutional Questions: Literal, Doctrinal, Predictive, Normative

Tue, 07/25/2017 - 09:23
The One Question Worth Asking Daniel Hemel Take Care July 25, 2017

Can a sitting president be indicted? Can he pardon himself? After he leaves the White House, can he be convicted of obstruction of justice for actions taken while in office? Can the granting of a pardon be an independent crime?

This post offers no answers to any of those questions. (My colleague Eric Posner and I discuss all of these issues in a longer draft article posted on SSRN.) My claim here is more modest: Much of the disagreement—though not all of it—on these and similar constitutional questions arises from the fact that when commentators offer answers, they are often answering one of four fundamentally different queries: a literal question, a doctrinal question, a predictive question, and a normative question. And of these four questions, only one really deserves our sustained attention.

Read more at:

Faculty:  Daniel Hemel

Omri Ben-Shahar on Teacher Certification

Mon, 07/24/2017 - 11:02
Teacher Certification Makes Public School Education Worse, Not Better Omri Ben-Shahar and Carl E. Schneider Forbes July 21, 2017

The key to successful education is to attract good teachers. We can try to do so by raising teachers’ salaries (as commonly advocated). But this strategy also seems to fail, partly because higher incomes go to both good teachers and bad, giving bad teachers as much incentive as good ones to become and remain teachers.

If not larger salaries, how about more rigorous screening? Every state requires that teachers be certified. Why not, then, just set higher certification standards for teachers so that we get better ones? This too sounds plainly right: just as we require doctors and lawyers to undergo specialized training and to pass examinations to qualify to practice, shouldn’t we make teachers do the same?

No. On the contrary. For two reasons. First, more stringent certification standards do little to keep out bad teachers. Second, such standards deter excellent prospects from entering teaching.

Read more at:

Faculty:  Omri Ben-Shahar

Hemel and Posner: If Trump Pardons, It Could Be a Crime

Fri, 07/21/2017 - 15:23
If Trump Pardons, It Could Be a Crime Daniel Hemel and Eric Posner The New York Times July 21, 2017

President Trump and his lawyers have discussed whether he could pardon his relatives and aides to undercut, or even end, the special counsel’s investigation into charges that his campaign colluded with Russia to influence the 2016 election, The Washington Post reported on Thursday night.

There’s no question that with a stroke of his pen, Mr. Trump can shield his son Donald Trump Jr., his son-in-law, Jared Kushner, and other close associates from potential prosecution. Despite the uproar that would set off, we know by now that Mr. Trump loves the grand gesture, whatever the consequences. Besides, his family is at stake.

While his authority to pardon is crystal clear, a crucial, threatening, legal ambiguity should make him think twice about using this authority.

Read more at:

Faculty:  Daniel Hemel Faculty:  Eric Posner

Mark Templeton at National Conference on Air and Water Pollution in India

Thu, 07/20/2017 - 13:14
Nature Doesn’t Need Us, We Need Nature: NGT Chairperson Anurit Kanti Businessworld July 20, 2017

The Energy Policy Institute at the University of Chicago (EPIC) and NITI Aayog on Friday (7 July) organized the National Conference on Air and Water Pollution which included multiple sessions revolving around the various facets of innovations in regulation, abatement, and monitoring air and water pollution. Anil Jain, Advisor-Energy, NITI Aayog, said, “EPIC bridges the gap between academics and research, which is new to the Indian discourse.”


The speakers included Shibani Ghosh (Fellow, Centre for Policy Research), Keshav Chandra (Environment Secretary, Government of Delhi), Shruti Bhardwaj (Joint Director, Ministry of Environment, Forest and Climate Change), Mark Templeton (Associate Clinical Professor of Law, University of Chicago Law School), Cynthia Giles (Former Assistant Administrator for Office of Enforcement and Compliance Assurance, US EPA), Akhila Swar (Senior Environmental Engineer OSPCB), Chirag Bhimani (Deputy Environmental Engineer, GPCB), Chandra Bhushan (Deputy Director General, CSE), Nathaniel Keohne (Vice President, Global Climate, Environmental Defense Fund) and Anant Sudarshan (India Director, EPIC).

Read more at:

Faculty:  Mark N. Templeton img_4753.jpg

Aziz Huq on the Constitutional Issues in Using Chicago Gang Database

Mon, 07/17/2017 - 09:35
A Closer Look At Chicago Police's Gang Database Patrick Smith WBEZ July 13, 2017

Some experts say there are potential problems with how the Chicago Police Department tracks suspected gang members.


University of Chicago law Professor Aziz Huq added that there is nothing illegal about police compiling a list of suspected gang members. But he sees a potential constitutional violation if the database is actually used for policing.

“It’s an open question of law whether inclusion in a gang database is a lawful basis for a street stop,” Huq said. “The idea that police can treat you as suspicious because police believe you are suspicious, that just seems circular to me. There is no independent corroboration.”

Read more at:

Faculty:  Aziz Huq

Aziz Huq on Procedural Justice and Police Reform (Audio)

Fri, 07/14/2017 - 09:51
Dignity, Not Deadly Force World Policy On Air July 14, 2017

Over the last 20 years, the U.S. government has given about $4.3 billion in surplus military equipment to state and local authorities. Now, conversations around #BlackLivesMatter and police brutality have amplified the call for less militaristic methods of policing. This week on World Policy On Air, University of Chicago professor Aziz Huq discusses procedural justice and police reform.

Read more at:

Faculty:  Aziz Huq

Brian Leiter on Ranking Universities

Thu, 07/13/2017 - 09:59
Academic Ethics: To Rank or Not to Rank? Brian Leiter The Chronicle of Higher Education July 12, 2017

QS recently released its World University Rankings for 2018. QS stands for "Quacquarelli and Symonds" but I like to joke that "Quirky Silliness" is a more apt description of the list, given the results.

In the two academic fields I know best — law and philosophy — there is no "world" scholarly enterprise, and so the rankings are entirely driven by the proportion of respondents from different regions of the world, plus the halo effect of university name recognition. (I have heard similar things from colleagues in other fields.) QS does not, however, disclose the geographic distribution of its survey respondents, so the extent of the distorting effect cannot be determined.

QS is merely one player in a new industry of ranking universities on a global scale. Times Higher Education, in Britain, now produces its own rankings. A third list, the ShanghaiRankings, was started by a university in Shanghai but is now independent. Each list has problems, but QS stands out for its dubious business practices.

Read more at:

Faculty:  Brian Leiter

Craig Futterman on the Van Dyke Trial and the Chicago Police Code of Silence

Wed, 07/12/2017 - 13:17
With long odds in Jason Van Dyke’s murder trial, the cover-up case offers hope Alan Pyke ThinkProgress July 12, 2017

“We average about one police shooting a week. Multiply that over 30 years,” University of Chicago Law School policing expert Craig Futterman said in an interview. “One thing that hasn’t changed in those 30 years is that 70 to 75 percent of the people shot by CPD have been African-American. I’m over 50, and never in my lifetime has an on-duty CPD officer been criminally prosecuted for killing a black man, woman or child.”

Van Dyke’s trial will be historic, then. But so will the newer, parallel case in which multiple CPD officers are accused of conspiring to cover for Van Dyke and concoct a false narrative about McDonald’s death that would justify their colleague’s decision to shoot the teenager more than a dozen times within 15 seconds of arriving.

In the end, the conspiracy case is an indictment of the department as a whole, while the murder case fits into the “bad apple” basket of solutions. Their outcomes naturally have different implications for the project of repairing relationships between Chicago’s people and their police.

“It’s difficult to weight these things against each other. Both are historic,” Futterman said. “The police code of silence is entrenched practice here. It’s nothing short of criminal, but it’s never been challenged as such. If we care about addressing that code of silence that has allowed so many officers to hurt so many people without fear of punishment, this matters. And it also matters if we care about ending the rash of police killings of young black men in Chicago.”

Read more at:

Faculty:  Craig B. Futterman

William Baude on the 'Plain Meaning Rule"

Wed, 07/12/2017 - 11:06
If the statutory language is ‘plain,’ judges will not consider ____ William Baude The Volokh Conspiracy July 10, 2017

A frequent maxim of statutory interpretation is the so-called “plain meaning” rule — that judges should consider legislative history, statutory purpose, the statute’s title and whatever else, if and only if the text’s meaning is unclear. When the text is clear or plain, by contrast, you begin and end with the text.

Now I am a big believer in statutory text, so for a long time I have accepted this kind of thing pretty uncritically, but I think it turns out to have a puzzling structure once you think about it. Why should so much hinge on whether the text is “plain” or not? Why not have analogous rules of law for plain texts and for less plain ones?

Ryan Doerfler and I now have an article reconstructing and critiquing this use of “plain” meaning, called The (Not So) Plain Meaning Rule, out in the University of Chicago Law Review.

Read more at:

Faculty:  William Baude

Martha C. Nussbaum's Jefferson Lecture: Powerlessness and the Politics of Blame

Wed, 07/12/2017 - 11:01
Martha C. Nussbaum The Jefferson Lecture in the Humanities July 12, 2017

The following lecture, which was delivered on Monday, May 1, 2017, at the John F. Kennedy Center for the Performing Arts, contains material from THE MONARCHY OF FEAR: A Philosopher Looks at Our Political Crisis, by Martha C. Nussbaum, to be published in 2018 by Simon & Schuster.

 At the end of Aeschylus’ Oresteia, two transformations take place in the city of Athens. One is famous, the other often neglected. In the famous transformation, Athena introduces legal institutions to replace and terminate the cycle of blood vengeance. Setting up a court of law with established procedures of evidence and argument, and a jury selected by lot from the citizen body of Athens, she announces that blood guilt will now be settled by law, rather than by the Furies, ancient goddesses of revenge.  But the Furies are not simply dismissed. Instead, Athena persuades them to join the city, giving them a place of honor beneath the earth, in recognition of their importance for the health of the city. 

Typically, Athena’s move is understood to be a recognition that the legal system must incorporate and honor the retributive passions. These passions themselves remain unchanged; they simply have a new house built around them. The Furies agree to accept the constraints of law, but they retain an unchanged nature, dark and vindictive.

That reading, however, ignores the second transformation, a transformation in the character of the Furies themselves.  As the drama begins, the Furies are described as repulsive and horrifying. They are said to be black, disgusting; their eyes drip a hideous liquid. Apollo even says they vomit up clots of blood that they have ingested from their prey. They belong, he says, in some barbarian tyranny where cruelty reigns.  

Nor, when they awaken, do the Furies give the lie to these grim descriptions. As Clytemnestra’s ghost calls them, they do not speak, but simply make animal noises, moaning and whining.  When they do begin to speak, their only words are “get him get him get him get him,” as close to a predator’s hunting cry as the genre allows. As Clytemnestra says: “In your dream you pursue your prey, and you bark like a hunting dog hot on the trail of blood.” If the Furies are later given poetic speech, as the genre demands, we are never to forget this initial characterization.

What Aeschylus has done is to depict unbridled resentment. It is obsessive, destructive, existing only to inflict pain and ill. (As the distinguished 18th c. philosopher Bishop Butler observes, “No other principle, or passion, hath for its end the misery of our fellow creatures.”) Apollo’s idea is that this rabid breed belongs somewhere else, surely not in a law-abiding democracy.

Unchanged, these Furies could not be at the foundation of a legal system in a society committed to the rule of law. You don’t put wild dogs in a cage and come out with justice. But the Furies do not make the transition to democracy unchanged. Until quite late in the drama, they are still their bestial selves, threatening to disgorge their venom on the land. Then, however, Athena persuades them to alter themselves so as to join her enterprise. “Lull to repose the bitter force of your black wave of anger,” she tells them. But of course that means a virtual change of identity, so bound up are they with anger’s obsessive force. She offers them incentives to join the democracy: a place of honor, reverence from the citizens—but only if they adopt a new range of sentiments, substituting future-directed benevolence for retribution. Perhaps most fundamental of all, they must listen to the voice of persuasion. They accept her offer, and express themselves “with gentle-tempered intent.” Each, they declare, should give generously to each, in a “mindset of common love.” Not surprisingly, they are transformed physically in related ways. They apparently assume an erect posture for the procession that concludes the drama, and they receive crimson robes from a group of citizen escorts. They have become Athenians, rather than beasts. Their very name is changed: they are now the Kindly Ones (Eumenides), not the Furies.

This second transformation is just as significant as the first one, indeed crucial to the success of the first one. Aeschylus shows that a democratic legal order can’t just put a cage around retribution, it must fundamentally transform it from something hardly human, obsessive, bloodthirsty, to something human, accepting of reasons, something that protects life rather than threatening it. The Furies are still needed, because this is an imperfect world and there are always crimes to be dealt with. But they are not wanted or needed in their original form. They must become instruments of justice and human welfare. The city is liberated from the scourge of vindictive anger, which produces civil strife. In its place, the city gets forward-looking justice.  

Like modern democracies, the ancient Greek democracy had an anger problem. Read the historians, and you will see some things that are not remote: individuals litigating obsessively against people they blame for having wronged them; groups blaming other groups for their lack of power; citizens blaming prominent politicians and other elites for selling out the dearest values of the democracy; other groups blaming foreign visitors, or even women, for their own political and personal woes.  

The anger that the Greeks—and, later, the Romans—knew all too well, was an anger full of fear at one’s own human vulnerability. The Roman philosopher Lucretius even says that all political anger is an outgrowth of fear—of the terror of each human infant, who comes into the world helpless, and, unlike all other animals, can do nothing on its own to get what it needs to stay alive. Lucretius sees that as life goes on, vulnerability continues or even increases, since the awareness of death hits us hard at some point, making us realize that we are helpless with respect to the most important thing of all. This fear, he says, makes everything worse, leading to political ills to which we’ll return. For now, however, let’s focus on anger. 

The Greeks and Romans saw a lot of anger around them. But as classical scholar William Harris shows in his fine book Restraining Rage, they did not embrace or valorize anger. They did not define manliness in terms of anger, and indeed, as with those Furies, tended to impute it to women, whom they saw as lacking rationality. However much they felt and expressed anger, they waged a cultural struggle against it, seeing it as destructive of human well-being and democratic institutions. The first word of Homer’s Iliad is “anger”—the anger of Achilles that “brought thousandfold pains upon the Achaeans.” And the Iliad’s hopeful ending requires Achilles to give up his anger and to be reconciled with his enemy Priam, as both acknowledge the frailty of human life. 

I believe the Greeks and Romans are right: anger is a poison to democratic politics, and it is all the worse when fueled by a lurking fear and a sense of helplessness. As a philosopher I have been working on these ideas for some time, first in a 2016 book called Anger and Forgiveness, and now in a book in progress called The Monarchy of Fear, investigating the relationship between anger and fear. In my work, I draw not only on the Greeks and Romans, but also on some recent figures, as I shall tonight. I conclude that we should resist anger in ourselves and inhibit its role in our political culture. 

That idea, however, is radical and evokes strong opposition. For anger, with all its ugliness, is a popular emotion. Many people think that it is impossible to care for justice without anger at injustice, and that anger should be encouraged as part of a transformative process. Many also believe that it is impossible for individuals to stand up for their own self-respect without anger, that someone who reacts to wrongs and insults without anger is spineless and downtrodden. Nor are these ideas confined to the sphere of personal relations. The most popular position in the sphere of criminal justice today is retributivism, the view that the law ought to punish aggressors in a manner that embodies the spirit of justified anger. And it is also very widely believed that successful challenges against great injustice need anger to make progress.

Still, we may persist in our Aeschylean skepticism, remembering that recent years have seen three noble and successful freedom movements conducted in a spirit of non-anger: those of Mohandas Gandhi, Martin Luther King, Jr., and Nelson Mandela—surely people who stood up for their self-respect and that of others, and who did not acquiesce in injustice. 

I’ll now argue that a philosophical analysis of anger can help us support these philosophies of non-anger, showing why anger is fatally flawed from a normative viewpoint—sometimes incoherent, sometimes based on bad values, and especially poisonous when people use it to deflect attention from real problems that they feel powerless to solve.  Anger pollutes democratic politics and is of dubious value in both life and the law. I'll present my general view, and then show its relevance to thinking well about the struggle for political justice, taking our own ongoing struggle for racial justice as my example. And I’ll end by showing why these arguments make it urgent for us to learn from literature and philosophy, keeping the humanities strong in our society.

The Roots of Anger: Rage, Ideas of Unfairness  

Let’s now return briefly to that baby, following Lucretius’ brilliant analysis. Babies at birth don’t have anger as such, because anger requires causal thinking: someone did something bad to me. Fairly soon, however, that idea creeps in: those caretakers are not giving me what I desperately need. They did this to me. It’s because of them that I am cold, wet, and hungry. Experiences of being fed, held, and clothed quickly lead to expectations, expectations to demands. Instinctual self-love makes us value our own survival and comfort. But the self is threatened by others, when they don’t do what we want and expect. Psychoanalyst Melanie Klein refers to this emotional reaction in infants as “persecutory anxiety,” since it is indeed fear, but coupled with an idea of a vague threat coming from outside. I would prefer to call it fear-anger or even fear-blame. 

If we were not helpless, we would just go get what we need. But since we are initially helpless, we have to rely on others. They don’t always give us what we need, and then we lash out, blaming them. Blame gives us a strategy: now I’ll enforce my will by raging and making noise. But it also expresses an underlying picture of the world: the world ought to give us what we demand. When people don’t do that, they are bad.  

Protest and blame are positive, in a sense: they construct an orderly purposive world in which I am an agent, making demands. My life is valuable, things ought to be arranged so that I am happy and my needs are met. That hasn’t happened, so someone must be blamed. But retributive anger all too often infects the thought of blame, and often even of punishment: the people we blame ought to suffer for what they have done. Psychologist Paul Bloom has shown that retributive thinking appears very early in the lives of infants, even before they begin to use language. Infants are delighted when they see the “bad person”—a puppet who has snatched something from another puppet—beaten with a stick. Bloom calls this an early sense of justice. I prefer to call it the internal Furies that inhabit us all, and that are not securely linked to real justice. The infants’ idea looks like a version of the lex talionis: an eye for an eye, pain for pain.  It’s not hard to imagine that the crude idea of proportional payback has an early, perhaps an evolutionary, origin. It is a leap to call this an idea of justice, and I think we should not make this leap.

Defining Anger

Let’s now fast forward to human adulthood. People now experience and express not just primitive anger, but full-fledged anger. But what is anger? Philosophers are fond of definitions, which are useful to clear our heads, in this case helping us separate the potentially promising parts of anger from those that lead to nothing but trouble. And, back to the Greeks, let’s talk about Aristotle’s definition, since more or less all the definitions of anger in the Western philosophical tradition are modeled on it. (Those in Hindu traditions are very similar.)

According to Aristotle, anger is a response to a significant damage to something or someone one cares about, and a damage that the angry person believes to have been wrongfully inflicted. Aristotle adds that although anger is painful, it also contains within itself a pleasant hope for payback or retribution. So: significant damage, pertaining to one’s own values or circle of cares, and wrongfulness. Those two elements seem both true and uncontroversial, and they have been validated by modern psychological studies. Those parts of anger can go wrong in specific and local ways: we might be wrong about who did the bad thing, or how significant it was, or whether it was done wrongfully (rather than accidentally). But they are often on target.

More controversial, certainly, is the idea that the angry person wants some type of retribution, and that this is a conceptual part of what anger is. All the Western philosophers who talk about anger include this wish as a conceptual element in anger. Still, we need to pause, since it is not obvious. We should understand that the wish for retribution can be a very subtle wish: the angry person doesn’t need to wish to take revenge herself. She may simply want the law to punish the wrongdoer; or even some type of divine justice. Or she may more subtly simply want the wrongdoer’s life to go badly in future – hoping, for example, that the second marriage of her betraying spouse is a dismal failure. I think if we understand the wish in this broad way, Aristotle is right: anger does contain a sort of strike-back tendency, and that is what differentiates it from compassionate grieving.  Contemporary psychologists who study anger empirically agree with Aristotle in seeing this double movement in it, from pain to hope.   

We should understand, however, that the two parts of anger can come apart. We can feel outrage at the wrongfulness of an act or an unjust state of affairs, without wanting payback for the wrong done to us. I’ll be arguing that the outrage part is personally and socially valuable when our beliefs are correct: We need to recognize wrongful acts and protest them, expressing our concern for the violation of an important norm. And there is one species of anger, I believe, that is free of the retributive wish: its entire content is “How outrageous that is. Something must be done about that.” I call this “TransitionAnger,” because it expresses a protest, but faces forward: it gets to work finding solutions rather than dwelling on the infliction of retrospective pain.

Take parents and children. Parents often feel that children have acted wrongfully, and they are outraged. They want to protest the wrong, and somehow to hold the child accountable. But they usually avoid retributive payback. They rarely think (today at least), “now you have to suffer for what you have done,” as if that by itself was a fitting response. Instead, they ask themselves what sort of reaction will produce future improvement in the child. Usually this will not be a painful payback, and it certainly won’t obey the lex talionis, “an eye for an eye.” If their child hits a playmate, parents do not hit their child as if that were “what you deserve.” Instead, they choose strategies that are firm enough to get the child’s attention, and that express clearly that and how what the child did was wrong. And they give positive suggestions for the future, how to do things differently. So, loving parents typically have the outrage part of anger without the payback part—where their children are concerned. This will be a clue to my positive proposal for democratic society.

Retributive wishes, however, are a deep part of human nature, fostered by some parts of the major religions and by many societal cultures, although they have been denounced by religious and social radicals from Jesus and the Buddha to Mohandas Gandhi. They may have served us well in a pre-social condition, deterring aggression. But the idea that pain is made good or assuaged by pain, though extremely widespread, is a deceptive fiction. Killing the killer does not restore the dead to life, although the demand for capital punishment is endorsed by many families of victims as if it did somehow set things to rights. Pain for pain is an easy idea. But it is a false lure, creating more pain instead of rectifying the problem. As Gandhi said, “An eye for an eye makes the whole world blind.”

This wish for payback arises in all sorts of situations. Take divorce. Betrayed spouses often feel entitled to seek punitive divorce settlements and child custody arrangements, as if that somehow were their due, and as if punitive payback somehow restored the balance of power or rescued their damaged dignity. But in real life the function of payback is usually far less benign. Two people become locked in a struggle for pain, focused on the past, and often inflicting great collateral damage on children and on friends and family. In the end, the betrayer may get “his comeuppance,” but what does that achieve? Typically it does not improve the litigant’s life going forward. By focusing obsessively on the past she becomes closed to new possibilities, and she often becomes bitter and unpleasant. Retaliation is ugly, as Aeschylus shows us in his portrait of the Furies. What the payback-seeker wants is future happiness and self-respect. Payback by itself never achieves that, and it usually makes the world a lot worse for all.

But wait a minute. We all agree that wrongful acts, if they are serious enough, should be punished, and punishment is typically painful. Yes, we should agree that punishment is often useful: but why and how? We might see punishment in a retributive spirit, as payback for what has already happened. That is the attitude I have been criticizing, and it does great social harm, leading to a gruesome pile-on-the-misery strategy, as if it really compensated for the damages of crime.  But there’s a better attitude, more like that of the good parent in my example: We might try to look to the future and produce a better society, using punishment to express the value we attach to human life and safety, to deter other people from committing that crime, and, we hope, deterring that individual from committing another crime, or at least incapacitating him.   

If we think this way, however, trying to improve the future, we probably will have a lot of other thoughts before we get to punishment. Like that good parent, we will think that people don’t do wrong nearly as often, if they are basically loved and respected, if they have enough to eat, if they get a decent education, if they are healthy, and if they foresee a future of opportunity. So thinking about crime will lead us in the direction of designing a society in which people have fewer incentives to commit crime. When they do, despite our best efforts, we take that seriously, for the sake of the future.

There is one more part to Aristotle’s definition. He says that anger is always a response not to any old damage, but only to the type he calls a “down-ranking.” This does not seem to be true all the time. I can get angry at wrongs done to others, without thinking of them as a “down-ranking” of myself. Later philosophers hold on to the other parts of Aristotle’s definition but drop this restriction: anger can be a response to any wrongful act, not just a status injury. Still, let’s hold on to Aristotle’s idea, for it does cover surprisingly many cases of anger, as empirical researchers emphasize.

The status idea is important because it is the one case, I believe, where payback gives you what you want. If what you are focused on is not the murder, or theft, or rape itself, but only the way it has affected your relative status in the world, then by pushing the wrongdoer relatively lower, you really do push yourself relatively higher. And if relative status is all you care about, you needn’t be worried that the underlying harms caused by the wrongful act (murder, rape, theft) have not been made good. If you’re thinking only about relative status, then, payback sort of makes sense. Many people do think this way, and that may help explain why payback is so popular and why people do not quickly conclude that it is an empty diversion from the task of fixing the future. 

What is wrong with the status idea? Focus on relative status was common in ancient Greece: indeed it explains Achilles’ anger when Agamemnon insults him by taking “his” woman away. Focus on status was common, too, at the founding of the United States, as Lin-Manuel Miranda’s brilliant Hamiltonreminds us all. Elaborate codes of honor and status led, indeed, to constant status-anxiety and to many duels responding to purported insults. What’s wrong with the obsession with status is that life is not all about reputation, it is about more substantial things: love, justice, work, family. We all know people today who are obsessed with what other people think of them, who constantly scan the Internet to see who has been insulting them. Social media may encourage this obsession, as people diss each other, count the number of “likes” some post of theirs has garnered, and so forth. As we live more and more in the eyes of others, more and more of our lives come in for rating, up or down.  But isn’t this obsession with status a sign of insecurity? And doesn’t it increase insecurity, since that person who scans the world for signs of disfavor is certain to find some? Equally important, isn’t the obsession with status a diversion from more important values? Achilles had to learn how bad it was to destroy thousands of people on account of one insult; Aaron Burr never learned much, it appears, but his example shows us what we forfeit when we become obsessed with being “in the room where it happens.”

Notice that obsession with relative status is different from a focus on human dignity or self-respect, since dignity belongs to everyone, and people are equal in dignity (at least this is how we ought to think and usually do think), so dignity does not establish a hierarchy, and nobody would be tempted to suppose that inflicting humiliation on someone else would affect my human dignity. Dignity, unlike reputation, is equal and inalienable. 

Three Errors in Anger

We’re now ready to see three ways anger can lead us astray.

  1. The Obvious Errors. Anger can be misguided, and guide us badly, if it is based on wrong information about who did what to whom, about whether the bad act was really done wrongfully (with some sort of bad intent) rather than just by accident, and also if it is based on a confused sense of importance. Aristotle mentions people who get angry when someone forgets their name, and this familiar example is a case of overestimating the importance of what the person did. (Probably also a case of getting intention wrong.) Since we’re often hasty when we are angry, these errors occur often.
  2. The Status Error. We also go wrong, I claim, if we think relative status is hugely important and focus on that to the exclusion of other things. This error is really a case of mistaking the importance of a particular value, but since it is so common and such a major source of anger, we have to single it out and give it a separate number.
  3. The Payback Error. Finally, we very often go wrong when we permit deeply ingrained retributive thoughts to take over, making us think that pain wipes out pain, death murder, and so forth. In short, when we think that inflicting pain in the present fixes the past. We go wrong because that thought is a kind of irrational magical thinking, and because it distracts us from the future, which we can change, and often should. 
The Fourth Error in Anger: Helplessness and the 'Just World'

All these errors are common, not least in the political life. We get hold of the wrong story about who did what, or we blame individuals and groups for a large systemic problem that they didn’t cause. We overestimate trivial wrongs and also, sometimes, underestimate important ones. We obsess about our own relative status (or that of our group). We think that payback will solve the problems created by the original offense, even though it does not.  

But there is more. We impute blame, often, even when there is no blame to be apportioned. The world is full of accidents. Sometimes a disaster is just a disaster. Sometimes illness and hardship are just illness and hardship. The medical profession can’t keep us completely safe from disease and death, and the wisest and most just social policies will not prevent economic woes arising from natural disasters. But in our monarchical way we expect the world to be made for our service. It gratifies our ego, and is in a deep sense comforting, to think that any bad event is someone’s fault. The act of pinning blame and pursuing the “bad guy” is deeply consoling. It makes us feel control rather than helplessness.

Psychologists have done a lot of research on people’s instinctual views of the way the world works, and they find that people have a deep-rooted need to believe that the world is just. One aspect of this “just world hypothesis” is the tendency to believe that people who are badly off cause their own misery by laziness or bad conduct. But another related aspect of this “just world” belief is the need to believe that when we encounter loss and adversity it isn’t just loss, it is someone’s wrongdoing, and that we can somehow recoup our loss by punishing the “bad guy.” 

Your parent dies in the hospital. It is very human to believe that “the doctors did it,” and to deflect one’s grief into malpractice litigation. Your marriage falls apart. Often there is fault somewhere, but sometimes it can’t be easily identified. Things do just fall apart. Still, it is human to fix blame on the “bad” spouse and try to crush that person with litigation. It makes life look more intelligible, the universe more just.

Economic woes are sometimes caused by an identifiable person or persons’ malfeasance, and sometimes by clearly stupid or unfair policies; but more often their cause is obscure and uncertain. We feel bad saying that: it makes the world look messy and ungovernable. So why not pin the blame—as the Greeks did—on groups that are easy to demonize: in place of their rhetorical category of “barbarians,” we might focus blame on immigrants, or women entering the workforce, or bankers or rich people. The Salem witch trials were once thought to be the result of group hysteria among adolescent girls. But now we know that a preponderant number of the witch-blamers were young men entering adulthood, afflicted by the usual woes of an insecure colony in a new world: economic uncertainty, a harsh climate, political instability. How easy, then, to blame the whole thing on witches, usually elderly unpopular women, who can easily be targeted and whose death brings a temporary satisfaction to the mind.

Our earliest fairy tales have this structure. Hansel and Gretel wander into the woods to search for food. The problem is hunger, compounded by the fact that their parents have to work at menial jobs and have no leisure to care for the children. But the story tells us that these very real problems are unreal, and that the real problem is a witch who lives in the woods, and turns little children into gingerbread.  Red Riding Hood goes to visit her grandmother, walking a long distance alone. The real problem in this story is aging and lack of care. The family lives far away, and grandmother is not doing well. But quickly the story deflects our attention. The problem is not this difficult human problem at all, requiring a structural solution. It is a single wolf who has broken into grandmother’s house. In both stories, when the ugly villain is killed the world is just fine. Our love of an orderly universe makes these simple fictional solutions tempting. It’s hard to wrap our minds around complicated truths, and it’s far easier to incinerate the witch than to live with hope in a world that is not made for human delectation.

Anger, Child of Fear

Anger is a distinct emotion with distinctive thoughts. It looks manly and important, not at all timorous. Nonetheless, it is the offspring of fear. How so?

First, if we were not plagued by great vulnerability, we would probably never get angry. Lucretius imagined the gods as beings who are perfect and complete, beyond our world, and he said, “They are not enslaved by gratitude, nor are they tainted by anger.” If anger is a response to a significant damage inflicted by someone else on you or someone or something you care about, then a person who is complete, who cannot be damaged, has no room for anger. (Judeo-Christian pictures of divine anger imagine God as loving humans and as deeply vulnerable to their misdeeds.)

Some moral reformers have urged us to become like Lucretius’ gods. The Greek Stoics thought that we should learn not to care at all about the “goods of fortune,” that is, anything that can be damaged by anything outside our own control. Then we would lose fear, and in the bargain we’d lose anger. Philosopher Richard Sorabji has shown that Gandhi’s views were very close to those of the Stoics.  

The problem, however, is that in losing fear we also lose love. The basis of both is a strong attachment to someone or something outside our control. There is nothing that makes us more vulnerable than loving other people, or loving a country. So much can go wrong. In one half-year the Roman philosopher and politician Cicero lost the two things he loved most in the world, when his daughter Tullia died in childbirth and the Roman Republic collapsed into tyranny. Even though his friends thought his grief excessive and urged him to be a proper Stoic, he told his best friend Atticus that he could not stop grieving, and, what’s more, he didn’t think he ought to. Taking the measure of love fully means suffering. So the solution that wipes out both fear and anger with one stroke is not one we should accept. Keeping love means keeping fear. 

And though that does not necessarily mean keeping anger, it makes it a lot harder to win the struggle with anger. Fear is not only a necessary precondition for anger, it is also a poison to anger, feeding the four errors. When we are afraid, we jump to conclusions, lashing out before we have thought carefully about the who and the how.  When problems are complex and their causes poorly understood, as economic problems tend to be, fear often leads us to pin blame on individuals or groups, conducting witch-hunts rather than pausing to figure things out. 

Fear also feeds obsession with relative status: when people feel bigger than others, they think they can’t be destroyed. But when people protect their vulnerable egos by thoughts of status, they can easily be goaded into anger, since the world is full of insults and slights. Indeed, Lucretius traces all status-competition to fear, arguing that it is a way of soothing ourselves: by putting others down we make ourselves feel powerful.   

And fear also feeds the focus on payback, since vulnerable people think that getting back at wrongdoers, even obliterating them, is a way of reestablishing lost control and dignity. Lucretius even traces all wars to fear: Feeling insecure, we rage against what threatens us, and seek to obliterate it. He omits the obvious possibility that war may be caused by a reasonable reaction to a genuine threat to our safety and our values. So we should not accept his analysis fully. I am no pacifist, nor were my primary heroes of non-anger, Martin Luther King, Jr. and Nelson Mandela. Gandhi, I think, made a large mistake by endorsing total pacifism. But even just wars, such as I believe the Second World War to have been, are often marred by zeal for the blood of the aggressor, and one could certainly argue that episodes such as the bombing of Dresden were motivated by payback rather than sound policy. Great leaders understand that we need to retain and fortify the spirit of determined protest against wrongdoing, without comforting ourselves with retributive thinking. The brilliant speech in which Winston Churchill said, “I have nothing to offer but blood, toil, tears and sweat,” refers to danger, to struggle, and to a willingness to accept great pain in order to preserve democratic values. It is conspicuous for its utter lack of retributivism. Churchill does NOT say that paying back the Nazis will remove the threat to freedom. Freedom is beautiful, and we must be prepared to suffer for it, but we must focus on defending what we love rather than “disgorging [our] venom on the land,” as Aeschylus’ Furies put it. Churchill’s speech is of a piece with the best Allied aims to rebuild Germany post-war, and we can now see the wisdom of that course, as Germany is among our most valuable allies.

Finally, helplessness, and the fear that goes with it, lead to the reflex in which we pin blame on someone in order to feel less buffeted by fortune and more in control. Even a long and difficult fight (a protracted malpractice lawsuit, divorce litigation lasting many years) is often psychologically preferable to accepting loss. 

Protest without Payback

What’s the alternative? We can keep the spirit of determined protest against injustice while letting go of the empty fantasy of payback. This forward-looking strategy includes protesting wrongdoing when it occurs, but not imputing wrongdoing where there is, instead, the murky thicket of the global economy to manage, outsourcing and automation to reconcile with our citizens’ welfare. Never seizing hold of blame as a substitute for a feeling of powerlessness, but also not yielding to despair. Even when we are confident in imputing wrongdoing to an individual or a group, we can still firmly refuse payback, but look to the future with hope, choosing strategies designed to make things better rather than to inflict the maximum pain. 

To conclude, I want to study just one example of protest without payback: the ideas of Martin Luther King, Jr., who contributed so much to our society’s ongoing struggle with racism and its search for justice. King always said that anger had a limited usefulness, in that it brought people to his protest movement, rather than sitting in despair. But once they got there, the anger had to be “purified” and “channelized.” What he means is that people must give up the payback wish and yet keep the spirit of justified protest. Instead of retribution, they need hope, and faith in the possibility of justice. In an essay of 1959, he says that the struggle for integration will continue to encounter obstacles, and that these obstacles can be met in two very different ways:

One is the development of a wholesome social organization to resist with effective, firm measures any efforts to impede progress. The other is a confused, anger-motivated drive to strike back violently, to inflict damage. Primarily, it seeks to cause injury to retaliate for wrongful suffering. . . . It is punitive—not radical or constructive. 

King, of course, was characterizing not just a deep-seated human tendency, but the actual ideas and sentiments of Malcolm X, as he understood them.  

King insisted constantly that his approach did not mean acquiescence in injustice: there is still an urgent demand, there is still a protest against unjust conditions, in which the protester takes great risks with his or her body, in what King called “direct action.” Still, the protester’s focus must turn to the future that all must work to create together, with hope and faith in the possibility of justice.

King, in short, favors and exemplifies what I’ve called Transition-Anger: the protest part of anger without the payback. To see this better, let’s study the sequence of emotions in his “I have a dream” speech. King begins, indeed, with what looks like a summons to anger: he points to the wrongful injuries of racism, which have failed to fulfill the nation’s implicit promises of equality. One hundred years after the Emancipation Proclamation, “the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination.” 

The next move King makes is significant: for instead of demonizing white Americans, he calmly compares them to people who have defaulted on a financial obligation: “America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’” This begins the shift to what I’ve called Transition-Anger: for it makes us think ahead in non-retributive ways. The essential question is not how whites can be humiliated, but how can this debt be paid, and in the financial metaphor the thought of destroying the debtor is not likely to be central. 

The future now takes over, as King focuses on a time in which all may join together in pursuing justice and honoring obligations: “But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation.” No mention, again, of torment or payback, only of determination to ensure the protection of civil rights at last. King reminds his audience that the moment is urgent, and that there is a danger of rage spilling over: but he repudiates that behavior in advance. “In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. . . . Again and again, we must rise to the majestic heights of meeting physical force with soul force.”

So, the “payback” is reconceived as the vindication of civil rights, a process that unites black and white in a quest for freedom and justice. Everyone benefits: as many white people already recognize, “their freedom is inextricably bound to our freedom.”  

King next repudiates a despair that could lead to the abandonment of effort. It is at this point that the most famous section of the speech, “I have a dream,” takes flight. And of course, this dream is one not of retributive punishment but of equality, liberty, and brotherhood. In pointed terms, King invites the African-American members of his audience to imagine brotherhood even with their former tormentors:

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. . . .

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words “interposition” and “nullification” – one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

There is indeed outrage in this speech, and the outrage summons up a vision of rectification, which might easily take a retributive form. But King gets busy right away reshaping retributivism into work and hope. For how, sanely and really, could injustice be made good by retributive payback? The oppressor’s pain and lowering do not make the afflicted free. Only an intelligent and imaginative effort toward justice can do that.  

It might seem strange to compare King to Aeschylus, though it’s really not strange at all, given King’s vast learning in literature and philosophy. He’s basically saying the same thing: democracy must give up the empty and destructive thought of payback and move toward a future of legal justice and human well-being. King’s opponents portrayed his stance as weak. Malcolm X said sardonically that it was like coffee that has had so much milk poured into it that it has turned white and cold, and doesn’t even taste like coffee. But that was wrong. King’s stance is strong, not weak. He resists one of the most powerful of human impulses, the retributive impulse, for the sake of the future. One of the trickiest problems in politics is to persist in a determined search for solutions, without letting fear deflect us onto the track of anger’s errors. The idea that Aeschylus and King share is that democratic citizens should face with courage the problems and, yes, the outrageous injustices that we encounter in political and social life. Lashing out in anger and fear does not solve the problem; instead, it leads, as it did in both Athens and Rome, to a spiral of retributive violence.

Lucretius tells a grim tale of human anger and fear gone wild. He imagines a world not unlike his own, in which insecurity leads to acts of aggression, which do not quiet insecurity. (At the time when he wrote, the Roman Republic was imploding, and insecurity, mounting everywhere, would shortly lead to tyranny.) In an effort to quiet fear, he imagines, people get more and more aggressive—until they think up a new way to inflict maximum damage on their enemies: putting wild beasts to work in the military.  

They even tried out bulls in the service of war.

They practiced letting wild boars loose against their enemies.

They even used fierce lions as an advance guard, equipped with a special force of armed and ferocious trainers To hold them in check and keep them in harness.

It was no use.

The lions, hot with blood, broke ranks wildly.

Trampled the troops, tossing their manes. 

In a poetic tour de force Lucretius now imagines the carnage the animals unleash. Then he pulls back. Did this really happen?, he says. Maybe it happened in some other world out in space. And what, he says, did those fictional people want to accomplish? To inflict great pain on the enemy—even if it meant that they would perish themselves! 

Lucretius’ point is that our retributive emotions are those wild beasts. People may think anger powerful, but it always gets out of hand and turns back on us. And, yet worse, half the time people don’t care. They’re so deeply sunk in payback fantasies that they’d prefer to accomplish nothing, so long as they make those people suffer.  His grim science-fiction fantasy reminds us that we’ll always defeat ourselves so long as we let ourselves be governed by fear, anger, and the politics of blame.

There is a better alternative. Aeschylus knew it, and King both knew and lived it. Making a future of justice and well-being is hard. It requires self-examination, personal risk, searching critical arguments, and uncertain initiatives to make common cause with opponents—in a spirit of hope and what we could call rational faith. It’s a difficult goal, but it is that goal that I am recommending, for both individuals and institutions.

My argument has drawn on three prominent fields in the Humanities. For evocative images that illuminate political problems and the path to political goals, I have turned to literature. In order to show how such goals have already been pursued in our own place and time, I have turned to history. But above all, since I am a philosopher, I have turned to philosophy for critical analysis and structured arguments about justice and well-being. Philosophy does not compel, or threaten, or mock. It doesn’t make bare assertions, but, instead, sets up a structure of thought in which a conclusion follows from premises the listener is free to dispute. In that way it invites dialogue, and respects the listener. Unlike the over-confident politicians that Socrates questioned (Euthyphro, Critias, Meletus), the philosophical speaker is humble and exposed: his or her position is transparent and thus vulnerable to criticism. (His or her, since Socrates said he’d like to question women, if only in the afterlife, and Plato actually taught women in his school!) 

OK: You’ve seen the steps in my argument: now, any one of you may jump in and differ with me, as Socrates recommended. That’s how democracy learns, and makes progress. I believe democracy urgently needs all three of the humanistic fields I’ve mentioned, which complement one another. All three offer practice in skills of mind and heart that are essential, especially in our current time of fear, resentment, and division, if our conversation with one another is to be respectful deliberation. But above all, to solve the political problem of anger, democracy needs to learn from, and practice, philosophical dialogue, a way of conversing—and differing—about important issues that substitutes respect for arrogance, and patient probing for overconfident boasting. If philosophical reason—and its Aeschylean partner, legal reasoning and the rule of law—prevail over anger, we may attain the result that Aeschylus imagines at the conclusion of his drama:  

That in plenty the blessings

That make life prosperous

May be made to burgeon from the earth

By the sun’s radiant beam. 


1 For comments that have helped me a lot, I’m very grateful to Douglas Baird, Ro Khanna, Brian Leiter, Saul Levmore, Richard McAdams, Charles Nussbaum, Laura Weinrib, and David Weisbach. Their generosity exemplifies the spirit of critical dialogue that I talk about at the end of this lecture.  

Faculty:  Martha C. Nussbaum

Photo of Nussbaum delivering the Jefferson Lecture is by Cheriss May, Ndemay Media Group.

Video of the lecture is available here. 


Anup Malani Describes New System to Map Pollution in India's Second-Longest River

Tue, 07/11/2017 - 13:27
Sensor network to map and predict pollution, effluents in Godavari Jacob Koshy The Hindu July 11, 2017 Ganga may be the focus of the government’s river-cleaning efforts, but a group of U.S. researchers is working on a system to map undulating pollution trends in the Godavari, India’s second longest river.

Using a mix of methods, including satellite-monitoring, traversing stretches of the river to collect water samples and using special sensors to measure bacterial and chemical pollution, the researchers are trying to develop a cost-effective forecast system.

The team’s long-term objective is to be able to inform State officials and citizens of a probable spike in, say, levels of dangerous microbes or effluents, similar to weather and air pollution forecasts. That apart, said Anup Malani, Professor of the University of Chicago Law School, it is to be able to access “raw data” that could be used to inform the efficacy of a proposed faecal sludge treatment plant and whether behavioural interventions — including incentives or punishments — to restrict activities that pollute the river could actually work. “We’ve had debates with town planners who told us that all the pollution gets washed away… Is that true? We need to find out,” Mr. Malani, who is also co-founder of the International Innovation Corps, told The Hindu. “That would help us know whether interventions are needed only up-river or along various stretches.”

The project started eight months ago and has so far identified two “hotspots” of pollution, which Mr. Malani declined to reveal, saying he would first inform the Andhra Pradesh government about them. The sampling exercise, being done along a portion of the 1,400-km river spanning Rajamundhry (East Godavari district) and Kovvur, Narsapur and Palakol (all in West Godavari), measures parameters such as total dissolved salts, nitrate, pH, temperature, turbidity and electrical conductivity. These are relayed to a website called Thoreau, a wireless sensing network maintained at the University of Chicago to map environmental parameters, for analysis. Some river attributes such as microbial levels require to be measured in laboratories, though the team hopes eventually to be able to use low-cost sensors that measure them, too, in real time.

Read more at:

Faculty:  Anup Malani Related Coverage:

Prof. Anup Malani and IME Prof. Supratik Guha to Pioneer a Water-Quality Sensing Network on India’s Second Longest River

Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case

Tue, 07/11/2017 - 09:48
The research that convinced SCOTUS to take the Wisconsin gerrymandering case, explained Nicholas Stephanopoulos Vox July 11, 2017

In June, the Supreme Court agreed to hear its first partisan gerrymandering case in more than a decade. This case, Gill v. Whitford, involves a challenge to the district plan that Wisconsin passed for its state house after the 2010 Census. The case also involves a quantitative measure of gerrymandering — the efficiency gap — that has created a bit of a buzz. One reporter compares it to a “silver-bullet democracy theorem” and a “gerrymandering miracle drug.” Another speculates that it may be the “holy grail of election law jurisprudence.”

I’m an attorney in Whitford and the co-author of an article advocating the efficiency gap, so I appreciate the attention the metric is getting. But I still think much of this interest is misplaced. The efficiency gap is, in fact, a simple and intuitive measure of gerrymandering, and I’ll explain why in a minute. But the true breakthrough in Whitford isn’t that plaintiffs have finally managed to quantify gerrymandering. Rather, it’s that they’ve used the efficiency gap (and other metrics) to analyze the Wisconsin plan in new and powerful ways. These analyses are the real story of the litigation — not the formulas that enabled them.

For more than three decades, the Supreme Court has recognized that severe partisan gerrymandering can violate the Constitution. But until Whitford, not a single federal court had struck down a map on this basis. Early litigants lost because the standard the courts used prior to 2004 was so demanding it could never be met. Since 2004, the courts haven’t even been able to agree on a test, rendering most lawsuits hopeless. However, in a 2006 case, five justices expressed interest in statistical metrics that show how a plan benefits (or handicaps) a given party. The efficiency gap is such a metric.

To grasp the efficiency gap, you have to realize that partisan gerrymandering is always carried out in one of two ways. Either a party cracks (that is, splits) the other party’s voters among many districts in which their preferred candidates lose by relatively narrow margins. Or a party packs the other side’s voters into a few districts in which their preferred candidates win by overwhelming margins.

Both cracking and packing produce wasted votes that don’t contribute to a candidate’s election. In the case of cracking, these are all of the votes cast for a losing candidate. In the case of packing, they’re all of the votes cast for a winning candidate in excess of the 50 percent (plus one) needed for victory. The efficiency gap is simply one party’s total wasted votes, minus the other party’s total wasted votes, divided by all of the votes cast in the election.

Read more at:

Faculty:  Nicholas Stephanopoulos

America: The Jesuit Review on Stone's 'Sex and the Constitution'

Tue, 07/11/2017 - 08:59
‘A great and mysterious force’ Daniel J. Morrissey America: the Jesuit Review July 11, 2017

The United States Constitution, the supreme law of our land, is a capacious document. As Justice William Brennan said, it is full of majestic generalities that gain their meaning through the test of time. Brennan was appointed to the Supreme Court in 1956 by President Dwight D. Eisenhower, a Republican . At that time he became the only Catholic on the court, and in his initial year there he was assigned to write the court’s opinion in its first case deciding what material could legally be prohibited as obscene. Brennan began it with this significant observation: “Sex, a great and mysterious force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.”

In the spirit of Justice Brennan’s insights, Geoffrey R. Stone, a professor and former dean at the University Chicago Law School, has produced an exhaustive study on the history of human attitudes about sex and how they have shaped American law. Since religion, and Catholicism in particular, are a major part of that story, it is perhaps strangely fitting that Brennan and another Catholic justice still on the court today, Anthony Kennedy, have been key figures in constructing that jurisprudence.

By an expansive interpretation of the First Amendment, Brennan was responsible in his early opinion on obscenity for sharply curtailing what could be forbidden in the field of sexual expression. In addition, he later joined the majority of the court in its 1973 decision in Roe v. Wade that prohibited the criminalization of abortion. For that Brennan was excoriated by a number of Catholic leaders, some calling for his excommunication.

Stone’s long tale recounts much about the church’s restrictive attitudes on sexual matters from St. Augustine onward. For instance, Well into the 20th century, while other Christian denominations liberalized their views on artificial birth control, Catholic leaders not only considered this activity gravely sinful but also used their considerable influence to prohibit the sale of contraceptives in many states.


Read more at:

Faculty:  Geoffrey R. Stone

Stone in the Huffington Post: Why the Trial Judge Should Dismiss the Lawsuit Against Black Lives Matters

Tue, 07/11/2017 - 08:48
The Lawsuit Against Black Lives Matter And The Central Meaning Of The First Amendment Geoffrey R. Stone Huffington Post July 11, 2017

One of the police officers who was grievously wounded last July in Baton Rouge, Louisiana, in a brutal attack by Gavin Long, a black, 29-year-old former Marine, filed an action on Friday for damages against the Black Lives Matter movement and several of its leading activists, including DeRay Mckesson and Johnetta Elzie, alleging that they negligently caused the attack.

The complaint alleges that the defendants “used the internet and social media to organize, stage and orchestrate protests,” that they “knew or should have known” that some of these “protests had in the past become violent” and that “police officers had been injured,” and that they did nothing to condemn or to discourage such violence.

Although I am deeply sympathetic to the plaintiff, an officer who was innocent of any wrongdoing, the trial judge should dismiss the complaint. The essential claim set forth by the plaintiff is that the defendants should have known that their speech condemning the attacks by police officers across the country against African-Americans might at some point lead some individual – in this instance an individual with serious emotional issues – to viciously attack police officers somewhere in the country.

The reason the judge should dismiss the complaint is not because it was inconceivable that of the millions of individuals exposed to the Black Lives Matter movement’s expression someone might have done what Long did, but because that is not the test for restricting speech in our democracy.

The First Amendment prohibits government from “abridging the freedom of speech, or of the press.” But what does that mean?

Read more at:

Faculty:  Geoffrey R. Stone

Geoffrey R. Stone on Lawsuit Against Black Lives Matter and the Implications for Free Speech

Tue, 07/11/2017 - 07:47
A Wounded Cop's Strange, Dubious Lawsuit Against Black Lives Matter Allie Conti Vice July 11, 2017

On Friday, a lawyer for one of the Baton Rouge police officers ambushed last summer by an unhinged military vet angry about police brutality filed a lawsuit against Black Lives Matter. The idea behind the suit, which also names BLM leaders, is that prominent police critics like DeRay Mckesson are legally (and financially) responsible for inciting violence against cops, even if the people who commit individual crimes against law enforcement—in this case killing three officers and wounding three more—have no connection to the broader movement.

This is the second time Mckesson has been sued by the same lawyer, Donna Grodner, and the weird pseudo-rap ads I found for her on YouTube page made me suspect the whole thing might be a stunt for attention. (How can you sue "#BlackLivesMatter," which is—seriously—named as one of the defendants in this latest suit?) But even if the complaint seems to stand little chance of success, it's fair to wonder if its very existence might augur a new normal where people weaponize the legal system to chill the speech of social movements they don't like.

The case that set the standard of when people are legally responsible for inciting violence in the United States was decided in 1969. In Brandenburg v. Ohio, the Supreme Court ruled that a Ku Klux Klansman was wrongfully prosecuted for insinuating during a rally that the KKK should take revenge against its enemies.

Given that precedent, Geoffrey Stone, a constitutional law expert at the University of Chicago, told me the new lawsuit against Black Lives Matter "sounds silly." In fact, a solid chunk of it is predicated on a right-wing conspiracy theory involving fabricated Twitter messages allegedly sent by Mckesson about his desire to bring about martial law, as VICE News reported.

Meanwhile, the few actual quotes attributed to activists like McKeeson in the suit, such as, "The police want protesters to be too afraid to protest," and "people take to the streets as a last resort," seem to fall way below the threshold of what was established in Brandenburg.

"[The quote] would have to be basically, 'You go kill this person,'" Stone told me of the standard for incitement. "It would have to be something the speaker meant to be taken seriously, and he would have to believe the person he was speaking to would go do it—and they would go do it imminently. The paradigm example is if there's a riot going on, and if somebody yells at someone holding a gun, "Shoot that son of a bitch," that would be an example of when someone's liable. Short of that, it's pretty hard to imagine."


Read more at:

Faculty:  Geoffrey R. Stone

Martha Nussbaum on Alexander Hamilton - EconTalk

Mon, 07/10/2017 - 13:52
Martha Nussbaum on Alexander Hamilton Russ Roberts EconTalk July 10, 2017

Martha Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law School, talks with EconTalk host Russ Roberts about Alexander Hamilton. Nussbaum talks about the tension between acquiring power and living a life of virtue. Topics discussed include Hamilton's relationship with Aaron Burr, Burr's complicated historical legacy, and the role of the humanities in our lives.

Read more at:

Faculty:  Martha C. Nussbaum

Daniel Hemel in Washington Post: Bill Could Encourage Affordable Housing in Wealthier Neighborhoods

Fri, 07/07/2017 - 13:10
A Surprising Way to Increase Property Values: Build Affordable Housing Tracy Jan Washington Post July 6, 2017


Congress is trying to address the issue of wealthier neighborhoods rejecting the construction of affordable housing with bipartisan legislation that would prohibit states from considering local opposition as a factor in funding developments.  

The bill, sponsored by Senator Maria Cantwell (D-Wash.) and Senate Finance Committee Chairman Orrin G. Hatch (R-Utah), would no longer require state agencies to notify local officials when siting a proposed housing development. The goal is to prevent “Not In My Backyard” opposition from interfering with housing credit allocation.

That could encourage more affordable housing in higher-income, whiter communities, says Daniel Hemel, who teaches tax law at the University of Chicago and wrote a blog post this week highlighting the role affordable-housing tax credits play in integrating neighborhoods.  

Read more at:

Faculty:  Daniel Hemel