Law School News

Updated: 2 hours 44 min ago

Mary Anne Case on Trump's Defense of Bill O'Reilly

Fri, 04/07/2017 - 09:25
Why Trump's Defense of Bill O'Reilly Is So Baffling James Warren Vanity Fair April 6, 2017

Mary Anne Case, a professor at the University of Chicago Law School, was rather more direct in ways that folks at Fox might want to mull.

“Trump’s saying ‘I don’t think Bill did anything wrong’ suggests he doesn’t think sexual harassment should be actionable, and the fact that he has that view ought to terrify, but not surprise, the women of America.”

It fits perfectly with Trump’s “grab them by the pussy” remarks captured during an “Access Hollywood” tape that was leaked to the press, Case said.

She concludes, “It suggests a worldview the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964 sought to make extinct — the view that the workplace should be structured to suit the sexual whims of powerful men regardless of the effect this might have on the employment opportunities of women.”

Read more at: 

http://www.vanityfair.com/news/2017/04/why-tr...

Faculty:  Mary Anne Case

Tom Ginsburg on Minimum Age Requirements in Constitutions (Spanish)

Thu, 04/06/2017 - 14:22
¿Por qué los jóvenes no pueden ser presidentes en América Latina? Constanza Hola BBC Mundo April 6, 2017

El caso de Chile no es la excepción sino la regla en América Latina.

Tras analizar las 255 constituciones publicadas en la región desde 1789, el Proyecto Comparativo Constitucional (CCP, según sus siglas en inglés) encontró que en el 88% de ellas existía el requisito de mínimo de edad.

"América Latina tiene más de estos requisitos [de edad] que cualquier otra región en el mundo. Podríamos decir que es la región de la edad mínima", le comenta a BBC Mundo Tom Ginsburg, profesor de la Universidad de Chicago y director del CCP.

Según el académico, la imposición de dicho requisito es una mala copia de la Constitución de EE.UU. donde a su vez fue accidental.

Read more at: 

http://www.bbc.com/mundo/noticias-america-lat...

Faculty:  Tom Ginsburg

Daniel Hemel on How States Can Prevent the Affordable Care Act From "Exploding"

Thu, 04/06/2017 - 14:14
4 ways states can prevent the Affordable Care Act from “exploding” Tom Baker and Daniel Hemel Vox April 5, 2017

The gravest danger facing Obamacare now is not legislative action — it’s executive inaction. Fortunately for the millions who rely on the Affordable Care Act, the states can save the health care law from “exploding.” But they need to move fast.

President Donald Trump’s latest bid to repeal the ACA looks as though it’s destined to meet the same fate as House Speaker Paul Ryan’s failed effort last month. Still, Trump has the ability — and quite likely the inclination — to undermine the health care law by deliberately failing to carry out important elements of it.

Obamacare faces four near-term threats from the president. First, the Trump administration could stop enforcing the individual mandate, which requires most individuals to have health insurance or else pay a penalty to the IRS. Trump can’t change the law without an act of Congress, but he might be able, through directives from the Oval Office, to stop the IRS from collecting the penalty.

Read more at: 

http://www.vox.com/the-big-idea/2017/4/5/1518...

Faculty:  Daniel Hemel

Throwback Thursday: The Law Library on the Cusp of the Digital Age

Thu, 04/06/2017 - 10:57
Becky Beaupre Gillespie Law School Communications April 6, 2017

Throwback Thursday is an occasional feature offering glimpses into the Law School’s rich history.

There’s a hand-drawn map of the law library’s second-floor Reading Room that harkens back to a barely digital age—a time when card catalogs and bound volumes of Shepard’s Citations took center stage and the latest technology included a dedicated Lexis machine with a dialup modem and a clunky “comcat” terminal that couldn’t even search whole words. It appears to have been created some eight or nine years before the library was expanded, renovated, and renamed in honor of Dino D’Angelo, ’44, in 1987.

It’s a small piece of the library’s past—but one that serves as a visible reminder of how far technology, legal research, and the law library itself has come in the past three or four decades. The drawing, part of an old law library guide, was sent to the Law School late last year by a 2011 alumnus who works as an attorney with the US Railroad Retirement Board and found the map on a shelf in the RRB's law library. 

“It’s interesting to look at this and see what was most prominent in the space,” D’Angelo Law Library Director Sheri Lewis said of the map, which appears to represent the Reading Room in the late 1970s. Back then, federal, state, and regional case reporters filled stacks along the north end of the room, and bound copies of state annotated codes, various indices, and the latest copies of Shepard’s ringed the center of the room.

“These were obviously a very important resource, so they had prime real estate,” Lewis said, remembering the days when a lawyer or law student needed to consult the bright red books to find tables of citations to see if a case had been overturned, reaffirmed, questioned, or cited by later cases. “But this was also a system that was just screaming for automation.” (LexisNexis released an online version of Shepard’s in 1999.)

The 1970s library also featured a built-in card catalog along the southwest wall, just past the circulation and reference desks. At the beginning of that decade, the library was already crowded, and books were being moved into Harper library for storage, said Judith Wright, who retired as the law library’s director in 2013 after more than four decades. “We sold the second copy of the English Reports to make space—very painful!” Wright said.

Online cataloguing was nascent; there was a single “dumb” terminal that hooked into the Library Data Management System mainframe. The comcat (computerized catalog) terminal didn’t have a search engine, and users could only type in portions of words, said Bill Schwesig, the D’Angelo’s Anglo-American and Historical Collections Librarian, who has worked in the law library since 1986. As the technology advanced, though, searching became easier—and the library eventually undertook a long project to digitize all of its catalog entries. When the library was renovated again in 2008, the printed card catalog was removed.

It wasn’t always easy to accommodate emerging technology: when the building was built in the late 1950s, few could have anticipated how important wiring would become.

“There were few plugs, few telephone lines—it was a major problem,” Wright said. “It was hard to find a place to put anything.”

When the first Lexis terminal arrived in the late 1970s, it ended up in the Rare Book Room at the far west end of the library because there was a place to plug it in. The dedicated microfilm reader on which users could view an index of law reviews and other academic journals was installed nearby.

The 1970s library was smaller and darker. There was wasn’t yet a staircase in the center of the room—that came with the 2008 renovation—and there were three heavy wood tables surrounded by dark wood chairs with hunter green cushions, several of which can be found now in Lewis’s office. The latest law journals were kept in stacks in the room’s northwest corner, and Lewis said faculty would stroll through and browse the latest scholarship.

In those days, law library staff spent a lot more time handling print material—labeling, shelving, and routing material to faculty. A huge volume of mail came to the library each business day and on Saturday, including Shepard’s pamphlets and other updates, new materials, and more.

But as the computer age took hold, and resources and catalogs moved online, the work of the law librarians evolved, too.

Today, “their work is so much more complex and requires a vast knowledge ranging over incredible print and online resources along with sophisticated knowledge about ever-changing technology,” Wright said. “In addition, law seems to have become more complex, and scholarship and teaching reflect that complexity.”

One thing, however, has remained constant, Wright said.

“From my earliest days in 1970s to the day I retired, we always had committed faculty and students who were very serious about their work—and always trying to keep a step ahead of whatever (research tools) were available. It was amazing how quickly students and faculty adapted to each new thing.”

Faculty:  Sheri Lewis library_map_1970s.jpg

Daniel Hemel on What Makes State and Local Taxes Fair

Wed, 04/05/2017 - 12:35
2017 Tax Burden by State Richie Bernardo WalletHub April 5, 2017

What state and local tax instruments are most fair? Least fair? 

The answer depends, of course, on one's conception of fairness. If one believes (as I do) that individuals with higher incomes should pay a higher percentage of their income in tax, then the fairest tax instruments are progressive individual income taxes. With the corporate income tax, some of the burden falls on workers -- no one is sure how much. It's also hard to know who exactly bears the burden of property taxes: some (but how much?) of the tax will be capitalized into property values and rents. And it's very hard to implement a progressive tax on consumption (or sales) at the state or local level.

Read more at: 

https://wallethub.com/edu/states-with-highest...

Faculty:  Daniel Hemel

Eric Posner Publishes Syllabus for "Trump and the Constitution"

Wed, 04/05/2017 - 10:48
Trump and the Constitution: Populism Eric Posner Ericposner.com April 3, 2017

I’m teaching a seminar called “Trump and the Constitution.” You can find the current version (of the ever-changing) syllabus here: Trump syllabus. Our first class looked at the history of populism.

Class 1. Populism in the United States Read more at: 

http://ericposner.com/trump-and-the-constitut...

Faculty:  Eric A. Posner

Eric Posner: "The Government Gorsuch Wants to Undo"

Wed, 04/05/2017 - 10:37
The Government Gorsuch Wants to Undo Eric Posner The New York Times April 1, 2017

At recent Senate hearings to fill the Supreme Court’s open seat, Judge Neil Gorsuch came across as a thoroughly bland and nonthreatening nominee. The idea was to give as little ammunition as possible to opponents when his nomination comes up this week for a vote, one that Senate Democrats may try to upend with a filibuster.

But the reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House adviser Steve Bannon, who has called for its “deconstruction.” The Republican-dominated House, too, has passed a bill designed to severely curtail the power of federal agencies.

Read more at: 

https://www.nytimes.com/2017/04/01/sunday-rev...

Faculty:  Eric A. Posner

Geoffrey R. Stone on "Sex, Sin And The Supreme Court"

Tue, 04/04/2017 - 14:07
Sex, Sin And The Supreme Court 1A April 4, 2017

Over the last two centuries, sex has been at the center of many American legal battles – from contraception and abortion to same-sex marriage.

The reasons behind these conflicts can be found in the tension between American attitudes about sex, which have been shaped by centuries of religious beliefs, and the constitutionally mandated separation of church and state. This history is laid out in a new book by Geoffrey Stone, one of the nation’s leading constitutional law professors.

In the book, Stone tells the story of the Supreme Court’s continuing quest to reconcile deeply rooted religious beliefs with evolving conceptions of individual liberty, personal privacy and human equality.

Read more at: 

http://the1a.org/shows/2017-04-04/sex-sin-and...

Faculty:  Geoffrey R. Stone

Richard Epstein on "Our Energy Hysteria"

Tue, 04/04/2017 - 09:32
Our Energy Hysteria Richard A. Epstein Defining Ideas April 3, 2017

President Trump issued a long-anticipated Executive Order last week titled “Promoting Energy Independence and Economic Growth,” which undid most of the Obama energy agenda as it pertains to the regulation of coal, carbon dioxide, and methane gas.

Unfortunately, Trump tends to justify sound policies with bad reasoning—which, in this case, led him to announce, wrongly, that his executive order will ensure that “a lot of coal miners are going back to work.” The truth is, nothing will reverse the massive shutdown of high-sulfur coal plants in West Virginia, Ohio, and Pennsylvania, given the rise of fracking and advances in coal-mining technology. Yet the case for or against Trump’s radical shift in policy should not hinge on the fate of coal miners, for energy policy should focus on increasing output at lower cost, including the cost of pollution. If it takes fewer jobs to produce a given amount of energy, so much the better, as that labor will then be released for use in other useful human endeavors.

Read more at: 

http://www.hoover.org/research/our-energy-hys...

Faculty:  Richard A. Epstein

Daniel Hemel Lays Out the Progressive Case Against Filibustering Neil Gorsuch

Tue, 04/04/2017 - 09:23
The progressive case against filibustering Neil Gorsuch Daniel Hemel and David Herzig Vox April 4, 2017

Senate Minority Leader Charles Schumer appears to have secured support from 40 fellow Democrats for a filibuster of Judge Neil Gorsuch. That marks a short-term victory for the minority leader in his bid to block Gorsuch’s nomination.

In the long term, though, we think it will prove to be a strategic blunder, making it easier for President Donald Trump to fill a future Supreme Court vacancy with a conservative justice who will swing the balance on issues such as abortion, gay rights, and affirmative action.

The next moves in the parliamentary chess match are predictable. Senate Majority Leader Mitch McConnell will invoke the nuclear option to change Senate rules so that Supreme Court nominees can be confirmed on an up-or-down vote. All McConnell needs now is for 50 of the chamber’s 52 Republicans to vote for the rule change, with Vice President Mike Pence serving as a potential tiebreaker, and the filibuster for Supreme Court nominees will go the way of the dodo.

It would have been wiser for Democrats to hold their fire here and save the filibuster for an instance in which it might have made a difference. With a nominee whose views were less extreme or whose credentials were less sterling, the filibuster would have been a powerful weapon in the Senate Democrats’ arsenal. Here, it’s likely to be a dud.

Read more at: 

http://www.vox.com/the-big-idea/2017/4/4/1516...

Faculty:  Daniel Hemel

Daniel Hemel on "Paul Ryan’s $7 Trillion Challenge"

Mon, 04/03/2017 - 11:46
Paul Ryan’s $7 Trillion Challenge Daniel Hemel Whatever Source Derived April 2, 2017

Paul Ryan’s $1.2 trillion border adjustment problem is more like a $7 trillion problem.

Paul Ryan’s $1.2 trillion border adjustment problem is more like a $7 trillion problem.

The House speaker’s $1.2 trillion problem arises from the “border adjustment” component of his corporate tax reform plan. As part of his plan, Ryan wants to allow an exemption for income from exports and to disallow any deduction for the cost of imports. Since the United States runs a trade deficit (i.e., we import more than we export), the net effect of these two measures is to raise roughly $1.2 trillion over the next decade, according to a widely cited estimate from the Tax Policy Center.

Now, Ryan’s border adjustment proposal is running into stiff opposition from fellow conservatives, including the Koch brothers as well as several Republican senators. Republicans from states like Arkansas (the home of Walmart) and Georgia (headquarters of Home Depot) don’t like the border adjustment because retailers in their states bring in a lot of goods from abroad and so would be hit hard by the disallowance of any deduction for imports.

Read more at: 

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

Faculty:  Daniel Hemel

Anup Malani on How Both Republicans and Democrats Can Keep Their Health Care Promises (Audio)

Mon, 04/03/2017 - 11:44
Solving Health Care, Mental Strength Tips, Parent Previews Matt Townsend Show March 31, 2017

Dr. Anup Malani is the Lee and Brena Freeman Professor at the University of Chicago Law School and a Professor at the Pritzker School of Medicine. Malani has a Ph.D. in economics and a JD, both from the University of Chicago. Dr. Malani conducts research in law and economics, as well as health economics and development economics. Dr. Anup Malani discusses his a four-step market-based proposal on how both Republicans and Democrats can keep their promises on health care.

Read more at: 

http://www.byuradio.org/episode/0fe2bd97-626e...

Faculty:  Anup Malani

Daniel Hemel on the Strategic Case Against the Democratic Filibuster of Neil Gorsuch

Mon, 04/03/2017 - 11:35
The Strategic Case Against the Democratic Filibuster of Neil Gorsuch Daniel Hemel Whatever Source Derived April 1, 2017

The strategic case against a Democratic filibuster of Neil Gorsuch is straightforward. The argument is not that the filibuster will prevent President Trump from putting someone like Andrew Napolitano on the Court. The argument is that the filibuster may prevent President Trump from filling a future vacancy with a well-credentialed conservative who is ideologically similar to or right of Judge Gorsuch. To elaborate:

— (a) The filibuster accomplishes no work when there are fewer than 50 Senators who will support a nominee on an up-or-down vote. (Napolitano presumably falls into this category.)

— (b) The filibuster also does no work when there are 50 or more Senators who will support a nominee even if that means going nuclear. (Judge Gorsuch appears to fall into this category.)

— (c) The filibuster matters when (1) there is a nominee who would win 50 or more Senators on an up-or-down vote, but (2) fewer than 50 Senators would support the nuclear option in order to put the nominee on the Court.

Read more at: 

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

Faculty:  Daniel Hemel

Eric Posner on Why Liberals (and Conservatives) Overestimated Trump's Threat to Democracy

Fri, 03/31/2017 - 13:37
Why Liberals (and Conservatives) Overestimated Trump's Threat to Democracy Eric Posner Ericposner.com March 28, 2017

What fooled everyone is that Trump made promises that no normal politician has ever made. Normal candidates for the presidency always tell us that they will work with Congress, honor the press, curtail executive power, consult the people, compromise with the loyal opposition, and govern in the interest of the general public rather than a specific group. We never believe these candidates because all people who want to be president claim to believe in truth and justice—and nearly all of them have broken their promises once in office.

What was strange about Trump was that his promises to disregard checks and balances seemed like promises against interest—and, for that reason, they seemed credible. What commentators did not understand is that Trump realized that pretending to want to be a dictator electrified his political base, and gave him his victory in the primaries. Perhaps the only people who did not believe Trump were ordinary Republicans—the ones who took him “seriously but not literally,” held their noses, and voted for him in the general election.

Read more at: 

http://ericposner.com/why-liberals-and-conser...

Faculty:  Eric A. Posner

Bloomberg Businessweek Cites David Weisbach on GOP Tax Plan

Fri, 03/31/2017 - 12:05
Show Us Your Tax Reforms Peter Coy Bloomberg Businessweek March 30, 2017

The first conflict is that Trump mostly just wants to cut taxes, while House Speaker Paul Ryan wants to rebuild the tax code while raising the same amount of money to keep deficits from growing. Ryan’s A Better Way plan would move the U.S. toward a tax on consumption rather than income. It “would be the most substantial tax reform since the original enactment of the income tax in 1913,” writes University of Chicago Law School professor David Weisbach in a new paper. A key aspect is border adjustment, which would level the playing field for American producers by taxing just what’s sold in the U.S., whether domestic or imported.

Read more at: 

https://www.bloomberg.com/news/articles/2017-...

Faculty:  David A. Weisbach

Vox Cites Dhammika Dharmapala on Tax Repatriation Holidays

Thu, 03/30/2017 - 09:42
Trump could borrow Hillary Clinton’s plan for a bipartisan deal on taxes and infrastructure Matthew Yglesias Vox March 29, 2017

There are two ways Congress can exploit this offshore cash to raise money while cutting taxes.

  • One is what’s known as a repatriation holiday. Congress could create a special window of time during which overseas cash could be brought back home at a discount rate. Corporate America would pay the discount rate, and shareholders would get dividends that they also pay taxes on. This would increase short-term revenue, while giving a huge break to CEOs and wealthy shareholders. Congress tried this in 2004 on the theory that it would lead companies to boost investment and create jobs. That didn’t happen, according to a landmark study by Dhammika Dharmapala, C. Fritz Foley, and Kristin J. Forbes, who found that “repatriations did not lead to an increase in domestic investment, employment or R&D, even for the firms that lobbied for the tax holiday stating these intentions.” Later studies agree.
  • The other option, which has gained popularity since the repatriation holiday concept has been largely discredited, is that you could permanently cut the tax rate on foreign profits and then retroactively apply the new lower rate to foreign-held cash, which would be “deemed” repatriated for tax purposes. In this new scheme, Congress would straightforwardly admit that the purpose of the repatriation is to generate tax revenue, with the investment coming from spending the money on infrastructure rather than from the businesses themselves.
Read more at: 

http://www.vox.com/policy-and-politics/2017/3...

Faculty:  Dhammika Dharmapala

Weinrib and Stone on the "Thorny Issues" of Employment-Related Speech on Social Media

Wed, 03/29/2017 - 13:49
Construction Firms Learn To Avoid Pitfalls of Social Media Engineering News-Record March 29, 2017

The disparagement of a company’s product is not given protected status, nor is what the law calls personal griping, says Laura Weinrib, assistant professor of law and the Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School. However, the line between such comments and protected expression often can be blurry, Weinrib cautions. For example, criticism of a product manufactured by nonunion workers could be construed “as sufficiently connected to a labor dispute that it would be legally protected,” she notes.

Weinrib’s colleague, Geoffrey R. Stone, the Edward H. Levy Distinguished Service Professor at the University of Chicago Law School and a nationally recognized expert on the First Amendment, observes that, outside the protections of the National Labor Relations Act, employees don’t automatically enjoy unfettered free speech. Indeed, the First Amendment’s free-speech requirements apply only to the government and not to private employers, Stone says. In particular, private companies can use the employment contract to limit what employees can say, subject to regulation under state contract laws, he adds.

Read more at: 

http://www.enr.com/articles/41734-firms-learn...

Faculty:  Laura Weinrib Faculty:  Geoffrey R. Stone

Richard Posner on Whether Judges Should Consult Their Personal Moral Convictions

Wed, 03/29/2017 - 13:16
Should Judges Consult Their Personal Moral Convictions? Joel Cohen, Richard A. Posner, and Jed S. Rakoff Slate March 28, 2017

Starting last month, Slate began a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their first conversation was how much deference the president should be given to make Supreme Court selections that comport with his ideology. This month’s conversation is about when and how judges should bring their own personal convictions into the courtroom.

Joel Cohen: Judge Posner, during Judge Gorsuch’s confirmation hearing last week, Democratic Sen. Amy Klobuchar paraphrased you in questioning the Supreme Court nominee. According to Klobuchar, you have previously said that it is “naïve to think that judges believe only in the legal technicalities of their argument.” Rather, as she put it, “judges consult with their own moral convictions to produce the best results for society.” Judge Gorsuch disagreed.

I know that as a federal judge you can’t comment on confirmation proceedings. So let’s put aside how Judge Gorsuch responded. Do you believe that judges do, and should, consult with their moral convictions to get the best results for society?

Judge Richard A. Posner: I wouldn’t consider it proper for a judge in a case to invoke or rely on idiosyncratic moral convictions, but I think it proper for a judge to rely on the general, broadly held moral convictions of his society, provided those convictions are both pertinent to the case at hand and not overridden by other considerations that judges have to take account of.

Read more at: 

http://www.slate.com/articles/news_and_politi...

Faculty:  Richard A. Posner

Geoffrey R. Stone Talks "Sex and the Constitution" on Indivisible (Audio)

Wed, 03/29/2017 - 13:11
Week 10 WNYC March 28, 2017

Until last week, Andy Slavitt’s job was to run Obamacare. Now he’s trying to save it.

On this episode of Indivisible, Brian Lehrer talks to Slavitt, the health care executive who headed the Affordable Care Act under President Obama, about what it will take to preserve portions of Obamacare (Hint: Compromise).

Brian will also talk to Martha Kuhl, who works as a nurse at a Children's hospital in Oakland, CA and is Secretary-Treasurer at National Nurses United, about why we can’t compromise when it comes to seeking Medicare for all.

Then Brian talks to Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, constitutional scholar and author of 'Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century,' about the nation’s shifting attitudes toward sex and sexuality and the impact of those attitudes on politics and law, and takes calls from conservatives about how they square government involvement in issues relating to sex.

Read more at: 

http://www.wnyc.org/story/can-obamacare-be-sa...

Faculty:  Geoffrey R. Stone

Geoffrey R. Stone Talks "Sex and the Constitution" on Jeff Schechtman's "Specific Gravity"

Wed, 03/29/2017 - 13:05
Sex and the Constitution Specific Gravity March 27, 2017

It’s always amazing to realize how many political debates that are supposed to be about other policy issues, are really about sex. And this isn’t just a conceit of our sexualized age. It has been such since well before the founding of the republic. 

Even as health care is being debated, with reference to Planned Parenthood, maternity, contraception and abortion, it’s really all about sex. Our founders might actually be appalled hearing this debate. 

Most of the founders rejected the Puritan's repressive views about sex and and it’s sister religion. They felt it only divisive and counter to the rule of reason.

So how did we get here and why, after 240 years, are we still conflating sex and pubic policy? University of Chicago Law Professor Geoffrey Stone lays it out in Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.



Your browser does not support the audio element.

Read more at: 

http://specific-gravity.blogspot.com/2017/03/...

Faculty:  Geoffrey R. Stone

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