In my new book, Sex and the Constitution: Sex, Religion, and Law from American’s Origins to the Twenty-First Century, I explore the history of sex, religion, law, and constitutional law from America’s origins to the 21st century. This work is especially important today, because over the last half-century we have experienced a constitutional revolution. It is a revolution that has tested the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians, and judges. It is a battle that has dominated politics, inflamed religious passions, and challenged Americans to rethink and reexamine their positions on issues they once thought settled.
In the course of this ongoing conflict, American law has called into question the constitutionality of a broad range of government regulations of sexual-related behavior, including contraception, abortion, obscenity, and homosexuality. In its effort to address these issues, the US Supreme Court has found itself confronting fundamental questions about the nature of sexual freedom; the meaning of liberty, equality, and privacy; the legitimacy of government efforts to dictate sexual morality; and the appropriate role of religion in public life.
Not surprisingly, our social mores and our laws governing sexual behavior are deeply bound up with religious beliefs and traditions. Indeed, American attitudes about sex have been shaped over the centuries by religious beliefs — more particularly, by early Christian beliefs — about sex, sin, and shame. A nettlesome question in constitutional law is how courts should cope with that history in a nation committed to the separation of church and state.Read more at: Geoffrey R. Stone
As has been widely reported, the GOP health care bill was written in secret by 13 men. What’s shocking about this goes beyond the bad political optics; it’s the revelation that so much of the healthcare debate is really about sex.
The issues that may determine the fate of this legislation, by swaying the votes of moderate GOP Senators like Susan Collins (ME) and Lisa Murkowski (AK), revolve around abortion, contraception, Planned Parenthood, women’s health, and prenatal care.
This is a debate that would likely dismay our founders. According to WhoWhatWhy’s podcast guest this week, constitutional scholar Geoffrey Stone of the University of Chicago, most of the founders rejected the Puritans’ repressive views about sex, which they felt were counter to the rule of reason. According to Stone, the framers warned against the danger of religious views infecting secular legislation.
So why, 240 years later, are we still conflating religious views about sex with public policy? Stone reminds us that the framers rejected the dogmas of denominational Christianity. As a result, in the early years of the republic, there were no laws against obscenity, no laws against abortion or contraception.
During this period, sex was seen as an unexceptional part of everyday life. All that changed early in the 19th century, and we have yet to recover. This history is worth thinking about as the healthcare debate proceeds this week.Read more at: Geoffrey R. Stone
Analysis Based on Nicholas Stephanopoulos's Research Finds Partisan Gerrymandering Has Benefited the GOP
The 2016 presidential contest was awash with charges that the fix was in: Republican Donald Trump repeatedly claimed that the election was rigged against him, while Democrats have accused the Russians of stacking the odds in Trump's favor.
Less attention was paid to manipulation that occurred not during the presidential race, but before it — in the drawing of lines for hundreds of U.S. and state legislative seats. The result, according to an Associated Press analysis: Republicans had a real advantage.
The AP's analysis was based on a formula developed by University of Chicago law professor Nick Stephanopoulos and Eric McGhee, a researcher at the nonpartisan Public Policy Institute of California. Their mathematical model was cited last fall as "corroborative evidence" by a federal appeals court panel that struck down Wisconsin's state Assembly districts as an intentional partisan gerrymander in violation of Democratic voters' rights to representation.
"There are significantly more pro-Republican maps at the moment than there are pro-Democratic maps," Stephanopoulos said. "To me, the most important driver of that fact is that Republicans controlled redistricting in a whole lot more states than Democrats" after the last census.Read more at: Nicholas Stephanopoulos
Geoffrey Stone, the Edward H. Levi Distinguished Professor of Law at the University of Chicago, said students are much more likely to encounter public hate speech today than they were before, given that talk that used to be relegated to the locker room is now readily found on the internet and cable television.
That free-flowing speech affects not just the students “who are the targets of that hate speech, who feel the power of that, the marginalization, in a pretty dramatic way,” but also other students who “see it as outrageous that friends of mine should have to be subject to something like that … and are becoming very defensive on their behalf,” Stone said.
Stone said that when he talks to students who favor disrupting speeches, "who endorse the whole concept of the heckler's veto," he tries to remind them that free speech is most important to the least powerful in society. "If you had allowed Southern towns to shut down civil rights protests because white people threatened violence … that would have crippled the civil rights movement," he said. "It's a reminder of how fragile free speech is, and how essential to the civil rights, women's rights, gay rights movements."Read more at: Geoffrey R. Stone
In this week’s podcast, Judith Miller, a law professor at the University of Chicago who worked as a federal public defender, joins us to give a public defender’s perspective on our criminal justice system. We discuss some of the criminal and civil protections for police officers, including ways in which the exclusionary rule has been hollowed out.
We also discuss the ways that the defense is handicapped relative to the prosecution, in pre-trial evidence gathering, sentence reduction offers for testimony, permissible bending of the truth, and even penalties for misconduct.Read more at: Judith P. Miller
David Cole, National Legal Director of the American Civil Liberties Union, gave the 2017 Robert H. Kirschner, MD, Human Rights Memorial Lecture at the University of Chicago on June 1, 2017. Claudia Flores, Assistant Clinical Professor of Law and Director of the International Human Rights Clinic, gave closing remarks.Faculty: Claudia M. Flores
American investors are increasingly acting on the realization that a broad-based indexing strategy is superior to investing in individual stocks or actively managed funds. That’s great news for investors, who will pay less and get better returns. But it has troubling implications for corporate governance.
No passive investor cares much about governance of a particular company. The impact on an index when a single company underperforms is usually either slight or offset by gains from its competitors. It may be rational for index funds to ignore governance, since the money they spend on improving it benefits not just them but also rival funds that invest in the same stocks.
So it’s a problem when these investors control voting outcomes for the companies that they invest in. This is often the case, since 88% of public companies count one of three large institutional investors— State Street Global Advisors, Vanguard, and BlackRock—as their largest investor. All investors have a stake in companies being well-run, but they aren’t always willing to pay higher fees for monitoring or governance. And because there is no such thing as universally good governance, the blind application of one-size-fits-all governance solutions across vastly different companies often has negative effects.
So how can the law ensure that these institutions make informed decisions about corporate governance? Three approaches are possible.Read more at: M. Todd Henderson Faculty: Dorothy Shapiro Lund
University of Chicago President Robert Zimmer and Brown University President Christina Paxson discuss the role of campuses as venues of First Amendment freedoms, the use of “safe spaces” and the future of universities at the forefront of social and civic debate.
Watch the video at the Washington Post website.Read more at:
Douglas Baird, a bankruptcy law professor at the University of Chicago, said he expects Key will get Takata’s assets without liability for past claims. Without this provision, no suitor would buy the company.
“It’s in the interests of all these victims that you have this free and clear sale,” he said. “The alternative is to liquidate the assets and sell them for kindling wood.”
Lawyers are unhappy that automakers will get $850 million while relatively little goes to victims. Emison and others say $125 million will go quickly, estimating that victims will get 5 to 10 cents on the dollar of what they would have received from a financially strong company. A court-appointed special master will come up with an allocation formula.Read more at: Douglas G. Baird
Ashley Keller, ’07, thinks that the first class he ever took with Professor Douglas G. Baird was Corporations, although he also had him for Bankruptcy, Advanced Bankruptcy, and Secure Transactions—“whatever I could get my hands on that he was teaching,” Keller said.
Baird, he said, was one of the great intellectual inspirations of his Law School career.
“He’s brilliant, and he knows the subject matter cold, as you would expect from a Chicago professor,” Keller said of Baird, the Harry A. Bigelow Distinguished Service Professor of Law. “But he is great at teasing out the difficult issues through the Socratic method and not giving you the answer—making you struggle to find it but eventually leading you to the correct answer or at least the correct mode of thinking to decide what the correct answer is.”
Keller, a former partner at Bartlit Beck Herman Palenchar & Scott, co-founded the litigation finance firm Gerchen Keller Capital, which was acquired late last year by Burford Capital, where Keller is now managing director. Baird’s classes have had a direct application on Keller’s work—but his influence has gone far beyond that.
“I’ve used (what I learned) in Douglas’s class directly—a lot of what I do involves filing (Uniform Commercial Code statements) and ensuring that my investors have a first priority security interest in the assets that we’re taking as our collateral,” Keller said. “But as anyone will tell you, the purpose of law school is to teach you to think. The critical way to approach problem-solving in the legal arena is something that I gleaned from (Baird’s) classes and all of the classes here. It’s a different mode of thinking, and … I’ve basically used that every day that I’ve been in the private sector.”
After Keller graduated, he continued to talk to Baird and to seek his advice, and the friendship grew. “He’s a super generous person, he’s great with kids, and he’s warm and friendly,” Keller said. “I call on him for advice all the time, whether its bankruptcy or something else.”
Eventually, Keller asked Baird to become his middle daughter’s Godfather.
“We really have something special,” Keller said. “I’m thrilled that I was educated through the crucible of the Douglas Baird class.”
My Chicago Law Moment is a series highlighting the Law School ideas, experiences, and approaches that have impacted our students and alumni. Video produced by Will Anderson.my_chicago_law_moment_small_12.jpg
Stephanopoulos and McGhee argue that fair districting requires a roughly equal number of wasted votes for each party, and that districting schemes where one party is wasting many more votes are unconstitutional. They call their metric the “efficiency gap,” calculated by taking the difference between the number of “wasted votes” for each party, and dividing that difference by the total number of votes.
The efficiency gap is key to the plaintiffs’ arguments in Gill v. Whitford. They proposed setting a threshold of 7 percent: If a districting plan produces a larger gap than that, if one party is getting a wasted-vote advantage of more than 7 percent of the total vote, then it’s getting a huge leg up, which will continue for a long time. As Yale Law School dean Heather Gerkennoted in a Vox piece following the initial district court decision, a gap above that amount indicates that the disadvantaged party “would have almost no chance of taking control of the legislature during the 10-year districting cycle.”
By contrast, the Wisconsin plan created efficiency gaps of 13 percent and 10 percent in 2012 and 2014, respectively. Those are truly massive advantages enjoyed by the Republican Party.
By taking up the case, the Supreme Court is essentially promising to rule on the merits of the efficiency gap as a means of determining whether an improper partisan gerrymander has happened — and, if one has occurred, on whether that violates either First or 14th Amendment protections.Read more at: Nicholas Stephanopoulos
Amid growing debate about the impact of rapid globalization and rising populism, scholars from around the world gathered at the Law School last month to identify and examine challenges to liberal constitutional democracies. They discussed the effectiveness of written constitutions that enumerate individual rights, the role of judicial review, and the commitment to democratic elections and the rule of law, among other topics.
Titled “The Limits of Constitutionalism: A Global Perspective,” this year’s University of Chicago Law Review symposium addressed the causes underlying the recent push toward populism seen in several countries.
“The idea [for the symposium] came somewhat naturally, given the concerns that have been building for some years about the resilience of constitutional democracy around the world,” said Tom Ginsburg, the Leo Spitz Professor of International Law. In places like Hungary and Poland, far-right nationalist groups have been using the mechanisms of liberal democracy to provide legitimacy to autocratic regimes. Across the globe, political parties have become weaker and less influential while individual candidates and leaders have become more powerful. The conference sought to address all of these challenges to liberal constitutional democracy while grappling with the necessary balance among those three components—liberalism, constitutionalism, and democracy—that are frequently in tension with each other.
Speakers drew on theoretical frameworks from a variety of disciplines, including political science and economics, to address recent challenges to certain liberal democratic norms, including the right to a free press, the freedom of expression, and free and fair elections. In their introduction to the symposium, Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law, Ginsburg, and University of Virginia School of Law Professor Mila Versteeg argued that, as part of their rise to power, populist governments around the world “have repudiated liberal norms of tolerance and openness, restricted press freedom, attacked institutional checks that promote the rule of law, and catalyzed constitutional and statutory transformations that promise to entrench populist coalitions.”
The goal of the symposium was not only to spell out these threats to liberal constitutional democracy as a structural framework for governments, but also to better understand the causes and consequences of these threats. In their opening, Huq, Ginsburg, and Versteeg said they hoped that the papers from this symposium “sound not merely in scholarly terms, but also as interventions in a larger public debate” about the future of liberal constitutional democracy worldwide. In acknowledging the tension between liberalism, constitutionalism, and democracy, participants argued that the challenges to modern liberal constitutional democracy came because states were being forced to choose two out of the three.
Professor Samuel Issacharoff of NYU Law School argued that democracies have been failing because the institutions that facilitate democratic governance have fallen into disrepair.
“[T]he accelerated decline of political parties and other institutional forms of popular engagement…the paralysis of the legislative branches…the loss of a sense of social cohesion, and…the decline in state competence” have compromised the integrity of democratic institutions, Issacharoff argued. As institutions flounder, heads of state start using personal relationships to ensure that the business of governing is carried out, leading to public distrust in the government and disillusionment with democracy. As part of the discussion around Issacharoff’s piece, participants pushed back against his characterization of liberal democracies.
Ruth Gavison, the Haim Cohn Professor of Human Rights at the Hebrew University and a scholar-in-residence at the Crown Center for Jewish and Israel Studies at Northwestern University, agreed that the features identified by Issacharoff were indeed an important part of the problem. However, she suggested that the challenge went deeper. She argued that the most basic presupposition of a stable and justifiable democratic order is the feeling that it serves a political community connected by interests and commitments, in which rulers act for the “demos” and are accountable to it. This basic presupposition is no longer self-evident. Making (liberal) democracy more attractive again does not require better liberal constitutions, Gavison argued. Rather, it has to show that it can respond effectively and adequately to the challenges of providing welfare, community, and security for all of the main groups within each demos, in a globalized world in which states and their ‘peoples’ seem to be much less in control of their own affairs.
The idea of democracy providing a source for its own undoing was reflected in a paper presented by Kim Lane Scheppelle, the Laurance S. Rockefeller Professor of Sociology and International Affairs at the Woodrow Wilson School and the University Center for Human Values at Princeton University. Her paper focused on how autocratic regimes in Poland and Hungary used the tools of constitutional democracy to undermine it. The new autocrats “are very savvy legalists who are engaged in constitutional revolutions that would not be possible if they were simply trying to publically smash the systems they interpreted,” Scheppelle said during the conference. She argued that the new autocrats are not coming into power through military coups but through elections.
“They masquerade as democrats, coming to power through elections and intending to hold elections off into the future,” she said. Their dirty work, she added, is being done by lawyers. The problem is that constitutional democracies are largely becoming less liberal and more autocratic.
Other papers focused on constitutions and their role in shaping society. Versteeg and Adam Chilton, an assistant professor at the Law School, presented a paper that uses quantitative methods to argue that the existence of a constitutional court with a form of judicial review does not inherently increase the likelihood that constitutional rights will be respected in any given regime.
The conference itself sparked lively debate over two days of panels and discussions.
“We hadn’t anticipated that [the topic] would be on the minds of Americans, too, but that’s how it turned out,” Ginsburg said. “We were thrilled with the way the symposium came together. The Law Review was able to attract some of the best legal scholars in the country to think about a topic that is, unfortunately, very timely.”homepage-symposium.jpg
This week on Freakonomics Radio: for decades, G.D.P. has been a standard way of measuring living standards around the world. Martha Nussbaum tells Stephen J. Dubner that she’d rather use some better data.Read more at: Martha C. Nussbaum
SCOTUS Will Hear Partisan Gerrymandering Case Litigated by Stephanopoulos and Informed by His Research
WASHINGTON — The Supreme Court announced on Monday that it would consider whether partisan gerrymandering can violate the Constitution. The case could reshape American politics.
The new standard proposed by the challengers tries to measure the level of partisan politics in legislative maps by counting “wasted votes” that result from the two basic ways of injecting partisan politics into drawing legislative maps: packing and cracking.
Packing a lot of Democrats into a single district, for instance, wastes every Democratic vote beyond the bare majority needed to elect a Democratic candidate. Cracking, or spreading, Democratic voters across districts in which Republicans have small majorities wastes all of the Democratic votes when the Republican candidate wins.
In a 2015 article, Nicholas O. Stephanopoulos, a law professor at the University of Chicago and a lawyer for the plaintiffs, and Eric McGhee devised a formula to measure partisanship. The difference between the two parties’ wasted votes, divided by the total number of votes cast, yields an efficiency gap, they wrote.Read more at: Nicholas Stephanopoulos
Amazon is said to have “sent a shockwave” through the grocery industry when it announced its plan to take over Whole Foods Market, the high end grocery chain. The immediate speculation surrounds the potential losers—mostly the dominant grocers like Walmart.
The biggest winners are the people who could not, in the past, afford Whole Foods, but now will. And they far outnumber the existing Whole Foods customers. Despite its hype, Whole Foods is still a small niche grocer, capturing only 1.7 percent share of the grocery store market. It has been trying to reach broader sectors of less affluent shoppers, but with diminishing success. With the steady expansion of leading supermarkets like Walmart and Krogers into the “corporate organics” arena, Whole Foods’ sluggishness was perhaps the ultimate cause for the Amazon sale.
Amazon has long been aiming to harness its efficient inventory and delivery systems into becoming a major player in the grocery business. Now, its grocery line will no longer be generic, but would instead carry the pizzazz of perhaps the most prestigious grocery brand in the country. With low-cost warehouse and distribution network and less labor-intensive in-store service (maybe replacing friendly bakers and baristas with robots), costs could decline significantly. Amazon might eventually shed Whole Foods’ overpriced reputation, commonly nicknamed by those unable to afford its price tags as “whole paycheck.” Amazon has a consistent track record of pricing goods so close to their cost, operating on slim, almost invisible, profit margins. This might be the opportunity for mainstream consumers—especially those in the Amazon Prime network—to venture into the grazing fields of select foods.Read more at: Omri Ben-Shahar
n this nineteenth episode of the Philosophy Bakes Bread radio show and podcast, co-hosts Dr. Anthony Cashio and Dr. Eric Thomas Weber interview Dr. Martha Nussbaum of the University of Chicago on the topic of “Anger and Forgiveness,” the subject of her recent book by that name, which is available both as a printed book and as an audio book. Dr. Nussbaum has been named one of the most influential living philosophers. She was the recipient of the 2016 Kyoto Prize, and then, in 2017, gave the Jefferson Lecture, the highest honor that the U.S. government can bestow in the humanities. The video of her lecture is available online here.
Dr. Nussbaum has written many books and is known especially for the “capabilities approach” to human development, such as in her 2000 book, Women and Human Development: The Capabilities Approach, and later in Frontiers of Justice: Disability, Nationality, Species Membership (2006), as well as Creating Capabilities: The Human Development Approach, released in 2011. Dr. Nussbaum is also known for her work on emotions, such as in Political Emotions: Why Love Matters for Justice, as well as for her work on higher education, as in Not for Profit: Why Democracy Needs the Humanities.
Listen for our “You Tell Me!” questions and for some jokes in one of our concluding segments, called “Philosophunnies.” Reach out to us on Facebook @PhilosophyBakesBread and on Twitter @PhilosophyBB; email us at firstname.lastname@example.org; or call and record a voicemail that we play on the show, at 859.257.1849. Philosophy Bakes Bread is a production of the Society of Philosophers in America (SOPHIA). Check us out online at PhilosophyBakesBread.com and check out SOPHIA at PhilosophersInAmerica.com.Read more at: Martha C. Nussbaum
It is hard to think of a single regulation that all groups—liberals, conservatives, even anarchists—love. But there is one, and it has just been dealt a serious blow by Trump’s FDA. It is the Nutrition Facts label on food, a regulation that many consider the cornerstone of a good diet. The FDA decided this week to roll back a new regulation--a Michelle Obama legacy--that would have modernized the look of the nutrition label.
The fight over the nutrition label is a story of great irony, because—notwithstanding the adoration it receives—in its twenty-five years of existence it has not affected how people eat. The hard work that the Obama administration put to reform the nutrition label would not have made a difference. There may be good reasons to criticize the Trump FDA for sacking various Obama-era healthy eating initiatives, but the nutrition label crusade is not worth the candle.
The legend of the nutrition label is a fascinating story of regulatory hype devoid of supporting evidence. Launched a generation ago, when Americans were getting fatter, the label looked like a great idea. Give people information about the content of the food to help them make more informed and healthy eating choices. The label prominently displayed the (obsessively counted) caloric score, accompanied by measures of fat, carbs, sodium, and cholesterol. It was subsequently tweaked—less clutter, better font, more realistic “serving size”—making it one of the most familiar templates of disclosure in our society.Read more at: Omri Ben-Shahar
Robert S. Mueller III, the special counsel investigating Russian interference in the 2016 election, appears to be looking into whether President Donald Trump obstructed justice.
It is not easy to prove that a president committed the crime of obstruction, but if publicly reported facts are accurate, Mr. Mueller is likely to find that he has a strong case against Mr. Trump.
Obstruction of justice is a serious offense that lay at the core of Bill Clinton’s impeachment and forced the resignation of Richard Nixon. The Watergate-era cliché “The cover-up is worse than the crime” misses the point that the cover-up is a crime. Congress has made it a felony for any person — including the president — to “corruptly” interfere with a proceeding before a federal agency. Powerful evidence has emerged in recent weeks suggesting that President Trump did indeed interfere with the F.B.I. investigation of Mr. Trump’s former national security adviser, Michael Flynn, which is part of the broader Russia inquiry.Read more at: Daniel Hemel Faculty: Eric A. Posner
Craig Futterman Speaks at Press Conference for Lawsuit over Federal Oversight of Chicago Police (Video)
Accusing Mayor Rahm Emanuel of trying to cut a “back-room deal” with U.S. Attorney General Jeff Sessions, lawyers for Black Lives Matter Chicago and other community groups filed a class-action lawsuit Wednesday seeking federal oversight of the city’s police department.
The 132-page complaint immediately blew up the debate over police reform in Chicago. It may force City Hall to the negotiating table after the mayor tried to abandon the idea of a federal monitor. Or, it may lead to a lengthy court battle.Read more at: Craig B. Futterman
After the lawsuit was filed Wednesday, the city’s corporation counsel, Ed Siskel, said the city agreed that reforms were necessary, and he criticized the Department of Justice for not following through “with their commitment to a consent decree.”
“The substance of the reforms that we are all trying to achieve is not really in question,” Mr. Siskel said. “It is matters of process that we are discussing.”
He added: “What is not in any doubt is that the road we are on and committed to is a road towards real and lasting, sustainable reform in the police department, and we are not getting off that road.”
But Craig B. Futterman, a University of Chicago law professor who is one of the lawyers representing the plaintiffs in the lawsuit, said if the city really was willing to follow through on its pledge to negotiate a federal consent decree, the new lawsuit gave them that opportunity.
“We can do it tomorrow,” he said.Read more at: Craig B. Futterman