Law School News

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Judge Virginia Kendall, Lecturer, on Championing Peace and Justice in Northeast India

Thu, 04/27/2017 - 14:55
Championing Peace and Justice in Northeast India Judge Virginia Kendall Midwest Jesuits April 27, 2017

It’s time for a coffee break at the First Regional Convention of North East Legal Fraternity (NELF) in Guwahati, a city in Assam in Northeast India. Young lawyers and law students wear the colorful dress of their tribe for this formal occasion. They rush to me with their cell phones: “Please, m’om, a selfie!”  I'm a celebrity in Assam, where the Jesuits have asked me to speak about my area of legal expertise — human trafficking.

It is rare for a Westerner and judge to come to speak about the law. “Don't tell my husband you are doting on me,” I joke, standing out like the foreigner I am. It is hot in Guwahati, and even the class is tired, so one young lawyer stands in front of the group announcing, “Up on your feet, let’s sing.”  Everyone joins in a song about turning oneself to the Lord with true faith. We clearly are not in the United States, where separation of church and state would prevent such a display. But here in Assam, Catholics are the minority. Every greeting, discussion, and departure is marked by lawyers exchanging statements of faith.

Most Indians who live in Northeast India have never left, and those who live elsewhere rarely come. It is isolated, poor, lacking in education, and directly in the path of large human trafficking networks. Nepalese women separated from their families after the earthquake are sold into sex slavery, children are purposely maimed on the street to beg for organized traffickers or stolen from their families to work in traveling circuses, and individuals are drugged so their organs can be sold. It is located amidst places I have written and spoken about in treatises on the massive human rights violations plaguing the international community. Now, I am surrounded by young Indian lawyers and students who want to learn about human trafficking and help eradicate it.

Read more at: 

http://jesuitsmidwest.org/story?TN=PROJECT-20...

Faculty:  Virginia Kendall

Class Spotlight: Abrams Environmental Law Clinic

Thu, 04/27/2017 - 14:50
Vicki Ekstrom High, Energy Policy Institute EPIC News April 25, 2017

Not quite lawyers, yet, but playing the role. That’s the idea behind the Abrams Environmental Law Clinic at the University of Chicago Law School. And, they’re not just acting the part. Students work on real environmental issues for real clients—community groups, advocacy organizations, concerned citizens—who need help advocating before a judge or regulator.

“The law clinic is an opportunity for students to get practical experience working with clients on significant environmental problems,” says Associate Clinical Professor of Law Mark Templeton, the clinic’s director.

The goal, according to Templeton, is to provide law students with the opportunities and the skills to make them effective lawyers.

Second year law student Christina McClintock says the clinic has indeed prepared her well for the “real world.”

“I think the clinic is the best opportunity you have in law school to really take on leadership roles in cases, learn new skills, and learn how to build relationships with the client,” McClintock says.

Plus, they get to make a positive difference in the process, says third year law student Justin Avellar, who calls the clinic one of the most rewarding experiences he’s had at law school.

“It feels really good knowing that I’m getting practical skills and that the things I’m doing are making a difference,” Avellar says.

Templeton started the clinic about five years ago, thanks to support from philanthropists Jim (Law, ’87) and Wendy Abrams. Since then, it has grown from having four students to sixteen involved at any one time, and often even more want to be involved. For the past several years, an experienced environmental lawyer has assisted Templeton as a clinical fellow, expanding the clinic’s teaching and advocacy capacity. 

The students’ enthusiasm and dedication is evident by the length of their involvement. Most participate for four or five quarters spanning their second and third years. This allows them to see how a case evolves and to think through—and see through—a variety of strategies. They also learn to manage the flow of work and client relationships—providing valuable project and team management experiences for their future careers.

“What I really want them to feel is empowered that they know how the system works, and that they have the keys to the system,” says Templeton, adding that he wants students to gain a strategic sense for how to be most successful in advocating for change whether inside or outside of the courtroom or the halls of the legislature or government agencies.

Some of this Templeton is able to teach in the classroom. The clinic meets weekly for a two-hour class in which they learn the nuts and bolts of advocacy and litigation, key environmental laws and concepts, and practical skills such as how to argue in front of a judge.

They also learn from one another, says McClintock.

“When you’re in the clinic, you get to hear all the other amazing ideas that people have,” McClintock says, noting that sometimes they’re really creative solutions she might never have thought about. “It’s just been really valuable getting to work with people and learn from people in a setting that’s very different from a classroom.”

Assigned to teams of two to five people, depending on the needs of the client, new students learn from those who have been on their team for several quarters. By the time the older students leave the team, the newer ones are up to speed and are then in a position to teach a fresh batch of newcomers. Weekly team meetings and daily, ongoing interactions between faculty and individual students facilitate this learning.

Because of the stability in the student pool and dedication of the students, the clinic is able to take on bigger, more complicated cases. Indeed, Templeton says, the biggest challenge is deciding which cases to turn down.

“Because we offer our service pro bono, meaning for free, because we have a wide range of interests, because the students are excellent, because we’re at the University of Chicago with great resources here in terms of other experts, we’ve got more projects that come to us than we can possibly accept at any time,” says Templeton.

So how do they decide which cases to take on?

“We look for cases where we think we can have a significant impact on the environment, where there are good learning opportunities for students, where the clients are really committed to the project and have a real need, and where we think the University of Chicago can bring something to bear,” Templeton says.

The clinic organizes its work around three subject matters: water, climate and energy, and land contamination. What the work entails from there is largely determined on a case-by-case basis. The students start by looking at a set of facts and determining if there is a legal case. Part of that means deeply investigating the problem. Students might visit a site to determine how big the problem is and how contamination could occur.  They also talk with those who are affected by the problem to learn their concerns and goals.

They then need to convince a judge or regulator that something can and should be done. So, for a Clean Water Act case, for example, students would have to understand how the Act works. Second year law student McClintock spent her first summer working for the clinic learning the ins and outs of the Act so she could understand how to help her clients. She calls her experience a “mental boot camp.”

She learned that if a company is going to be discharging into a waterway, the company needs a permit, and the permit specifies the terms of what the company is allowed to put into the water. Students compare the permit terms to what is actually being discharged and reported to see if there’s a violation of the permit.

For example, one case the students are working on involves a chemical manufacturing facility in Illinois that has consistently discharged chemicals into the Illinois River above its permitted limits. Before they file a suit against the company, the students first need to send a 60-day notice of intent to sue, showing they believe there is a problem. Sometimes state regulators will try to resolve the matter with the company before the lawsuit is filed. In that case, the clinic could intervene if its clients felt the settlement wasn’t strong enough.

If the lawsuit does get filed, students would file papers with a court and argue the case before a judge. The students will be doing exactly that this quarter for a case in which a tar sands oil refinery in Illinois discharged too much mercury into the Mississippi River.

If there isn’t a strong legal case under existing law or regulations, then there are other actions the students could take to improve the law. They might put together a fact sheet, meet with regulators, or work with the affected parties to get the issue out into the media.  

In one case, they are working with a group of women who row on Bubbly Creek, a long-contaminated river on the south side of Chicago. The students are filing a formal petition to trigger a formal state review of the water quality standards.  If the Clinic’s petition is successful, the water quality requirements should be strengthened to better protect the women, who are breast cancer survivors.

“[The students] are all just so impressive,” says Jenn Junk, executive director of Recovery on Water (ROW). “I’m just blown away at the amount of professionalism and true passion they have for these issues. It’s really inspiring and we’re just really thankful.”

For another case, the students are working with residents in East Chicago, Indiana, were there are concerns about lead in the soil and drinking water. Working with coalition partners, the students have been advocating for greater state financial assistance to the community to help pay for new drinking water pipes that will reduce the risks of contamination.

“Seeing that a city is going to work to replace its lead pipes because of work you’ve found or helped push because of all the research you’ve done is really rewarding,” says third year student Avellar.

The work of the clinic isn’t just local. One of the projects Templeton is most proud of is the Clinic’s work that drew a spotlight on Shell’s drilling in the Arctic Ocean. In collaboration with the ocean advocacy group Oceana, he and his students argued Shell wasn’t being sufficiently forthcoming with investors about the financial risks and challenges the company faced by drilling in the remote terrain. The students filed a petition with the U.S. Securities and Exchange Commission, briefed lawmakers on Capitol Hill, and secured significant media coverage. In the end, Shell did reversed its plans.

“Ultimately, there were a lot of factors that contributed, but I like to think we had some impact in drawing attention to this work,” Templeton says.

The clinic also dives deep into policy issues. For this, and so much of their work, they draw on Templeton’s expertise as a former regulator. As the director of the Missouri Department of Natural Resources—which included Missouri’s environmental protection efforts and energy policy office, among others—Templeton often had people coming to him with great ideas but no time to determine how best to implement them.

“There are a lot of great ideas out there, but how do you translate them into practice and make it easy for lawmakers or regulators who already have too much on their plates to actually advance this agenda?”

The students move the needle forward by providing the information and concrete language that regulators need to advance an agenda or specific proposal. For example, the students have worked with regulators in Illinois to think through the different ways the state could reduce greenhouse gas emissions.

They’ve also written a 70-page report on access to energy data. The report, like others on the topic, encourages the release of smart meter data to third-party companies that can use the data to identify opportunities for energy efficiency and gives an overview of utilities’ privacy and liability concerns. But, what sets this report apart is that the students include exact language that could be used to change regulations.  

“Lawyers in training, training by drafting laws,” Templeton says. “This is the clinic at its finest:  harnessing and honing the legal skills, energy and intellect of its students to facilitate positive environmental outcomes. I think this is part of our unique value add and something that I draw on from my experience as a regulator.”

While Templeton’s experience and knowledge of the issues provides the foundation and guiding hand the students need, he would argue that the clinic’s success is due to the students. Templeton can think of several instances where a student encouraged the group to dive deeper into an issue.  

“They ended up persuading me and ultimately ended up persuading opposing council in one case, which led the other side to agree to settle the case, and another time persuaded the judge as to why we were right.”

Ultimately, he says, “the students bring new perspectives and enthusiasm and a real desire to learn.  This has a great positive impact on our clients and ultimately public health and the environment.”

Faculty:  Mark N. Templeton

U.S. News on Eric Posner's Course, "Trump and the Separation of Powers"

Thu, 04/27/2017 - 09:50
The Politics of Trumpism James Warren U.S. News & World Report April 26, 2017

Fleeting consideration of any commonality between Trump and Latin American political history is not unfounded. As I learned upon return home, it's part of discussion within the rarefied confines of the University of Chicago, where former law school faculty member Barack Obama returned Monday for his post-presidential vacation coming.

Eric Posner, a current law school faculty member (and serial blogger), has constructed an eight-class course that has touched upon the Latin American experience and the ascension of Trump.

It's not your basic summer beach reading, but the academic texts and mainstream articles relied upon for Class No. 2 a few weeks back included "Populism and Competitive Authoritarianism in the Andes" by Steven Levitsky and James Loxton; "Venezuela: Crowding Out the Opposition" by Javier Corrales and Michael Penfold-Becerra; "Latin American Presidencies Interrupted" by Arturo Valenzuela and "Life in Authoritarian States Is Mostly Boring and Tolerable" by Thomas Pepinsky.

It's all done under the heading of "Trump and the Separation of Powers."

Read more at: 

https://www.usnews.com/opinion/thomas-jeffers...

Faculty:  Eric A. Posner

Nussbaum to Deliver Jefferson Lecture Monday

Thu, 04/27/2017 - 07:25
Law School Communications April 27, 2017

Martha C. Nussbaum will deliver the 2017 Jefferson Lecture in the Humanities on Monday at the John F. Kennedy Center for the Performing Arts in Washington, DC. Her talk, “Powerlessness and the Politics of Blame,” will begin at 7:30 p.m. ET and can be viewed by livestream at www.facebook.com/nehgov. (Viewers do not need a Facebook account.) The free, public event is sold out—but it may still be possible to attend. Information on the standby line and obtaining unclaimed tickets can be found here.

In her speech, Nussbaum, the University of Chicago’s Ernst Freund Distinguished Service Professor of Law and Ethics, will draw on her years of work on the role of emotion in politics to explore the emotional dynamics at play in American and other societies today—including the ways in which uncertainty leads to the blaming of outsider groups.

The lecture, established by the National Endowment for the Humanities in 1972, is the highest honor the federal government bestows for distinguished intellectual achievement in the humanities. Previous speakers include jurist and law professor Paul Freund, writer Saul Bellow, historian Henry Louis Gates, Jr., literary critic Helen Vendler, and filmmaker Martin Scorsese. Leon Kass, the University of Chicago’s Addie Clark Harding Professor Emeritus of Social Thought and in the College, was selected in 2009.

Engage or follow the Jefferson Lecture social conversation: #jefflec17

Faculty:  Martha C. Nussbaum

Robert Tolchin Photography

* * * VIDEO 

NEH Chairman WIlliam Adam interviews Martha C. Nussbaum

nussbaum_ne1701-393-roberttolchinphotography.jpg

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

Wed, 04/26/2017 - 11:02
Bloomberg Law Brief: Supreme Court Record on Police (Audio) Bloomberg April 26, 2017

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



Your browser does not support the audio element.

Read more at: 

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

Faculty:  William Baude

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

Wed, 04/26/2017 - 10:53
Too PC Or Not PC? The Debate Over Free Speech On Campus 1A April 25, 2017

On colleges booking controversial speakers

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

Read more at: 

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

Faculty:  Geoffrey R. Stone

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

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

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

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

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

Read more at: 

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

Faculty:  William Baude

Martha C. Nussbaum Interviewed in Vox

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

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

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

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

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

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

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

Read more at: 

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

Faculty:  Martha C. Nussbaum

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

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

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

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

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

Read more at: 

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

Faculty:  Diane P. Wood

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Faculty:  Geoffrey R. Stone IN THE NEWS

Coverage and reviews 

Excerpts in the Volokh Conspiracy blog in the Washington Post

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

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

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

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

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

Read more at: 

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

Faculty:  Geoffrey R. Stone

Geoffrey R. Stone on Why to Defend Offensive Speech

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

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

Read more at: 

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

Faculty:  Geoffrey R. Stone

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

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

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

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

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

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

Read more at: 

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

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

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

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

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

[...]

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

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

Read more at: 

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

Faculty:  Nicholas Stephanopoulos

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

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

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

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

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

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

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

Read more at: 

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

Faculty:  Geoffrey R. Stone

Adam Chilton Examines Political Leanings of Legal Scholars

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

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

Here is how the authors summarize some of their findings:

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

Read more at: 

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

Faculty:  Adam Chilton

William Baude Explains Trump’s Lack of Immunity from Lawsuits

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

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

[...]

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

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

Read more at: 

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

Faculty:  William Baude

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

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

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

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

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

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

Read more at: 

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

Faculty:  Daniel Hemel

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

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

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

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

Read more at: 

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

Faculty:  Jennifer Nou

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

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

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

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

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

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

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

Read more at: 

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

Faculty:  Mark N. Templeton

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