Law School News

Updated: 2 hours 43 min ago

Huq: The “Travel Ban” Executive Order as Separation-of-Powers Test Case

Fri, 03/10/2017 - 11:16
The “Travel Ban” Executive Order as Separation-of-Powers Test Case Aziz Huq Just Security March 10, 2017

The White House’s March 6 executive order “Protecting the Nation From Foreign Terrorist Entry Into The United States” (the March EO or the new EO) is a telling blend of change from and continuity with its January 27 precursor. Its changes signal the (current) strength of traditional institutional resistance from courts and bureaucrats to an insurgent, populist presidency. Its continuities are intriguing hints as to how that insurgent presidency might (in the future) seek to tame those institutional bulwarks that currently impede its agenda. How those efforts unfurl will shape the nature of the separation of powers in coming years.

On its face, this week’s order seems a substantial recession from the January 27 order as a direct result of the constitutional concerns aired by the Ninth Circuit Court of Appeals and Eastern District of Virginia. Section 1(i) states that the new order “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns.” And section 1(iv) repudiates “animus toward any religion” as the basis for January EO, a nod to concerns about religious discrimination raised by both courts.

Notwithstanding Stephen Miller’s widely discussed comments on judicial review, the new EO opens with an explicit recognition of the federal courts’ authority. Courts—and constitutional law—are expressly identified as a constraint on a president who has mocked the courts.

The constraining role of law in earlier regimes has been observed by many commentators, such as Rick Pildes and myself, in scholarly work published before the 2016 election. Indeed, a range of recent academic work has illuminated the ways in which lawyers within the executive have shaped policy. 

But this effect of law (as applied by executive branch insiders) is quite distinct from the notion that courts can stand in the way of a high-profile White House policy initiative in the national security domain.  Indeed, for scholars of American judicial review or the separation of powers, the story so far should be rather striking: Against a backdrop of pervasive scholarly anxiety over the efficacy of judicial intervention against presidential over-reaching, here is a case in which courts were not just willing to act, but in which judicial intervention seems to have had direct and fairly unmediated effect.

Read more at: 

https://www.justsecurity.org/38675/travel-ban...

Faculty:  Aziz Huq

Finding Meaning in Rules and Standards

Thu, 03/09/2017 - 14:33
Claire Stamler-Goody Law School Communications March 15, 2017

Anthony J. Casey's 2017 Coase Lecture examined the rules and standards debate from a law and economics perspective.

Through the lens of law and economics, legal scholars have extracted useful meaning from the rules-and-standards debate—a discussion that has long divided those who practice and study law, Anthony J. Casey said when he delivered this year’s Ronald H. Coase Lecture in Law and Economics. This useful meaning gives us “The Short Happy Life of Rules and Standards”—a happy life, he argued, that may end with the emergence of big data and advanced technology.

During his talk, Casey, Professor of Law and Mark Claster Mamolen Teaching Scholar, explained that the words “rules” and “standards” are subjective and widely cited in legal scholarship—on HeinOnline, there are over 5,000 articles with both of these terms in their title. A rule, such as “drive 40 mph,” gives strict ex-ante instructions, while a standard that says “drive slowly in inclement weather” is more ambiguous and leaves interpretation to the courts after the fact.

“You can find articles on the rules and standards of antitrust law, of patent law, and of constitutional law,” he said. “It always fits, people always use it, and it applies everywhere. We should be skeptical of a concept that applies to everything under the sun.”

According to Casey, the “happy life” of rules and standards—in other words, when the debate informs rather than complicates—began when Richard Posner, judge on the US Court of Appeals for the Seventh Circuit and Senior Lecturer at the Law School, and economist Isaac Ehrlich analyzed the term in the context of law and economics in their 1974 article “An Economic Analysis of Legal Rulemaking.

“While theirs is a preliminary inquiry, it contains at least a passing identification of every angle and every important aspect that law and economics scholars talk about when they talk about rules and standards,” Casey said.

In their article, Posner and Ehrlich discussed a number of key factors that inform the debate over rules and standards. The costs of promulgation (creating a law with a good fit), uncertainty (needing advice on the content of the law), and litigating (determining the outcome of each specific case) vary depending on whether the law behaves more like a rule or a standard—promulgation costs are higher with rules, while litigating costs are higher with standards.

“When we decide between a rule and a standard, we are deciding between whether or not we want to create content at the moment we create the rule, or punt on it later with a standard,” Casey said.

Two additional key factors are pre-commitment and evasion. When the government pre-commits to strict laws, it cannot be subject to ex post bias and twist them in its favor after events have unfolded. Rules have high pre-commitment, while standards’ pre-commitment is low. The flipside of pre-commitment is evasion, Casey added, because when people know the exact content of a law, they are better equipped to find loopholes and evade it for their own benefit.

“When the government gives you specific rules, you can figure out how to get around them,” Casey said, referring to a point that David Weisbach, Walter J. Blum Professor of Law, made in his 1999 essay, “Formalism in the Tax Law.” “We have the risk of evasion, and the risk of government abuse—decide between the two, and you’re deciding between rules and standards,” Casey said. “If rules and standards can help us see the question of tax that way, they really are useful, and they really can advance both the academy and the practice.”

This development was the height of the happy life of rules and standards. But, he added, Saul Levmore, William B. Graham Distinguished Service Professor of Law, challenged this happy life in an essay responding to Weisbach titled “Double Blind Law Making and Other Comments on Formalism in the Tax Law.

“[Levmore] writes, ‘Imagine now a scheme in which the government wrote the rules, but withheld complete information about their content,’” Casey said. “If the government writes a rule, but doesn’t reveal the details until after the fact, we’re solving the pre-commitment problem, and we’re solving the evasion problem.”

Casey refers to this as the ‘Levmore Law’, and while it corrects evasion without sacrificing pre-commitment, it decreases fit relative to a standard. When people are bound to a law whose content was set ex ante, they forgo the ex-post fit of a standard, even if that content is not revealed until later.

A recent paper that Casey wrote with University of Toronto Professor Anthony Niblett titled “The Death of Rules and Standards” imagined a future in which big data and technology create laws for individuals and reveal them in real time. For example, instead of saying, “drive 40 mph” or “drive slowly in inclement weather,” there would be a high-fit “micro-directive” that says, “due to weather and traffic conditions, drive exactly 37 mph.”

Applying the Levmore Law to the micro-directive gives us an additional option: the “delayed micro-directive,” where a computer program still determines a personalized law, but it doesn’t reveal the content of the individual’s law until after the action.

“When I wrote ‘The Death of Rules and Standards’ I didn’t think about this [delayed micro-directive],” Casey said. “I thought, ‘We don’t have a choice anymore, we just use the program to get the micro-directive.’ The Levmore Law tells me we do have a choice—we can add a slight delay, and have a better outcome when we’re really worried about evasion.”

A choice between the micro-directive and the delayed micro-directive weighs the cost of evasion against the value of certainty (but not pre-commitment), and maybe being able to make this choice is the death of rules and standards, Casey said. Maybe in the future, with advanced technology, the rules and standards debate will finally be irrelevant.

“But looking at it, I’m now starting to think I’ve been wrong this entire time, because maybe [the delayed micro-directive] is a standard, and [the micro-directive] is a rule,” Casey said. “Do we want the Levmore delay, or not? And maybe that’s the question that we really face when we’re looking at the form of law in the future when we get the technology we need.”

Faculty:  Anthony J. Casey Faculty:  Omri Ben-Shahar 20170221_coaselecture_0588.jpg

Judge Virginia Kendall, Lecturer, Highlighted for Women’s History Month

Thu, 03/09/2017 - 12:20
Judges Highlighted for Women’s History Month United States Courts March 9, 2017

U.S. District Court Judge Virginia Kendall kept moving forward through loss and challenges on her journey to the federal bench. Kendall talks about the importance of believing in herself, digging deep and accepting the support of family and friends along the way to becoming a federal judge in the Northern District of Illinois.

Read more at: 

http://www.uscourts.gov/news/2017/03/09/judge...

Faculty:  Virginia Kendall

Geoffrey R. Stone: Trump Could Lose Libel Lawsuit if Obama Chose to Sue

Wed, 03/08/2017 - 11:04
Opinion: Trump Could Lose Libel Lawsuit if Obama Chose to Sue Geoffrey R. Stone Chicago Sun-Times March 7, 2017

Although the Supreme Court has given substantial protection under the First Amendment to those who inadvertently make false statements in public debate, the Court in its landmark 1964 decision in New York Times v. Sullivan made perfectly clear that even a public official can sue for libel if another individual makes a false and defamatory statement about him, if the person who made the statement acted either with knowledge of falsity or reckless disregard for the truth.

In other words, under American law, Trump didn’t need to “open up our libel laws” to sue someone for making a “purposely negative and horrible and false” statement about him. All he had to do was to sue. That he was running for president of the United States and obviously had no awareness of one of the most famous constitutional decisions in American history was stunning.

Now, though, we are presented with an ironic and intriguing situation. With Trump’s early morning tweet several days ago accusing former President Barack Obama of unlawfully tapping his phone calls “during the very sacred election process,”and adding that “This is Nixon/Watergate. Bad (or sick) guy!,” Trump unambiguously accused former President Barack Obama of criminal conduct. In so doing, Trump committed the quintessential libel

Read more at: 

http://chicago.suntimes.com/opinion/opinion-t...

Faculty:  Geoffrey R. Stone

Martha C. Nussbaum on the "Ethics of Intimate Relationships"

Wed, 03/08/2017 - 11:00
Anger, Trust and Forgiveness: The Ethics of Intimate Relationships Martha C. Nussbaum ABC March 8, 2017

Medea's story is all too familiar. Few betrayed spouses murder their children to hurt their betrayer, but many certainly aim to inflict pain, and these efforts often have heavy collateral damages. Even when self-restraint prevents the enactment of anger's wishes, ill-will seethes within, just hoping for some bad outcome for the wrongdoer and his new family. And so often that ill-will sneaks out after all, in litigation, in subtle deflection of children's affections, or maybe only in an unwillingness to trust men again, which Medea aptly expresses through her fantasy of restored virginity.

But she's supposed to be right, and culturally she is usually believed to be so, so long as she does not go quite to the extreme point of child-murder. People, and women especially, should stand up for themselves and their diminished status. They should not let themselves be pushed around this way. They owe it to their self-respect to be tough and uncompromising. Maybe, just maybe, if the wrongdoer grovels enough and apologizes with sufficient profuseness and self-abasement, some restoration might possibly be imagined - or not. And if not, the ritual of apology and abasement can become its own reward.

Indeed, I used to be sympathetic to this view. But no longer. Let me explain why.

Read more at: 

http://www.abc.net.au/religion/articles/2017/...

Faculty:  Martha C. Nussbaum

Anup Malani Explains "How Republicans and Democrats Can Both Keep Their Promises on Health Care"

Tue, 03/07/2017 - 13:02
How Republicans and Democrats Can Both Keep Their Promises on Health Care Darius Lakdawalla and Anup Malani Time March 6, 2017

Republicans who want to repeal the Affordable Care Act (ACA) emphasize the importance of patient choice and market efficiency. Democrats opposing repeal focus on the need to protect the most vulnerable.

As economists, however, we reject the false choice between efficiency and justice. A strong and vibrant marketplace protected by a prudent government safety net can provide us with both. We also believe that, despite our divisions, Americans still care deeply about finding solutions with support across party lines.

President Trump just about promised the same thing. In his first address to Congress, he asked for a plan that would “expand choice, increase access, lower costs, and at the same time, provide better health care.”

We have a four-step market-based proposal that is consistent with many of the president’s remarks on health care and, importantly, with many core Democratic principles on health care too.

Read more at: 

http://time.com/4691077/republicans-democrats...

Faculty:  Anup Malani

UChicago Law Students Travel to Washington DC for Fifth Annual Cutler Law Fellows Program

Tue, 03/07/2017 - 10:44
Students learn how legal training can be used for the public good Salzburg Global Seminar March 6, 2017

The fifth annual Salzburg Cutler Fellows Program brought together 56 students to Washington, DC last month.

The two-day event, which took place on February 24 and February 25, enabled students to hear from prominent legal professionals and public servants. 

The group met at a time where questions continue to arise over the future of international legal frameworks, and the rule of law remains threatened in countries around the world.

Kristalina Georgieva, Salzburg Global Fellow and CEO of the World Bank, and Jared Genser, founder of Freedom Now, spoke at the event.

The students worked closely with faculty advisors from each of the participating law schools - Chicago, Columbia, Duke, Georgetown, Harvard, Michigan, NYU, Penn, Stanford, UVA, and Yale - on workshop research papers tackling issues ranging from human rights to monetary law.

Read more at: 

http://cutler.salzburgglobal.org/overview/art...

Faculty:  Claudia M. Flores sgs_2017_cutlerfellows_171_sn_chicago_law.jpg

Eric Posner on Whether the New Immigration Order Will Be Blocked by the Courts

Tue, 03/07/2017 - 10:22
Will the New Travel Ban Be Blocked by the Courts? Eric Posner Ericposner.com March 6, 2017

Peter Margulies says no in Lawfare. The new ban excludes lawful permanent residents, visa holders, and others with ties to the United States—and gives notice, in these ways satisfying due process concerns. By omitting mention of religious minorities in Muslim-majority countries, it avoids establishment clause and equal protection concerns. Margulies also says that the leaked DHS memos, which suggested that a travel ban would produce no security benefits, are marred by errors.

On purely legal grounds, one can find little to quarrel with Margulies’ argument. If this executive order had been issued by any other president, then it would have passed muster. But it was not issued in a vacuum. Two courts appear to believe that Trump was motivated by animus toward Muslims when he issued the first travel ban. Nothing in the new executive order will make them think differently. (Especially not the claim in the new order that the old “order was not motivated by animus toward any religion.”)

Read more at: 

http://ericposner.com/will-the-new-travel-ban...

Faculty:  Eric A. Posner

North Carolina Lawsuit Based on Stephanopoulos's Gerrymanding Work Survives State's Motion to Dismiss

Mon, 03/06/2017 - 15:49
NC lawsuits testing political gerrymandering claims moving toward summer trial Anne Blythe The News & Observer March 6, 2017

Two North Carolina lawsuits questioning the breadth to which lawmakers can design congressional districts for partisan gain are on path toward a summer trial.

A panel of three federal judges issued a ruling on Friday rejecting a request by N.C. lawmakers to dismiss the cases filed last year by Common Cause and the League of Women Voters of North Carolina, two organizations that have been critical of partisan gerrymandering by both parties.

The federal judges — James Wynn of the 4th U.S. Circuit Court of Appeals and U.S. District Judges William Osteen Jr. and W. Earl Britt — noted the novelty of the arguments put forward in the cases challenging the maps drawn and approved by the Republican-led General Assembly in 2016. But they also noted “obstacles the plaintiffs must overcome to prevail.”

“Mindful that ‘courts should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel’ ... we conclude that neither of these arguments supports dismissal at this juncture,” the judges stated in their 29-page ruling.

Read more at: 

http://www.newsobserver.com/news/politics-government/state-politics/article136347448.html#storylink=cpy

Faculty:  Nicholas Stephanopoulos

Eric Posner and Ariel Porat on Trump's New Immigration Executive Order

Mon, 03/06/2017 - 14:26
President Trump's New Travel-Ban Executive Order and Normative Aggregation of Claims Eric Posner and Ariel Porat Ericposner.com March 5, 2017

This week the Trump administration is supposed to issue a new travel ban executive order. The old one was blocked by courts because of two constitutional infirmities that were individually weak—but, we think, collectively powerful. This raises an interesting jurisprudential question: could two legal claims, none of them standing alone sufficient for granting a legal remedy, nevertheless justify such a remedy if made in the aggregate? Should "normative aggregation" be applied to this case?

The States argued that the prior Order infringed Fifth Amendment procedural due process rights and rights against religious discrimination, protected by the First Amendment and the Equal Protection Clause. The Court of Appeals for the Ninth Circuit, while upholding the District Court decision to issue a temporary restraining order ("TRO"), left open the question whether the Order constitutes infringements of constitutional rights of ALL persons subject to the Order.. Furthermore, in discussing the religious discrimination challenge, the court, while stressing that facially neutral language should not shield the Order from being challenged on the basis of intention to discriminate against Muslims, left open the question whether such intention can be established. A district court in Virginia later held that animus was at least plausible.

In an academic paper published a few years ago, we proposed a theory of normative aggregation of claims. The intuition underlying our theory is the following: if one has two (or more) claims against a defendant, where each of them standing alone does not reach a threshold beyond which a remedy is justified, sometimes the two (or more) claims combined reach such a threshold and justify a remedy. For example: if A rescinds a contract with B based on both "almost" material breach and "almost" material mistake, even if materiality (of breach and mistake, respectively) is a condition for rescission, A’s rescission might be valid, because the two bases for rescission, combined, justify it. In this latter case there is enough "contractual blameworthiness" on the part of B, and enough "contractual harm" on the part of A, to justify rescission.

Read more at: 

http://ericposner.com/president-trumps-new-tr...

Faculty:  Eric A. Posner Faculty:  Ariel Porat

Mark Templeton: "Five Immigrants Who Revolutionized America's Energy Industry"

Mon, 03/06/2017 - 14:21
Five Immigrants Who Revolutionized America's Energy Industry Mark N. Templeton Forbes March 6, 2017

Its intent may be to keep out potential terrorists and low-wage workers allegedly taking American jobs. But, the Trump administration’s actions on immigration have far-reaching consequences on every sector of the American economy—consequences the energy sector will not escape.

Anti-immigrant policies turn away bright young people who want to attend some of the best universities in the world, located right here in the U.S. They turn away recent graduates of these top schools who want nothing more than to get a job here and put their new skills to work in the American economy. And, they turn away highly-skilled workers who for centuries have looked to the U.S. as a place where their talents can do some good in the world. Even if the Trump administration’s executive order only excludes people from a certain set of countries, many more potential immigrants from other countries will decide that they are better off exploring opportunities in countries that are more welcoming to people like them.

The cruel reality is, policies that suppress immigration also suppress innovation. And, innovation has, and will always be, a key part of the energy landscape. One doesn’t need to look far to see that many of the world’s biggest energy breakthroughs have happened here in the U.S. thanks to our vibrant immigrant community. So, let’s shine a light on some of the immigrants who have helped to build—some quite literally—the energy landscape as we know it today.

Read more at: 

https://www.forbes.com/sites/ucenergy/2017/03...

Faculty:  Mark N. Templeton

Geoffrey R. Stone’s "Sex and the Constitution" is "A Monumental Work"

Mon, 03/06/2017 - 09:45
Stone’s “Sex and the Constitution” — a monumental work Ronald K.L. Collins Concurring Opinions March 6, 2017

If you thought Geoffrey Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) was an incredible book, hold on: the University of Chicago law professor has outdone himself with his latest book — Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, March 21, 2017).

I know of what I speak: I’ve read both books (the latest in advance galleys). With a discerning sense of the currents of history combined with a masterful grasp of the undercurrents of law, Stone provides his readers with a wide-lens view of how sex and the law have interacted in the span of time dating back to ancient Athens. At once fascinating and disturbing, this book reveals how law works — both as a suppressor and liberator. Witness, for example, the nightmarish world of Anthony Comstock (1844-1915) in which countless lives were sacrificed on the altar of Victorian values. Contrast that with the emergence of a new day brought about by Lawrence v. Texas (2003), which thanks to the lawyer Paul M. Smith and the jurist Anthony M. Kennedy helped to free us from the shackles of sexual bigotry. It’s all there, and more, is this superbly crafted book.

Read more at: 

https://concurringopinions.com/archives/2017/...

Faculty:  Geoffrey R. Stone

Baude Wins Federalist Society’s Paul M. Bator Award

Mon, 03/06/2017 - 09:30
Becky Beaupre Gillespie Law School Communications March 6, 2017

The Federalist Society honored Professor William Baude on Saturday night with its prestigious Paul M. Bator Award, which is given each year to an academic under the age of 40 who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact. Law School student Victoria Grant, ’17, who served on the selection committee, presented the award at the Federalist Society’s National Student Symposium, which was held at Columbia Law School.

“I speak from first-hand experience when I say that Professor Baude embodies all of the qualities the Federalist Society looks for in the recipient of this award,” Grant said. “His ‘non-stop’ body of work promoting originalism and fidelity to the law is exceptional and inspiring, bringing him to the forefront of conservative constitutional law—and indeed of constitutional law period.”

Baude, the Neubauer Family Assistant Professor of Law, teaches federal courts and constitutional law. His current research projects include papers on constitutional law, legal interpretation, and conflicts of law, and his most recent work includes "Constitutional Liquidation" as well as a new edition of the textbook, "The Constitution of the United States." He is an advisor at the Hoover Institution, an Affiliated Scholar at the Center for the Study of Constitutional Originalism, and a member of the American Law Institute, where he has advised on the Third Restatement of the Conflict of Laws.

“The Bator Award is a high honor, and Will is an ideal recipient because of his scholarship, devotion to our students, and his role in the public conversation,” said Dean Thomas J. Miles, the Clifton R. Musser Professor of Law and Economics. “The Law School is tremendously proud.”

The Paul M. Bator Award was established in 1989 in memory of former Law School Professor Paul M. Bator, a renowned scholar and teacher of federal courts and constitutional law who also taught at Harvard and served as principal deputy solicitor general in the Reagan Administration. Previous recipients include Todd Henderson, the Michael J. Marks Professor of Law, who won in 2010, and former Law School Professor Adrian Vermeule, who won in 2003.

“I am honored, grateful, and still a little surprised, to be here,” Baude said as he accepted the award before an audience that included more than a dozen University of Chicago Law School students. “The stereotype of academia is the ivory tower. But being and becoming a law professor is not a lonely process, and I owe thanks to a lot of people, many of whom are in this room.” To the students in the room, he added, “It is not exaggerating to say that you are really the reason I do this. If there were no one to write to and no one to teach, I would be doing something else.”

Elizabeth Kiernan, ’17, president of the Law School’s FedSoc chapter, called Baude an “exceptional” teacher and “a great friend to our chapter.”

“Professor Baude is one of the most engaging and enthusiastic professors I’ve had at the Law School. You can tell he takes every student’s answer seriously; he really engages,” said Kiernan, who has taken two classes with Baude and sought him out as her independent study advisor for next quarter. “He’s really good at helping you see all perspectives. No matter what position you take, he pushes back. Our chapter was really excited that he won—he deserves it.”

In addition to Baude’s honor, the Law School’s FedSoc chapter was given the Thomas Paine “Feddy” Award for Creativity in Publicity, recognizing the group’s digital and social media efforts in the past year.

“I'm immensely proud of the chapter," Kiernan said. "Everyone's dedication and hard work played a role in our success this year. This award would not be possible without the specific work of two of our officers. Our Communications Director Brent Cooper, ’18, and Webmaster Will Soule, ’18, did a phenomenal job revamping our website and upping our social media game to make us one of the most followed Federalist Society student chapters on Twitter in just the span of seven months.” 

Faculty:  William Baude Faculty:  Thomas J. Miles fedsoc2.jpg

My Chicago Law Moment: Fairley, ’06, Gained the Confidence to Solve Tough Problems

Mon, 03/06/2017 - 09:19
Becky Beaupre Gillespie Law School Communications March 6, 2017

On Sharon Fairley’s first day of class at the Law School, Professor Douglas Baird welcomed everyone to the law. And then he said something that would stick with Fairley, ’06, for years: he told them that, as members of the justice system, they had a responsibility to do the right thing.

It was a simple statement, but those words would echo in Fairley’s mind for years as she worked as a federal prosecutor and, later, as Chicago’s First Deputy Inspector General. And she still thinks of them as she leads Chicago’s Independent Police Review Authority, the agency that investigates police misconduct claims. Fairley was appointed to the post in December 2015 in the wake of the Laquan McDonald case.

“Even though I knew I was going to become a lawyer, I hadn’t really thought about the responsibility that would come along with the profession,” Fairley said, recalling that moment in Baird’s class in 2003. “I really appreciated that, and it made me really excited. To this day, I still remember those words, and I remember that moment. [And I go back to it] when I’m thinking that I have to make the right call, and I have to do the right thing, and that I have to hold myself accountable to a higher standard.”

Fairley, who had already had a successful business career when she entered law school at age 43, knew she wanted to pursue public service. But it was at the Law School that she discovered her passion for criminal justice.

“I remember sitting in my criminal law class, and we were talking about the theories of punishment,” she said. “There was lots of good discussion … about the theories, whether it was retribution or deterrence or incapacitation—all those theories that you think about when [you consider] philosophically, ‘What’s the point of punishing someone?’ But that concept didn’t really ring true for me until I was a prosecutor, and I had to advocate for a particular kind of punishment or a particular length of punishment in a given case with a given defendant. I remember feeling the weight of that as a prosecutor. It was something I always took really, really seriously.”

In one memorable case, a 73-year-old defendant robbed a bank because he wanted to go back to prison; he’d been in and out of the system most of his life, and he wanted to “go home.”

“When it came time to decide what kind of sentence to advocate for, I was really conflicted because [throwing] the book at him, [would have been] giving him exactly what he wanted. You’re rewarding the behavior you’re trying to deter. It was a conundrum, but … I went back to the principles that I learned in law school.”

She addressed that conundrum in her filing, and ultimately did what she’d decided was the right thing: she recommended prison. The judge sentenced the elderly defendant to three years.

“There was something about going through the experience at the Law School that makes you believe that by the time you come out [you] can solve tough problems,” she said. “[You think,] ‘I can figure this out, I can pick this problem apart and put it back together in a way that makes sense.’”

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.jpg

Craig Futterman on Why the Federal Government Should Intervene in Local Police Departments (Audio)

Fri, 03/03/2017 - 10:04
Sessions dismissed DOJ investigation of Chicago PD KCRW March 2, 2017

The Obama Justice Department obtained court orders to reform police abuse in several local police departments, and was investigating reports of abuse in Chicago. But Attorney General Jeff Sessions called them "pretty anecdotal and not so scientifically based." He said federal intervention might be preventing officers on the street from doing their jobs. Craig Futterman is a law professor at the University of Chicago and director of its Civil Rights and Police Accountability Project.

Read more at: 

http://www.kcrw.com/news-culture/shows/to-the...

Faculty:  Craig B. Futterman

Federal Criminal Justice Clinic Brings Racial Bias Case to Federal Court

Fri, 03/03/2017 - 09:43
Legal battle brewing over alleged racial bias of ATF stash house stings Jason Meisner and Annie Sweeney The Chicago Tribune March 3, 2017

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country.

A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

[...]

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."

Read more at: 

http://www.chicagotribune.com/news/local/brea...

Faculty:  Alison Siegler Faculty:  Judith P. Miller

Craig Futterman on Chicago Police Misconduct and the DOJ Consent Decree (Audio)

Thu, 03/02/2017 - 13:04
Wake Up With WURD - Craig Futterman 3.1.17 WURD March 2, 2017

Craig Futterman is a law professor at the University of Chicago. He joined us to talk about the pattern of misconduct in the Chicago police department, and the troubling new approach by the U.S. Justice Department.

Craig Futterman is a law professor at the University of Chicago. He joined us to talk about the pattern of misconduct in the Chicago police department, and the troubling new approach by the U.S. Justice Department.

Read more at: 

https://soundcloud.com/900amwurd/wake-up-with...

Faculty:  Craig B. Futterman

Abrams Environmental Law Clinic Joins in Petition to EPA to Address Drinking Water Contamination in East Chicago

Thu, 03/02/2017 - 12:34
Lawyers Request EPA Intervention For Lead In East Chicago Water Annie Ropeik and Nick Janzen WBAA March 2, 2017

A group of lawyers is asking the Environmental Protection Agency to issue an emergency order about lead contamination in drinking water in East Chicago, Indiana.

The request comes from a nonprofit that made this same request in Flint, Michigan – the Natural Resources Defense Council, NRDC. Now, it’s working with East Chicago residents and their lawyers, and it filed a petition for emergency action with the EPA on Thursday.

“The disastrous effects of lead in our soil have already taken a toll on our community,” said East Chicago resident Sherry Hunter in a press release. “But lead coming through our taps takes this mess to a whole new, unacceptably horrible level. We live in America; we should not be left drinking poison while officials ponder away at long-term solutions. If the city and state cannot help us quickly, it is time for the federal government to help its citizens.”

Read more at: 

http://wbaa.org/post/lawyers-request-epa-inte...

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Petition for Emergency Action Under the Safe Drinking Water Act — Natural Resources Defense Council

The Petition

Jennifer Nou Appointed Committee Chair at ACUS

Wed, 03/01/2017 - 16:53
ACUS Announces New Chairs for Committees ACUS March 1, 2017

Washington, March 1, 2017 – The Administrative Conference of the United States (ACUS) is pleased to announce new chairs for three of its five standing committees:

  • Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania Law School – Committee on Rulemaking
  • Lee Otis, Senior Vice President and Faculty Division Director, Federalist Society – Committee on Judicial Review
  • Jennifer Nou, Professor of Law, University of Chicago Law School – Committee on Administration and Management

These new chairs will play an indispensable role. Much of ACUS’s hardest work is done in the committees these experts will now lead. By the time proposed recommendations reach ACUS’s full voting membership for consideration at a semi-annual plenary session, they have been extensively debated and carefully drafted by one of ACUS’s five standing committees.

ACUS extends its sincere thanks to outgoing chairs of the three committees—Neil Eisner, Ronald Levin, and John Cooney, all of them now ACUS senior fellows—for their outstanding service and extraordinary contributions to the Conference over many years.

Read more at: 

https://www.acus.gov/newsroom/news/acus-annou...

Faculty:  Jennifer Nou

Anup Malani Provides a Primer on the Affordable Care Act

Wed, 03/01/2017 - 10:59
Do you know what the Affordable Care Act does? Here’s a primer to help Darius Lakdawalla & Anup Malani The Conversation February 27, 2017

The Affordable Care Act (ACA), or “Obamacare,” has generated controversy from its inception. Republicans vow to repeal it. Democrats vow to defend it. Yet, unfortunately, many ordinary Americans seem not to know what it does or why some people want to reform it.

What does the ACA actually do?

At its heart, the ACA did three things.

First, it expanded health insurance coverage. It did so primarily by expanding Medicaid, the government’s (mostly) free health insurance plan for the poor, and by providing subsidies to the almost-poor so they could buy health insurance on the ACA’s “insurance exchanges.”

These insurance expansions are projected to cost roughly US$1.4 trillion over the first 10 years after the ACA’s implementation and cover between 22 and 32 million additional Americans. This expansion in coverage represents one of the, if not the, signal achievement of the ACA.

Read more at: 

https://theconversation.com/do-you-know-what-...

Faculty:  Anup Malani

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