Chicago officials, and even some longtime skeptics of the department, hailed the new regulations as a sign that the police here are improving even though federal scrutiny of the department has eased since President Trump was inaugurated.
But the rules set fewer limits on officers than a draft published in October, and some said they did not go far enough to prevent police abuses. The draft would have required officers to use the “least amount of force necessary,” while Wednesday’s version said only that force must be “objectively reasonable, necessary and proportional.”
The new regulations were perceived as one early measure of how cities under pressure to overhaul their police departments may proceed under an administration that does not favor federal consent decrees as a way to compel change.
Craig B. Futterman, a law professor at the University of Chicago, said the “watered-down” 42-page policy “shows a significant retreat” from a promise by Chicago’s leaders to address a pattern of civil rights violations described by federal investigators in the final days of Barack Obama’s presidency. Mayor Rahm Emanuel pledged then to work toward a federal consent decree, but Attorney General Jeff Sessions is skeptical of such agreements, and one seems unlikely to materialize.Read more at: Craig B. Futterman
The Waukegan Generating Station, owned by NRG Energy, sits on the Lake Michigan shoreline, just one mile from Ortiz’s home. Three years ago, when Ortiz was diagnosed with asthma (a condition that also affects children in 16 percent of households in Lake County, where the plant is located), she began to suspect that emissions from the plant may have been exacerbating her asthma symptoms.
“Recently our air quality was rated an F because of the pollution, and they’re the biggest polluters,” says Ortiz. She and fellow activists had high hopes that the CPP would change that.
Finalized in October of 2015, the CPP targeted greenhouse gas emissions that emanated from power plants, which account for nearly a third of US emissions nationally, according to U.S. Environmental Protection Agency data. Under the CPP, the U.S. EPA would set carbon dioxide emissions reduction targets for each state. “Each state would then have to come up with a plan that it would propose to U.S. EPA for how it would achieve those emission reductions inside of its state, and U.S. EPA would have to bless or reject it,” says Mark Templeton, director of the Abrams Environmental Law Clinic at the University of Chicago Law School.Read more at: Mark N. Templeton
A group of East Chicago residents continue to push for the ability to intervene in court proceedings between federal officials and the companies held responsible for the pollution in the Calumet neighborhood.
Residents of the U.S.S. Lead Superfund site objected to a ruling from Magistrate Judge Paul Cherry who found the residents could not intervene in court proceedings, primarily citing the proper time to step in had passed, a move their attorneys say doesn't account the years it took the U.S. Environmental Protection Agency to finally start cleaning up the contaminated neighborhoods.
"The opinion raises an important question: When a community has been subject to decades worth of pollution and delay, how quickly should the community be required to act to enforce its legal rights," wrote David Chizewer and Emily Gilman, of Goldberg Kohn, Nancy Loeb and Debbie Chizewer of Northwestern's Environmental Advocacy Clinic, and Mark Templeton of the University of Chicago Law School Abrams Environmental Law Clinic, in the residents' objection.Read more at: Mark N. Templeton
1. Trump is unfit to govern. As explained in an excellent piece by Bob Bauer in Lawfare, we are experiencing an ongoing “governing crisis,” as a result of Trump’s character flaws. Vice President Mike Pence, who (unlike Trump) has political experience and seems at least competent, would ascend to the presidency. While liberals might worry that a unified Republican government led by a competent president would pass damaging legislation, the alternative—an incompetent government mired in a continuous crisis—is worse.
2. An impeachment could help strengthen political norms that Trump has broken. Chief among them:
a. The norm against conflict of interest and concealment of financial interests.
b. The norm against political interference in law enforcement functions.
Cons:Read more at: Eric A. Posner
Last month, Former General Stanley McChrystal visited the Law School to discuss how legal counsel shapes military decisionmaking.
The role of legal counsel in military strategy is to offer a starting point toward the most principled outcomes of difficult situations, former General Stanley McChrystal told Law School students during a lunch talk last month. McChrystal—who is best known for commanding the Joint Special Operations Command (JSOC) for five years during the mid-2000s—drew upon his decades of military experience to discuss the subject with Deputy Dean Daniel Abebe, and in doing so revealed the complex relationship between the legal and military spheres.
During the talk, “Adapting Domestic and International Law to Shifting National Security Concerns,” which was organized by the International Law Society and Law School Veterans, McChrystal drew three nested boxes on the board. The outside box represented what was physically possible, the middle was labeled “Legal,” and the innermost “Moral.”
McChrystal drew the boxes after a student asked whether legal advice was seen as an obstacle or an aid to JSOC operations, particularly when difficult, or even morally gray, issues were involved.
“This is the way it worked in my mindset,” McChrystal said referring to the boxes. “You’re trying to get inside the moral box, because you want to live there. If you start living out here,” he said pointing to the legal box, “and here,” he said pointing to the outermost box, “you end up in places you don’t want to be. It’s a slippery slope, and expedience is the thing that drags.”
For instance, when McChrystal took command of JSOC in the Fall of 2003, he had the authority to use sleep deprivation and stress positions—but he didn’t because he felt that those techniques fell outside of the moral box.
In response, Abebe, whose scholarship focuses on US foreign affairs law, public international law, and international politics, questioned the relevance of law given the significance of moral over legal constraints on strategic decision-making.
“Much has been made about the increasing judicialization of military decision-making and the presence of lawyers in these situations,” said Abebe, the Harold J. and Marion F. Green Professor of Law. “But based on that particular story, it makes me wonder to what extent the legal rules are really constraining, and maybe it’s the moral decision that really matters?”
McChrystal clarified that without the lawyers’ insight and expertise, it would have been much more difficult to determine a moral solution in the first place.
“The legal box wasn’t constraining, it was guiding,” he said. “It started you somewhere and got you closer to that moral box. We knew if we didn’t stay within the legal box, it was going to come back and hurt us in the long run. Once you’re on the wrong moral or legal side of something, it’s indefensible over time.”
At the beginning of the talk, McChrystal discussed the changing approaches to counter-terrorism and cyberwarfare in light of social media and advancing technology. He compared cyberwarfare to nuclear warfare, because both require holding opponents at risk in order to deter the other from making an attack.
“If you think about cyber, we’re in this gray area, because the idea of holding at risk is hard,” McChrystal said. “We haven’t defined it well enough to know how we’re going to respond, and they don’t know how we’re going to respond, so they may not feel we have them at risk.”
There is some debate as to which cyberattacks are considered traditional acts of war, and whether the United Nations Charter or international law should redefine what is permissible as technology continues to advance, Abebe said.
“Many argue that the current regime is sufficient and that we just look at a particular set of factors—what was targeted, how many casualties have there been, what’s the likelihood of repetition—and maybe that’s enough to figure out whether it’s an act of war,” he said. “But others say no, cyberwarfare is completely different, it’s much more complicated, and we need to come up with a new regime.”
After discussing the obligations that McChrystal faced when developing military strategy as commander of JSOC, a student asked whether the legal and moral boxes could also apply in a civilian context.
“I changed the rules of engagement in Afghanistan when I got there, because if we didn’t gain the support of the Afghan people we would lose the war,” McChrystal said. “Corporations in particular need to keep talking about how to operate as good corporate citizens—it’s a moral point as well as a practical one.”Faculty: Daniel Abebe 20170417_mcchrystal_5650.jpg
Law School student Joshua Pickar, ’17, presented oral argument to the Seventh Circuit Court of Appeals on May 16 in United States v. Vincent Jones. The Jenner & Block Supreme Court and Appellate Clinic was appointed to represent Jones on appeal in the case.
Pickar and other clinic students—Bryan Beaudoin, ’18; Jeong Gim, ’17; Annie Gowen, ’17; Alex Waleko, ’17; and Josh Wilson ’17—spent extensive time preparing the opening and reply briefs. They argued that the officers’ warrantless search of Jones’ residence and safe violated the Fourth Amendment, and that the evidence uncovered in the search therefore should have been suppressed. Pickar, who argued the case before Judges Joel M. Flaum, William J. Bauer, and Michael S. Kanne, also prepared at length for today’s oral argument, including by participating in moots with clinic students, Law School faculty, and Jenner & Block attorneys.
I spent much of last year doing something somewhat unusual for a junior faculty member — working on a constitutional law casebook. With most law students’ and professors’ semesters ending (we here at the University of Chicago still have a few weeks to go in our quarter), I thought I’d write a little bit about why.
The book I joined — “The Constitution of the United States,” by Michael Stokes Paulsen, Steven Calabresi, Michael McConnell and Samuel Bray — had already been through two editions. Each edition, including the third, has reflected a fairly substantial overhaul that has made the book (I think) better and better, but it has retained a basic organizing principle that sets it apart from most other constitutional law casebooks — the centrality of the Constitution itself. Without speaking for my co-authors, who have been on the book for far longer than I have and have written an excellent preface, I thought I’d explain why I think that organizing principle is so important to teaching constitutional law.Read more at: William Baude
When Kate Miller, ’17, was working last summer at the Louisiana Capital Assistance Center in New Orleans, she saw how cumbersome it could be to collect data on jury composition. If lawyers needed to prove racial disparity or examine trends, they’d have to send interns to collect juror surveys—sometimes from far-flung rural parishes—and enter the information into a spreadsheet by hand. It was time-consuming, limiting, and potentially costly.
Miller thought there had to be a better way. And so that fall, she teamed up with a classmate from her Coding in the Law class, Christian Kolb, LLM ’17, to create one. The result: JuryCheck, a web-based platform that allows criminal defense attorneys, courts, and criminal justice reform advocates to detect racial and gender underrepresentation in jury pools in real time.
“JuryCheck is an ideal law and tech product because it solves a pain the founders personally experienced, and helps protect fundamental constitutional rights, fair jury representation, that are often overlooked,” said Lecturer Nikhil Abraham, JD/MBA ’11, who taught Miller and Kolb in Coding and the Law. “The people who will benefit the most from this app, the accused in a jury trial, are likely not able to pay, and the SNVC has solved the ‘who pays’ and ‘who benefits’ problem many times. I hope JuryCheck's success strengthens the jury trial process, and shows the outsized impact lawyer-coders can have on the legal system.”
Miller and Kolb are among several Law School students who are working to address complex societal issues through high-tech entrepreneurial ventures. An interdisciplinary University of Chicago team that includes Michael Killingsworth, ’18, reached the finals earlier this month in the social venture category of a Stanford University start-up challenge with Flipside, a platform that combines social science research and computer algorithms to address the “filter bubbles” that many believe have stymied American political discourse. And last year, a team of three Law School students tied for first in Booth’s Social New Venture Challenge with AccessArc, a technology service that gives prison inmates increased accessibility to legal advocacy. Both JuryCheck and Flipside will be competing in this year’s SNVC, which moves into the final round on May 18.
“It’s exciting to see UChicago law students apply their rigorous analytical training to help solve complex social issues with innovative, entrepreneurial solutions,” said Robin Ross, executive director of the Law School’s Doctoroff Business Leadership Program and an advisor to Flipside. “Helping our students connect their legal training with the world of business, entrepreneurship, and social impact is at the heart of the Doctoroff Program’s mission. It’s also gratifying to see law students work as part of a team—with students at the Law School and across the Midway—and learn valuable lessons about collaboration, communication, and leadership.”
Flipside, which was created by a team that includes undergraduate computer science majors, a former Shark Tank winner, and the former editor in chief of the Maroon, uses a complex algorithm that assesses the political ideology and moral leanings of each user and then serves up stories that reflect opposite points of view. The algorithm, however, also tracks language and tone preferences to ensure that the stories it presents actually resonate with the user and, perhaps most importantly, avoid triggering the kind of emotional response that leads many to discount across-the-aisle perspectives.
“Our intuition was that people find it jarring to read something they don’t believe. But that’s not the case,” said Sidd Sachdeva, a third-year undergraduate with a major in statistics and minor in computer science who first developed the idea.
Rather, “when you read opposing viewpoints, if it is grounded in your same moral foundation, you’re more likely to engage with that material and to seek out other material that represents opposing viewpoints,” said Killingsworth, who earned his undergraduate degree in political science, psychology, and sociology at the University of Nebraska-Lincoln.
Using data collected from a “get-to-know-you” survey, as well as a user’s Facebook “likes” and other social media profile information, the app creates a palatable flipside for each of its users. The more they engage, the more the app learns about their leanings and preferences. And as the offerings get better, social science suggests that they’ll also become more open to the opposite perspective.
“They become more diverse in their points of view, they become more engaged in the political process—and sometimes they even change their point of view, which is something that seems impossible in today’s political environment,” Sachdeva said. “Ideology, it turns out, is correlated with culture—and when you separate those variables you can broaden people’s horizons while continuing to make it comfortable for them. And the way you do that is through algorithms and natural language processing.”
It essentially offers users the experience Killingsworth has when he engages in respectful debate at the Law School.
“At the Law School, we get the debate between people of the left and people of the right, and you can sit there and debate with other people without it escalating into ad hominem attacks,” said Killingsworth. “That’s how it should be for everyone. Everyone should be able to sit down and have a conversation with someone from the other side.”
The Flipside team—which also includes Jason Li, a fourth-year economics/computer science undergraduate who founded the social enterprise iReTron as a high school sophomore and won a $100,000 investment on Shark Tank; Julia Zhou, who is working on a masters in computational social science; Forrest Sill, a third-year computer science undergraduate and the former editor-in-chief of the Maroon; and Baxter Stein, a third-year public policy studies undergraduate who serves on the student advisory board for the Institute of Politics—said University of Chicago values of interdisciplinarity and rigorous debate are woven into their group ethos.
“The culture of the marketplace of ideas is something that permeates every part of this university, and it is something all of us have internalized deeply,” Sachdeva said.
An environment that prizes a multidisciplinary approach to problem solving is also what led Miller and Kolb to create what they describe as a relatively simple step toward addressing a complex, systemic problem.
“Since the passage of the Civil Rights Act over 150 years ago, the courts and Congress have been trying to weed racial disparities out of the system of jury selection. But it hasn’t happened, largely because of these data problems,” said Miller, who was in the Law School’s Exoneration Project for two years and the Civil Rights and Police Accountability Project for one. “This is something that impacts the lives of criminal defendants, because the racial composition of a jury has a huge impact on the outcome of the trial result and in sentencing. Also, the criminal justice system at large has been de-legitimized in a lot of ways. We’re hoping to restore some faith in the process—both for making sure that people in the community are able to serve on juries and from the perspective of the defendants.”
With Jury Check, information would be entered in real time and “within seconds, a public defender or attorney would have an indication of whether a minority was underrepresented, or that there may be overrepresentation of a particular racial group,” Kolb said. “It would also give the benefit of data aggregation, so instead of having one public defender office inputting the information into one spreadsheet, we would have the collective power of multiple public defenders inputting that information and aggregating it in a central place.”
For Kolb, the experience has been a great opportunity to engage with other emerging entrepreneurs.
“Meeting all these young people who are trying to do something with technology and really tackling social problems has been one of the best parts for me. It has really enriched my LLM and Law School experience,” Kolb said. “The entrepreneurial spirit is really encouraged at the Law School and also at Booth. I didn’t ever think I’d be doing something like this before I got here. It’s been great.”
Seven finalists in the Booth competition will be announced on May 18 and will compete for the title on May 23. Those who wish to attend the Social New Venture Challenge Finals can register online.Faculty: Nikhil Abraham
Two weeks ago, the University Senate elected 17 new members to serve on the Council of the University Senate. This past Tuesday, the Council elected seven members to form the new Committee of the Council, a smaller group of faculty that communicates directly with the president and the provost.
Law School professor Randal Picker, spokesperson for the 2016–17 Committee of the Council and chair of the Committee on University Discipline for Disruptive Conduct, was re-elected to be spokesperson of the 2017–18 Committee of the Council, according to newly elected members of the Council.
Law School professor Lisa Bernstein, another newly elected member of the Council, told The Maroon that having different voices across disciplines is incredibly valuable. “I personally love meeting my colleagues across campus. When smart people who care about the institution come together, something good comes out of it,” Bernstein said.
Bernstein also told The Maroon that one of the issues she wishes the Council to address next year. “From my perspective, the most important issue is maintaining the integrity of free speech on campus. I want my voice for free speech to be heard,” Bernstein said.Read more at: Randal C. Picker Faculty: Lisa Bernstein
Prof. Stephanopoulos's "Efficiency Gap" Measurement May Be "The Holy Grail of Election Law Jurisprudence"
The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party would win an outsize number of seats. But it has left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.
The problem, Justice Anthony M. Kennedy wrote in a 2004 concurrence, is that no one has come up with “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.
Finding such a standard has long been, as one judge put it, “the holy grail of election law jurisprudence.”
In the coming weeks, the Supreme Court will consider an appeal from a decision in Wisconsin that may have found that holy grail. The case, Gill v. Whitford, No. 16-1161, arrives at the court in the wake of a wave of Republican victories in state legislatures that allowed lawmakers to draw election maps favoring their party.Read more at: Nicholas Stephanopoulos
The House Republicans’ plan for a “border-adjusted” corporate tax is still a long way away from becoming law, but already a number of prominent lawyers and law professors have called into question the proposal’s constitutionality. Just last week, Theodore Olson, who served as U.S. solicitor general under President George W. Bush, said that if the border-adjusted tax becomes law, the Supreme Court should strike it down.
All this is an unfortunate distraction from an important debate about the substantive merits of the House Republicans’ proposal. There are lots of legitimate reasons to oppose a border-adjusted corporate tax, but the claim that it would be unconstitutional is borderline frivolous.Read more at: Daniel Hemel
One of the most important pieces of the newly passed House health bill is a possible US$800 billion cut over 10 years to Medicaid, the federal program designed to provide insurance coverage to the poor.
That bill, entitled the American Health Care Act (AHCA), rolls back part of the expansion of Medicaid that took place under the Affordable Care Act (ACA) by limiting federal contributions toward state coverage of individuals with annual incomes above US$16,643 or families of four with annual incomes above $33,948. With the reduction in federal support, states will now have to decide if they can afford to cover adults with incomes just above the federal poverty line. In addition, the AHCA freezes federal spending per Medicaid beneficiary at its 2016 levels.
The bill’s exact financial impact on Medicaid remains uncertain, because the House passed it before the Congressional Budget Office had a chance to evaluate the numbers. The projected $800 billion cut is taken from a CBO analysis conducted on a prior version of the AHCA. That version as well as the bill passed in May give more control to states to administer Medicaid.
Republican leaders have argued the current Medicaid system is failing and in need of reform. Democrats, including former President Obama, have charged that the AHCA harms the well-being of poor and vulnerable groups.
We wholeheartedly agree – with both sides. We question the wisdom of steep cuts to an already underfunded Medicaid system. But the status quo is not working either.
So what should we do?Read more at: Anup Malani
Owen Fiss, the longtime Yale law professor, has a new book out. Called Pillars of Justice, it devotes a chapter each to thirteen lawyers who influenced his thinking (and not incidentally, also left their marks on the world). I don’t know Fiss, and I don’t know much about legal history, but the portraits he paints contain rich insight. They have as much to say about great leadership and inspired teaching—and the crucial role of asking questions in both—as about the evolving legal doctrine of the civil rights era.
Take, for example, his account of how he was mentored by Harry Kalven, a leading light at the University of Chicago Law School—an apprenticeship that started when Fiss joined its faculty in the summer of 1968. As Fiss describes their interactions, they always began with a question, which grew into an “intense, all-absorbing” dialogue as the two walked through a nearby perennial flower garden and along the Chicago lakefront. “His method was conversation,” Fiss writes of Kalven:
“He would manage to find in the words of the apprentice glimmers of insight, which he would then restate in terms so eloquent and profound that they deepened understanding and encouraged further inquiry and comment. The apprentice felt obliged to say more, to think harder, to look at the problem from a new perspective. The conversation became an escalation of insights. That was the core of my apprenticeship with Harry. It was one of the most extraordinary experiences of my life, and it revealed the special qualities of the master.”Read more at:
Prof. Anup Malani and IME Prof. Supratik Guha to Pioneer a Water Quality Sensing Network on India’s Second Longest River.
An innovative combination of sensors in the water, networking in the Cloud, and change management on the ground promise potential solutions to age-old water quality problems along the 900-mile Godavari River.
Sixty million people live within the Godavari River basin that drains into the Bay of Bengal on India’s east coast. The river’s water quality affects everyone, and the region stands to benefit from this first-of-its-kind sensor network installation and change management initiative. The Bill and Melinda Gates Foundation has recognized the value of the research through a grant to support the Administrative Staff College of India’s (ASCI) program to provide city-wide sanitation improvements for urban populations in Andhra Pradesh. ASCI and University of Chicago experts—including International Innovation Corps Faculty Director Anup Malani, the Lee and Brena Freeman Professor of Law, and Institute for Molecular Engineering Professor Supratik Guha—will collaborate to deliver innovative systems to assess water quality, gauge its impact on the local environment, and create more informed practices.
The project is a tale of UChicago collaboration. Guha, a researcher in sensing technologies and cyber-physical sensing networks, partnered with Malani, who helped found the IIC, a global fellowship program that is housed at the Harris School of Public Policy, to address a real-world problem through very different fields of inquiry and knowledge. Together they are building connections that will elevate the research initiative beyond science. Guha, has partnered with the IIC, They are investigating new systems for assessing, mapping, and positively impacting the water conditions at towns along India’s second longest river system.
By combining readily available, remote, in-the-water sensing technologies, with Cloud-based data collection and real-time mapping systems, the research and implementation teams intend to demonstrate the importance and value of detecting and anticipating pollutants that enter the river in the form of human waste, organic materials, and chemical contaminants. The uniqueness of this approach lies in its use of a boat-based mobile sensing platform that carries out streaming measurements, enabling water quality maps (graphical color representations of the data known as heat maps) to be obtained in desired sections of the river. Instantly measuring multiple quantifiable parameters and using data analytics techniques, the investigators expect to identify trends in pollution levels that are not easily (or cheaply) measurable on-site, such as microbial content. The multiple parameter heat mapping should also enable them to pinpoint sources of pollution entering the river.
Guha described the IME’s role in terms of innovative engineering and systems building: “We will use two-to-five commercial mobile sensor platforms installed on boats moving through various points in the river to map water quality with high resolution and over time. The platform will be configured with an array of sensors, a power source, an onboard processor, a GPS and a cellular link for data communications. With these sensing installations, the IME will survey a section of the Godavari River and develop a Cloud-based data curation platform with the ability to push data about river conditions to mobile phones using visualization applications, making the data about pollutants publicly available and more accessible.” Highlighting the novelty of this research, Guha continued: “Very little work has been done to date in this area, where large systems of sensors are combined with Big Data and physics models to create cyber-physical sensing systems for large water bodies. The work will be one of the first serious pilot programs to demonstrate the scalability, viability, and utility of this approach. The innovation will be in integrating this as an entire system.”
Malani explained the IIC’s contribution: “We work to identify and implement scalable, sustainable, high-impact interventions that make great leaps in solving pressing development challenges. This water sensing project is a good example—leveraging top global talent here at UChicago and in India, and implementing the research through intensively trained IIC Fellows operating on the ground with the public sector in Andhra Pradesh. So this work is very much about connections—in technology and people.”
Five IIC fellows working in the state of Andhra Pradesh are engaging with ASCI to channel the water sensing results through cultivated government and civic relationships to bring new and actionable insights to the attention of local and regional authorities, agrarians, health professionals, and social agencies. The collected, curated, and visualized data should help assess benchmark levels of contamination and inform regulatory measures aimed at mitigating the pollution. Understandings from the data will also be used by IIC Fellows to make evidence-based optimizations to the sanitation program and ensure citizens of Andhra Pradesh receive the maximum health and environmental benefits from interventions. IIC Fellow Priyank Hirani and Dr. Srinivas Rao Balivada, a water quality expert who has recently joined the project, are driving the local implementation of the water sensing research in Andhra Pradesh. This involves coordinating the technical aspects of the project for Guha while simultaneously advancing Malani’s vision of intervention—forming relationships and preparing the civic groundwork for meaningful change in local mindsets, water quality regulations, and infrastructure. Hirani enthusiastically views the challenge: “This river monitoring project puts in motion a set of steps that can have a real impact on the condition of populations residing in the Godavari River basin.”
In India, Professor Guha has enlisted additional help on the Godavari water sensing project, working with IBM Research where he was Director of Physical Sciences before joining the IME and Argonne National Laboratory. “IBM is a pioneer in the area of technologies related to the internet-of-things (IoT) and we are collaborating with a strong research group at IBM Bangalore who have been working in the area of analytics for water,” Guha said.
Toward the end of the project, the IME will also help evaluate the environmental impact of ASCI’s interventions and develop a prototype for more accessible water sensing technology. The project is scheduled to run through August 2018.Faculty: Anup Malani malani_anup.jpg
An employer faces a problem worker. The worker has botched several important assignments and ought to be fired. But there’s a problem. The worker has also disclosed wrongdoing in his workplace to the government. This means that the worker may be protected by statutory or common law whistleblower rules, which prohibit employers from retaliating against whistleblowers by firing them. What should the employer do?
He should fire the worker. If the worker cannot handle the job, he should make way for someone who can. It’s true that the employer also benefits—it may be that the government investigation based on the worker’s disclosures will grind to halt if the worker stops cooperating so he can find another job, or other workers fail to cooperate because they are afraid of being fired. But in a broader sense, the policy behind the whistleblower statutes and standard labor market prescriptions are reconciled. Workers will be deterred from incompetence; conditional on doing the job properly, the incentive to blow whistles will be preserved. The law should allow the employer to fire the worker.
Let us apply this analysis to Trump and Comey:Read more at: Eric A. Posner
Recent comparative law studies of democratic erosion suggests not. Neither question directs attention to the most pertinent repercussions of Comey’s termination. For illegality is not a necessary, or even common, characteristic of antidemocratic change. Worse, the very terminology of “crisis” presupposes a narrative structure that democratic decline singularly lacks in practice. There are better questions—ones that are both more difficult, and more troubling—that should be posed today.
Democratic decline is a recurrent phenomenon of the early twenty-first century. My colleague Tom Ginsburg and I recently mined Polity data to identity 37 recent instances in which the quality of a nation’s democratic institutions shrank substantially. Examining these comparative cases—which range from Poland and Hungary to Thailand, Egypt, and Turkey—illuminates the institutional mechanisms of democratic decline. It hence provides guidance for thinking about pathways along which antidemocratic institutional change might proceed closer to home.
Taking this comparative perspective, a threshold lesson is that the road away from democracy is rarely littered with overt ruptures in the formal rule of law. To the contrary, the modal contemporary path away from democracy under the rule of law relies centrally on actions within the law. Central among these legal measures is the disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers and related legislative reforms of institutions’ designs.Read more at: Aziz Huq
If you think back to Constitutional Law class, you may recall Romer v. Evans, the landmark 1994 US Supreme Court case that voided a Colorado constitutional amendment preventing protected status based on sexual orientation. But you may not recall that, before reaching the highest court in the land, Romer came up through Colorado state courts—not the federal system.
Litigating on behalf of the state of Colorado was Solicitor General Timothy Tymkovich, who is now Chief Judge of the United States Court of Appeals for the Tenth Circuit.
“Some of the most important issues of the day will be litigated in the state courts, and people sometimes overlook that,” Tymkovich said in the Law School’s final Edward H. Levi Distinguished Jurist Program talk of the year. Romer, the judge said, is an “example in action” of not only federalism, but also separation of powers.
“Although many of the voters who voted in favor of the amendment were disappointed about the outcome of the case, I think the litigation through our state courts . . . demonstrated the checks and balances of the law-making branches and the role of the judicial branch,” he said. Despite controversy over the decision, the judge observed, it was applied and obeyed without issue.
In his talk, “Judicial Independence From Jay to Roberts,” Tymkovich focused on the importance of judicial independence and civil discourse. For both, he stressed, the current “energetic” political climate presents a challenge.
Take US Supreme Court Justice Neil Gorsuch’s recent Senate confirmation hearings, during which one senator claimed that the then-nominee’s “rigid ideology . . . always puts the little guy under the boot of corporations,” and another questioned whether Gorsuch has a “beating heart.”
Tymkovich admitted he might have winced a few times watching his former colleague on the Tenth Circuit endure hostile questioning. “As somebody who’s had a personal relationship and been friends [with Justice Gorsuch] for 25 years, it was kind of hard for me to square with the person I know,” he said.
Or take what Tymkovich described as an increasing polarization of voters.
“Even open, respectful conversation about political and social issues is—at least among those who disagree—becoming more difficult and fraught with controversy,” he said. “And with the social media and Internet, it has become easier to retreat into comfortable spaces where we reinforce our own views, rather than questioning what we believe and remaining open to changing our minds.”
But Tymkovich is optimistic that judicial independence will weather the present political storm, just as it has countless attacks on the judiciary throughout American history. He recalled that congressional comments were similarly scathing during Justice Sonia Sotomayor’s confirmation, and that Justice Samuel Alito’s wife left partway through her husband’s hearings in tears. President Thomas Jefferson and Chief Justice John Marshall openly disliked one another, President Abraham Lincoln questioned the Supreme Court’s authority, and President Franklin D. Roosevelt proposed a court-packing plan. Recently, a slew of Tenth Circuit cases on topics ranging from contraception to immigration have attracted strong criticism. Through it all, judges have not hesitated to enforce checks on the Congress and the President.
For that we have the Founding Fathers of our country to thank, the judge said.
“Our independent judiciary, of course, is a product of the founders’ vision and the protections they put in place to insulate judges from the caprices and pressures of partisan politics," he said. "I think our current climate is a kind of example of how these protections are once again tested. But I think there’s plenty of reason to be hopeful that the vitality of the independence of the third branch remains.”
Respectful communication should still be the goal, however, Tymkovich emphasized. He described the culture of collegiality among judges on the Tenth Circuit. The judges of varying viewpoints and judicial philosophies circulate their proposed opinions to every member of the court before final publication, and Tymkovich is regularly impressed by both the reading judges’ respectful constructive criticism and the authoring judges’ willingness to take feedback into account.
“You can disagree without being disagreeable,” Tymkovich said.
He also cited the fact that four judges on the Tenth Circuit, all of whom were appointed by President Obama, sent Justice Gorsuch a gift basket for his confirmation hearings.
“[Justice Gorsuch] went out of his way to remark how touched he was by that show of support . . . It may seem a like a small thing, but those gestures can go a long way in fostering and maintaining a collegial court,” Tymkovich said.
Students in the audience appreciated Tymkovich’s discussion of comity.
“Because the Supreme Court only takes 80 cases a year, having judges on the circuits who get along and can work together for 25 years is vital,” said Dan Simon, a fourth-year at the College who has made a point of crossing the Midway for a number of Edward H. Levi Distinguished Jurist Program talks.
Reeves Jordan, ’17, agreed: “It was a really great reminder of the importance of concrete relationships for making institutions work well.”
I well let McGinnis and Rappaport defend their paper from Goldfarb’s critique, but I wanted to chime in to flag an alternative way of thinking about legal interpretive rules — as law, not language.
Three months ago, Steve Sachs and I published an article, called “The Law of Interpretation,” which takes this legal view. (Longtime readers may recall that I also blogged about here at Volokh last year).
In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.Read more at: William Baude
The Trump administration’s release of a tax plan — or, at least, a one page summary of its goals for tax policy — has drawn renewed attention to the president’s refusal to release his own tax returns. How much would the president personally benefit from his proposal to abolish the Alternative Minimum Tax? How much does he stand to gain from a reduced 15 percent rate on certain business income?
House Democrats have proposed a number of measures that would make the president’s tax returns public, but the Republican majority has blocked these efforts (despite defections by two of their members). With the president unlikely to release his returns and Congress unlikely to force him to, state lawmakers are looking for creative ways to compel disclosure of the president’s tax filings.
One such strategy, which state lawmakers in New York are pursuing, would lead to the immediate release of President Donald Trump’s state tax returns. A bill pending in Albanyleverages the Empire State’s unique position as the sitting president’s lifelong home. It would require the state’s tax authority to publish any New York state returns filed by the president, the vice president, and all statewide elected officials. That bill would apply to returns filed in the past five years as well as all New York state returns filed by those officeholders in future years.Read more at: Daniel Hemel
Harvey Nixon age 85. Beloved husband of the late Shellie Nixon nee Keir. Loving father of Jamin (Phoebe) Nixon, Marian Nixon and Paula Nixon. Devoted grandfather of Reed, Evan, and Parker Nixon. Dear brother of David (Gloria) Nixon, the late Jacob Nixon and the late Marvin (Helene) Nixon. Proud veteran of the U.S. Navy. Service Monday 1PM at Jewish Reconstructionist Congregation, 303 Dodge Ave., Evanston, IL 60201. Interment Memorial Park. Memorials to JRC www.jrc-evanston.org or Greater Chicago Food Depository, www.chicagosfoodbank.org. Arrangements by Chicago Jewish Funerals - Skokie Chapel 847.229.8822, www.cjfinfo.com.
Published in a Chicago Tribune Media Group Publication from Apr. 28 to Apr. 30, 2017Read more at: