Because Auburn is a public institution, its actions are governed by the First Amendment. This has consequences. In its 1995 decision in Rosenberger v. University of Virginia, for example, the Supreme Court held that the University of Virginia could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. That same principle clearly applies in the Spencer situation, because Auburn routinely permits speakers who convey various points of view to speak on campus.
Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.
This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker.Read more at: Geoffrey R. Stone
ABI Resident Scholar Andrew Dawson talks with Chief Bankruptcy Judge Brendan Shannon (D.Del.; Wilmington) and Prof. Anthony Casey of the University of Chicago Law School about intercreditor and "bad boy" agreements in corporate bankruptcy cases. Prof. Casey is a co-author of "Bankruptcy on the Side" a paper that examines the question of how judges should interpret and enforce side agreements. Judge Shannon, with more than 12 years of experience on the Delaware bench, provides his thoughts on the research and the challenges that these often side agreements present in his courtroom.Read more at: Anthony J. Casey
People with tuberculosis (TB) experience infringements of their human rights on a daily basis. In far too many cases, they lack access to effective testing and treatment, face discrimination in employment and health care settings, and are unnecessarily detained and isolated against their will. Yet, even as TB has surpassed HIV as the top infectious disease killer in the world and the global threat from multidrug-resistant TB continues to grow, the ethical and legal issues around TB remain largely neglected in national TB programs and research agendas. New approaches are needed to address the social, economic, and structural factors driving the epidemic and drug resistance.
Commendably, this journal featured a special section on TB and the right to health in June 2016. As outlined in the editorial and a series of articles in the section, a human rights-based approach to TB establishes and protects the rights of people living with and vulnerable to TB, including the rights to life, health, non-discrimination, privacy, participation, information, liberty of movement, housing, food, water, and to enjoy the benefits of scientific progress. This includes access to the most recent treatments and diagnostic tools. In addition, human rights law at the international and regional levels and national constitutions create corresponding legal obligations for governments and responsibilities for private actors, promoting accountability and access to remedies for rights violations.
In line with this rights-based framework, the Stop TB Partnership’s Global Plan to End TB 2016–2020 calls for a human rights- and gender-based approach to TB grounded in international, regional, and domestic law. The Global Plan acknowledges that TB programming will not be successful unless global and national programs ground their work in human rights and gender equity.
As part of the Global Plan’s implementation, the TB and Human Rights Consortium—whose members include the Stop TB Partnership, University of Chicago Law School International Human Rights Clinic, and KELIN (Kenya)—has launched an inclusive, consultative process to promote adoption of the Nairobi Strategy on TB and Human Rights. Led by people with TB, TB survivors, and other allies, the strategy aims to implement several streams of work to foster diverse, focused, and sustained advocacy efforts.Read more at: Brian Citro
How Nicholas Stephanopoulos's "Efficiency Gap" Offers a Way to Identify Unconstitutional Gerrymandering
Since drawing compact districts is not a cure-all, solving the gerrymandering problem also requires ways to measure how biased a given map is. In a 2006 ruling, the Supreme Court offered tantalizing hints about what kind of measure it might look kindly on: one that captures the notion of “partisan symmetry,” which requires that each party have an equal opportunity to convert its votes into seats.
The court’s interest in partisan symmetry, coming after its rejection of so many other possible gerrymandering principles, represents “the most promising development in this area in decades,” wrote two researchers—Nicholas Stephanopoulos, a law professor at the University of Chicago, and Eric McGhee, a research fellow at the Public Policy Institute of California—in a 2015 paper.
In that paper, they proposed a simple measure of partisan symmetry, called the “efficiency gap,” which tries to capture just what it is that gerrymandering does. At its core, gerrymandering is about wasting your opponent’s votes: packing them where they aren’t needed and spreading them where they can’t win. So the efficiency gap calculates the difference between each party’s wasted votes, as a percentage of the total vote—where a vote is considered wasted if it is in a losing district or if it exceeds the 50 percent threshold needed in a winning district.
The two have proposed the efficiency gap as the centerpiece of a simple standard the Supreme Court could adopt for partisan gerrymandering cases. To be considered an unconstitutional gerrymander, they suggest, a district plan must first be shown to exceed some chosen efficiency gap threshold, to be determined by the court. Second, since efficiency gaps tend to fluctuate over the decade that a district map is in force, the plaintiffs must show that the efficiency gap is likely to favor the same party over the entire decade, even if voter preferences shift about somewhat.Read more at: Nicholas Stephanopoulos
Mark N. Templeton on the role of Democratic AGs in Fighting Trump Administration’s Environmental Policies
State attorneys general have long used their power to shape federal policy, and their involvement in a case can have a significant impact, often giving litigants legal standing to challenge the government.
“From a legal perspective, it’s really helpful for a state to be on the case,” said Mark Templeton, head of the environmental law clinic at the University of Chicago’s law school, and a former environmental regulator in Missouri.
“There are specific and useful state interests in these national policies.”Read more at: Mark N. Templeton
America is closely watching the lawsuit that attorneys for the “re-accommodated” United passenger, Dr. David Dao, said they will file. Can Dao win the lawsuit?
United’s liability would depend on what its contract with the passenger says. This is a document that no person in his or her right mind has ever read, if only because it is 37,000 words long – quite a bit longer but no less dispiriting than Hamlet. Yet it is a legally enforceable statement of United’s obligations, since passengers accept it when they purchase the travel.
We read this contract, and discovered a surprise. Surely, you’d think, United’s lawyers worked hard to draft a contract that would allow United to demand passengers on oversold flights to surrender their seats, as the airline did prior to the infamous flight. The lawyers certainly tried. But, astonishingly, it’s not clear that they succeeded.Read more at: Omri Ben-Shahar Faculty: Lior Jacob Strahilevitz
Henry James once offered the following advice to would-be writers: “Try to be one of the people on whom nothing is lost.” Martha Craven Nussbaum is one of those people on whom nothing is lost. Keenly observant, fascinated by life, and analytically brilliant, her memory locks everything in. She is not a novelist, of course, but a philosopher and a renowned public intellectual of extraordinary range. She engages with constitutional lawyers about human rights and debates policy with economists. And she has always been deeply committed to the humanities; few have championed the field as well as she has in Cultivating Humanity and Not for Profit.
Martha began her academic career in classical philology. It is telling that she has always admired Aristotle, who was unusual in being curious rather than repulsed by the wet embodiment of the animals he studied, from mollusks and octopi to humans and other “political animals.” Martha’s first book translated and provided searching commentary on Aristotle’s De Motu Animalium, which is about animals that move about—whether slimy or scaled, furry or smooth, but all of them vulnerable. Her interpretation emphasized that, as they move, animals depend on an ability to perceive the world interpretively—to see something as dangerous or delicious: a primitive form of imagination. Her second book was The Fragility of Goodness. It drew on the ancient Greek poets and philosophers to explore how bad luck or ill-fated circumstance can force us to choose between tragically clashing values—for example, as Agamemnon was forced to choose between the life of his daughter and the good of the state.
I first got to know Martha through studying Aristotle with her at Harvard. She combined a classicist’s formidable memory of texts with a philosopher’s passion to question them. Even after moving to Brown University, she continued to lead a Greek reading group in Cambridge. Years later, encountering passages in her writings that elaborated ideas she had floated in that informal setting, I came to realize that her memory also locks onto her own thoughts, sorting her many observations and pieces of argument for later use.Read more at: Martha C. Nussbaum
On a cold January day in Chicago, Martha C. Nussbaum, the well-lauded philosopher and 2017 Jefferson Lecturer, spoke with NEH Chairman William Adams about the advantages of a humanities education, her passion for ancient Greek and Roman literature, her work at the University of Chicago law school, and her contributions to the field of international development. Several other topics were broached, and still many others could have been added to the agenda, given the extraordinary range of Nussbaum’s thought, which flows mightily across disciplines to better understand the wellsprings of human flourishing and what obstacles stand in the way.
WILLIAM D. ADAMS: Your book Not for Profit made the case for the importance of the humanities in American democratic life. Have things changed substantially since it was published in 2010?
MARTHA C. NUSSBAUM: Data on humanities majors is still a source of concern, but there’s been a big increase in total enrollments in humanities courses in community colleges. And in adult education, too, there’s been a huge upsurge. The preface to the new edition of my book gives data and sources on all this.
We are lucky in the United States to have our liberal arts system. In most countries, if you go to university, you have to decide for all English literature or no literature, all philosophy or no philosophy. But we have a system that is one part general education and one part specialization. If your parents say you’ve got to major in computer science, you can do that. But you can also take general education courses in the humanities, and usually you have to.Read more at: Martha C. Nussbaum
I think I agree with much or all of what Randy writes, but I want to speak up in defense of a particular conception of liquidation, which I think was James Madison’s. Madison’s notion of constitutional liquidation, properly understood, need not be hostile to originalism. My “Constitutional Liquidation” paper is still very much a work in progress, so much of the framework will have to wait until later, but at least one element of liquidation is important for these purposes: Liquidation only operated to the extent that the Constitution itself was open-ended or less than clear. Indeterminacy was a prerequisite for liquidation.Read more at: William Baude
The director of the University of Chicago Law School’s Institute for Justice Clinic on Entrepreneurship and a research fellow for the State and Local Policy Project at the Mercatus Center at George Mason University agree that Illinois’ business regulations are especially tough on the state’s lower-income residents and entrepreneurs.
They spoke to Illinois News Network ahead of a Thursday forum entitled “Why Illinois Regulatory Policy Matters.” The event, hosted by Gov. Bruce Rauner, features a public forum with several speakers focusing on how regulatory reform can boost the state’s economy.
“From my experience working with low-income entrepreneurs in Chicago every day, I have seen the way over-regulation can grind down small businesses,” Elizabeth Kregor, director of the University of Chicago Law School’s IJ Clinic on Entrepreneurship, said.Read more at: Elizabeth Kregor
It is tempting to think that the problem of bumping passengers from flights could be solved if airlines stopped the practice of overbooking. Paying for air travel should guarantee the passenger a confirmed, not a deniable, seat. But it is not clear that such change would benefit consumers. Some travelers do not show up for their flights, and unless airlines overbook they will fly with more empty seats. Even with current overbooking, planes fly (on average) 85% full. If this “load factor” were to go down due to a legal mandate against overbooking, airlines would likely have to make up the diminished revenues by raising airfares.
Overbooking is like Spirit Airlines’ cramped seats. It’s uncomfortable, but cheap. We know very well that passengers often prefer those bargains—less leg room, lower prices—because we observe them buying budget fares despite the endless availability of business class comfort. For the same reason, most passengers prefer non-refundable airfares and decline “cancellation insurance,” fully recognizing that the cost saving comes with a downside.
Would these provident passengers who buy non-refundable non-comfort airfares want to pay a little more per ticket to avoid the risk of boarding denial ? If, say, airlines invited consumers to check a “non-bumping" add-on box at the time of reservation, offering for an extra fee the assurance against involuntary removal from a flight, would people purchase it? If the answer is “no,” does that change our mind about the practice of overbooking?Read more at: Omri Ben-Shahar
State lawmakers across the country are pursuing creative methods to force President Trump to release his federal income tax returns before he can run for reelection in 2020. Unfortunately for citizens interested in greater presidential transparency, those efforts are likely to fail.
There is, however, a much easier way for state lawmakers to force the disclosure of Trump’s tax information: publishing the state tax returns already in their possession, which would reveal much of the same information appearing in his federal documents.Read more at: Daniel Hemel
The Illinois Mathematics and Science Academy (IMSA) Board of Trustees honored four Alumni at a ceremony March 30, 2017 in recognition of their accomplishments and contributions to their fields of endeavor, to IMSA, and to the citizens of Illinois, our nation and the world.
“This is a day each year that I look forward to with great anticipation—to have the opportunity to hear from our Alumni as they share their professional stories with us and we recognize their accomplishments in pursuit of excellence,” remarked Sheila MB Griffin, Chair of the IMSA Board of Trustees.
Ms. Claudia Flores, J.D., ’93 received the Alumni Trailblazer Award honoring alumni who have earned national or international prominence for a groundbreaking initiative that has redefined and improved the way significant numbers of citizens live, learn or work. Flores, an Assistant Clinical Professor of Law and Director of the International Human Rights Clinic (IHRC) at The University of Chicago Law School, works to promote and protect the human rights of individuals and communities globally. Additionally, she served as constitutional and legal advisor for the United Nations in East Timor and Zimbabwe. She also managed a program to combat human trafficking in Indonesia and was a staff attorney at the American Civil Liberties Union Foundation in the Women’s Rights Project. She earned her J.D. from New York University School of Law and received her B.A. in Philosophy from the University of Chicago.Read more at: Claudia M. Flores flores-imsa.jpg
In August 2014, the online transportation network Uber launched a new service named ‘UberPool,’ which allows Uber users to share the cost of a car ride with strangers traveling along a similar route. In the two years after its launch, UberPool recorded more than 100 million rides and came to account for approximately 20% of Uber trips. But while Uber has successfully facilitated pooling among its millions of customers, it has done little to facilitate a different kind of pooling among the 400,000-plus drivers who compose its workforce: the pooling of risk. In a forthcoming article for the University of Chicago Legal Forum, I focus on five types of risk: health risk, longevity risk, mortality risk, disability risk, and productivity risk. I explain how these risks are pooled in traditional workplaces and why gig economy platforms such as Uber fail to facilitate such pooling.Read more at: Daniel Hemel
Paradoxically, official harassment policies and grievance procedures often end up creating obstacles to women’s ability to assert their rights, according to research by Anna-Maria Marshall, a sociologist at the University of Illinois.
“That is in part because companies put them into place as mini litigation defense centers,” Ms. Marshall said. “The way employers deal with it is to prepare to show a court or jury that they did everything they could, rather than to protect women in the workplace.”Read more at: Anna-Maria Marshall
Editor's note: The Pro Bono Board, a student group committed to expanding pro bono knowledge and opportunities to students, names a Pro Bono Volunteer of the Month. There are five winners for April: Simon Wiener, Mariah Garcia, Lucia Goin, Joseph Nunn, and Laurel Hattix, all ’19. Chris Bobby, ’18, a member of the board, wrote this story on their work. For more information on pro bono work, visit the Pro Bono Service Initiative website or contact Nura Maznavi in the Office of Career Services.
Simon Wiener, Mariah Garcia, Lucia Goin, Joseph Nunn, and Laurel Hattix, all ’19, each came to the Law School with a mission: to not only identify big problems, but also do something about them. Particularly after the tumultuous campaign and election, these five students wanted to go beyond merely talking about issues in their classes. However, being first-year law students without their 711 licenses, they needed to find a proactive way to channel this energy. That’s when they partnered with the National Lawyers Guild (NLG).
NLG is the nation’s oldest and largest progressive bar association, and was the first to racially integrate in the United States. This year, these five students rejuvenated the formerly defunct University of Chicago student chapter. Part of their service has included a focus on legal training, helping those who are imprisoned while protesting, and engaging in “legal observation,” which involves watching police interaction with protestors, specifically in Chicago. As Garcia, the group’s co-president, has pointed out, NLG differs from other progressive organizations in that it provides community lawyering rather than cherry picking its cases.
Such motivation is why these students initiated this valuable pro bono service. Wiener, the other co-president of the Law School’s NLG chapter, takes NLG’s approach to heart in treating the protestors they work with as “clients,” and sees his mission as being part of a movement rather than addressing a single issue. Similarly, Garcia sees the NLG as both “providing forums and facilitating movements of marginalized communities.” Unlike single-issue pro bono initiatives, these students are attempting to fill another much-needed space. While the current focus of their work has been on providing legal observation at protests, they have plans next year to initiate more trainings, workshops, and touch on other issues as needed for communities in Chicago.
The five representatives from NLG have diverse plans after law school, all with the unifying theme of social justice and community-impact work. Wiener is interested in public defense and legal work that fights against injustice generally. Garcia wants to work against state-sanctioned violence and stand up for women who fight against criminal abusers. Additionally, Hattix wishes to return to academia someday and bring critical race theory to the field, as well as prison abolitionism. Nunn wishes to work on issues of international human rights and constitutional reform while Goin is interested in topics of immigration and migrant worker’s rights.
The experience of partnering with NLG has been transformative for these students and the others who have joined their work. For Hattix, her experience providing legal observation for protestors was a powerful opportunity to watch people willing to risk arrest to further justice. This opportunity has provided those involved with the chance to distinguish between what “the law says and what justice really is,” she said. A particular instance of this power was the night the NLG provided legal observation at O’Hare airport for the protests against President Trump’s travel ban.
The power of community lawyering has been particularly salient for Wiener: “At a press conference for the shooting of Joshua Beal they asked for NLG support,” he said. “It was a powerful instance of what it looks like to stand in solidarity, to stand with people who are different than you in support of a common goal.”nlg_chapter_founders.jpg
Editor’s note: Over spring break, 28 Law School students participated the International Immersion Program, which is designed to give students the opportunity learn about international and comparative law. There were three trips: Hong Kong and Singapore, Russia, and the Netherlands. During each, students met with lawyers, scholars, and Law School alumni, and visited law firms, international organizations, and government institutions—experiences that are captured in this slideshow. Below, Morgan Herrell, ’19, shares the story of her visit to Russia—beginning with a heart-thumping experience at border control.
My Law School classmates and I had been traveling for more than 14 hours, and we were tired as we approached Passport Control at the Moscow airport. It was the start of a two-week visit to Moscow and St. Petersburg as part of the Law School’s International Immersion Program, and we were eager to get to our hotel, rest up, and begin exploring the Russian legal system; our series of meetings kicked off first thing in the morning. Not only had Russia dominated the news for months back home, many of us had studied the language or spent time in the country previously, and we were interested to see how much things had really changed in recent years.
I’d briefly lived in St. Petersburg in 2010, and I’d been through the tense ritual at Russian border control before, waiting in a small metal booth as an expressionless officer examined my passport. This time, however, was different. Instead of waving me on, the officer picked up his phone, and, after a very quick whispered conversation, told me to step out of line and wait.
And so I stepped back, and waited, until the officer eventually told me that there were unspecified “problems” with my visa. Meanwhile, my other 11 classmates and a member of the Law School staff all filed through without problem, to wait on me in Russia proper.
After an hour of tense waiting, the officers issued me a new entry visa there in the Sheremetyevo terminal. Still, it was a memorable beginning to what turned out to be a fascinating, and generally very friendly, visit—one that began with a week in the capital, followed by another in St. Petersburg, the imperial “Window to the West.” We met with attorneys, law students, and activists, and many of us were surprised by how willing they were to frankly discuss their work and study in today’s Russia. Only once did a group hesitate to answer a question—in that case, over concerns that the lack of any definitions in Russia’s “gay propaganda” law could potentially criminalize even theoretical discussion. But others were willing to explain their take on this law with us, along with such controversial issues as the annexation of Crimea, the Russian Orthodox Church’s new political influence, and the condition of the Russian criminal justice system.
Many of the practitioners we met described choices few American lawyers would face. One prominent criminal attorney described the nature of the criminal justice system not as prosecution versus defense, but as individual versus state. His goal in most of his cases was not an acquittal, he said, citing astronomically small acquittal rates, but rather to minimize sentences as much as possible. His clients could live with a criminal record, but not through decades of confinement in extremely harsh conditions. When we visited the Institute for Law and Public Policy, an energetic NGO pioneering strategic constitutional litigation in Russia, we found out that the day before the doors to their building had been blocked by reporters from the state-run television channel NTV, who demanded that visitors explain why they wanted to undermine the Russian government.
The law students we met also offered an honest window into the state of legal education and the profession. The students excitedly welcomed us into their universities; they were eager to meet Americans, some for the first time, and to show off their school and ask us about ours. We were repeatedly asked whether we were on Instagram or Facebook. But along with this earnest excitement came notes of cynicism about the state of the profession they were entering. One student explained that many prefer the private sector to government or judicial work, believing that it is impossible to remain moral or ethical in those positions.
Ultimately, the theme we kept circling back to in these conversations was the gap between the law as it exists on paper and the law as implemented in daily life. That same attorney who painted such a dismal picture of the criminal justice system praised the Russian Criminal Code. Over our two weeks in Moscow and St. Petersburg, we heard almost the exact same words multiple times describing the Russian Constitution—that on its own it is “one of the best in the world,” but adherence to its tenets is uneven and unpredictable. The state governs law, they told us, not the other way around.
At first glance this might paint a disheartening picture of the legal profession in contemporary Russia, but our trip also impressed upon us that there are many dynamic, determined modern Russian lawyers. In our meetings, they matched their frank evaluation of the rule of law in Russia with a determination to zealously advocate for their clients and their country. It was a reminder to both appreciate and continue to champion our own justice system back home.
Russia’s image in the United States, especially now, is very often one of coldness, secrecy, and dysfunction. And while the journey towards rule of law still has miles to go, I believe every member of our group would attest to the warm and open welcome we found at every university, law firm, or civil society organization we visited. The image most representative of our time in Moscow and Petersburg was not Passport Control barring me from entering the country, but rather their officers putting in extra work late on a Sunday evening to make sure I could come in.iip_russia_-_st._basils_cathedral.jpg
In the context of guest workers, can we be confident the person will leave the country after their visa expires? Do we know that a refugee is not secretly harboring terrorist sympathies? The officers doing the screening of potential entrants are unlikely to be able to elicit such information from interviews. Furthermore, home state governments may not have reliable information themselves. Indeed, there may be an inverse relationship between the quality of record-keeping in a nation and the likelihood that it is a source of refugees. Ultimately it is only the immigrants themselves who have full information about their trustworthiness.
There’s another complication. Even if screening were 100 percent effective, people’s intentions and positions can change. A guest worker who originally planned to return to her home country may face altered personal circumstances and seek to stay. More grimly, a member of an immigrant community might become alienated once in the United States, become associated with similarly disgruntled people and begin to engage in hostile activity. We hasten to add that statistical evidence shows that this is extraordinarily rare. Still, alienated immigrants, however few in number, make up a larger proportion of bad actors than so-called Trojan Horse immigrants and refugees.
When you reframe vetting as an informational challenge, it opens the door to novel solutions. Our proposal is something we call a “trust circle” — a concept that borrows from cutting-edge ideas that some lenders in the developing world are already using to judge the reliability of people lacking credit records. The key idea is to make use of information from those who can best assess the likely behavior of entrants: members of immigrant communities themselves.Read more at: Tom Ginsburg
The company tried to push the lawsuits it faced into Admiralty Court — an arcane jurisdiction where its liability would be limited to the cost of the barge and the tug that maneuvered it. The case went all the way to the U.S. Supreme Court. Lawrence E. Rosenthal, a deputy corporation counsel for the city, argued that Great Lakes Dredge & Dock was asking the justices “to bring admiralty law into the basement of Marshall Field’s.”
Seven justices felt that’s exactly where it belonged. And the company ended up escaping liability.
The case of “Jerome B. Grubert v. Great Lakes Dock & Dredge” became a landmark ruling, featured in textbooks and classrooms.
“It’s a very important case,” says Randall Schmidt, a University of Chicago Law School professor. “What Grubart did is, basically, clarified what’s required for admiralty jurisdiction. It still provides the basic framework in tort cases.”
Schmidt spends two weeks each semester in class on Grubert.
“It’s a very bizarre case,” he says. “If I were an admiralty law professor making up exam questions, this would a perfect exam question.”Read more at: Randall D. Schmidt
Geoffrey R. Stone tells the epic story of how sex came to be legislated in America; Linda Heywood introduces us to an African queen cooler than Cleopatra; and John Dvorak gives us a lesson in the total eclipse of the heart. Er, sun.Read more at: Geoffrey R. Stone