Law School News

Updated: 2 hours 45 min ago

William Baude on Judicial Decisions and Judicial Authority

Mon, 02/06/2017 - 13:17
The Deadly Serious Accusation of Being a “So-called Judge” William Baude The Volokh Conspiracy February 4, 2017

Consider two different ways that an executive official can criticize a federal court. One is to criticize the court’s decisions. A second way is to criticize the court’s authority.

Consider two different ways that an executive official can criticize a federal court.

One is to criticize the court’s decisions. That is, to say that the court got the law wrong, got the facts wrong, or generally didn’t rule the right way. These criticisms can have stronger and weaker forms, as Josh Blackman discusses here, but they are relatively common. After all, every government decision to appeal a federal court ruling entails saying that the court got something wrong. (Asterisk.)

A second way is to criticize the court’s authority. That is, to say that the court didn’t or shouldn’t have the power to decide the case at all. Again, these criticisms can take different technical forms, such as to claim a lack of jurisdiction, an improper appointment, etc. This form of criticism is much less common. After all, federal courts still have authority in many, even most, of the cases they decide, even when they decide them wrongly. As I have written, the judicial power is the power to issue judgments that bind regardless of whether they are right or wrong.

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Faculty:  William Baude

Katherine Booth, '19, Named January Volunteer of the Month

Mon, 02/06/2017 - 08:13
Luke Sperduto, ’18 Law School Communications February 6, 2017

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. The January honoree is Katherine Booth, '19. Luke Sperduto, ’18, a member of the board, wrote this story on her 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.

Katherine Booth, '19, visited several precincts on Election Day 2016. Her purpose: to assess the accessibility of voting booths. As a volunteer with Equip for Equality, an Illinois nonprofit dedicated to advancing the rights of people with disabilities, Booth had been trained to identify obstacles facing voters with disabilities. She and fellow volunteer surveyors measured everything from the slope of handicap ramps to the privacy of the designated accessible voting booths. They even measured "the pressure that you would need to open doors" leading into the buildings where the precincts were located.

"I had never thought about that," Booth reported afterward, noting that "it was pretty eye opening."

Booth, who was recognized by the Pro Bono Board as the January Volunteer of the Month, is no newcomer to advocating for the human and civil rights of people with disabilities. Growing up, she and her brother often joined their mother, a teacher with the Chicago Public Schools, when she organized Special Olympics events and other similar programs. Her mother was deeply involved, and her sister, who has  Down syndrome, benefited from relationships established through Best Buddies, an organization that creates social, professional, and leadership opportunities for people with disabilities. Partly because of these family experiences, Booth has always been motivated to pay forward the kindness her family received.

One of her favorite aspects of college was the time she spent with the Boys and Girls Club of Durham, NC. Even if it was just leading afterschool activities or teaching third-grade math, volunteering with the Boys and Girls Club was a constant reminder to Booth that she had something to contribute to the community. That contribution is one of the ways it feels good to help people, she said.

Before coming to law school, Booth worked for the Chicago Council on Global Affairs and served on the associate board of the Brain Research Foundation, a Chicago-based nonprofit that provides seed grants to medical researchers investigating neurological disorders. She also worked for the Stanford Graduate School of Business, helping run a program to teach entrepreneurs from nonbusiness backgrounds how to bring their ideas to market. Now a part of the Doctoroff Business Leadership Initiative at the Law School, Booth is excited by the prospect of becoming involved with the Innovation Clinic and the Polsky Center for Entrepreneurship and Innovation. Eventually, she aims to work with emerging growth companies looking to go public or get acquired by larger firms.

Yet even amid the pressures of 1L year, Booth manages to get to Kenwood Academy every week to help students there with essays and college applications. For her, the challenge of fitting volunteering into her schedule is more than worth the effort. Sometimes you "just need to get outside of the Law School bubble a little bit" to be reminded that the Law School is part of a larger community, she said. As the first-year representative for Neighbors, the community service student group that runs the Kenwood afterschool program, Booth praised the reciprocal benefits of working with high school students.

"I want them to have exposure to law students," she said, "and I want to have exposure to them. I never met a law student growing up, and I didn't know what that life was like." Plus, she added, dispensing basic writing advice occasionally reminds her of ways she can improve her own writing for law school assignments. Mentoring is a two way street, and Booth credits her mentees as much as her mentors with molding her into the advocate she aims to become. 


Daniel Hemel: "A Far Better Supreme Court Strategy for Furious Democrats? Holding Fire"

Fri, 02/03/2017 - 14:16
A Far Better Supreme Court Strategy for Furious Democrats? Holding Fire Daniel J. Hemel and David J. Herzig The Wall Street Journal February 2, 2017

Using the filibuster to block Judge Gorsuch — rather than reserving it for a future court fight – could have disastrous consequences for Democrats in the short term, the medium term and the long term.

Senate Minority Leader Charles Schumer says that Supreme Court nominee Neil Gorsuch will be confirmed only if he garners 60 votes in the upper chamber. That’s code for a filibuster—though Mr. Schumer did not use the “f-word” in a series of tweets announcing the 60-vote “prerequisite.”

It’s a potentially dangerous maneuver. Using the filibuster to block Judge Gorsuch — rather than reserving it for a future court fight – could have disastrous consequences for Democrats in the short term, the medium term and the long term.

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Faculty:  Daniel Hemel

Eric Posner on the Nixon-Trump Comparison

Fri, 02/03/2017 - 13:17
The Nixon-Trump Comparison Eric Posner February 2, 2017

Trump’s “Monday Night Massacre” of Sally Yates recalls Nixon’s Saturday Night Massacre, but the connection between the two presidents is deeper. There is, of course, the psychological dimension: Trump, like Nixon, is an outsider (or sees himself as one) and deeply resents the elites who look down on him.

Trump’s “Monday Night Massacre” of Sally Yates recalls Nixon’s Saturday Night Massacre, but the connection between the two presidents is deeper. There is, of course, the psychological dimension: Trump, like Nixon, is an outsider (or sees himself as one) and deeply resents the elites who look down on him.

But the real connection goes deeper still. Nixon rose to power by attacking political elites for coddling communists during a period in which the public was deeply worried about the threat posed by the Soviet Union, first, and then Red China. International communism really was a threat to the United States, but most of the Soviet spies and communist sympathizers in the U.S. government had been caught and purged before Nixon came along. Nixon mastered an effective demagogic tactic: he not only portrayed reasonable security policies in place at the time as inadequate in light of an exaggerated threat; he argued that the inadequacy of those security policies served as evidence that government officials were indifferent to public safety and indeed sympathized or even collaborated with the enemy.

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Faculty:  Eric A. Posner

Daniel Hemel on the Johnson Amendment

Fri, 02/03/2017 - 12:30
The Johnson Amendment Lives Another Day Daniel Hemel Medium February 2, 2017

President Trump says he wants to “totally destroy” the Johnson Amendment, the provision that denies § 501(c)(3) status to organizations that intervene in campaigns for public office. 

President Trump says he wants to “totally destroy” the Johnson Amendment, the provision that denies § 501(c)(3) status to organizations that intervene in campaigns for public office. His comments come one day after two House Republicans introduced the Free Speech Fairness Act, and Trump’s “totally destroy” remark seems to be a reference to that legislation. Yet the Free Speech Fairness Act would do nothing of the sort: indeed, it would leave the Johnson Amendment in place and allow only “de minimis” campaign expenditures by § 501(c)(3) organizations.

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Faculty:  Daniel Hemel

Eric Posner on The Executive Unbound and Trump

Fri, 02/03/2017 - 12:17
The Executive Unbound, Trump ed. Eric Posner February 2, 2017

Several years ago I wrote a book with Adrian Vermeule called The Executive Unbound. The book was widely interpreted to argue something like: “the president has unlimited power and that is a good thing, too.”

Several years ago I wrote a book with Adrian Vermeule called The Executive Unbound. The book was widely interpreted to argue something like: “the president has unlimited power and that is a good thing, too.” Last week, I published an op-ed in the New York Times (written with my colleagues Daniel Hemel and Jonathan Masur) that argued that a court might block Trump’s plan to build a wall on the Mexican border if he cannot persuade the judge that the wall passes a cost-benefit analysis. The op-ed emerged in part from as yet unpublished work with Masur that argues that judges should require regulatory agencies to use cost-benefit analysis. Are these two positions consistent? The executive must be either bound or unbound; which is it?

The popular interpretation of The Executive Unbound was always a caricature. The Executive Unbound compared two systems of government: the “liberal legalism” model in which Congress takes the lead in making policy within a system of separation of powers; and the “presidential primacy” model in which most policymaking takes place in the executive branch, by regulatory agencies under the broad supervision of the president. Our argument was that while the liberal legalism model remains the official story, the presidential primacy model more accurately depicts the workings of the government.

This confusion between ideology and reality is important. Liberal legalists have constantly complained about the wholesale shift of power to the president from Congress and the courts. And yet this shift has occurred partly because those same liberal legalists have supported consistent incremental shifts in this direction, based on the needs of governance as they developed over many decades. Just think how recently liberals supported Obama’s immigration orders (after Congress gridlocked on immigration), Obama’s climate regulation orders (after Congress gridlocked on climate change), and Obama’s recess appointments (after Congress gridlocked on his nominations). We argued that the long-term trajectory in favor of presidential power—more generally, the centralization of power within the national government in the office of the presidency—reflects economic, political, and technological trends that are (more or less) inevitable, and in the face of which the separation of powers system gridlocks. To that extent, if you want government to govern, you need to learn to live with presidential primacy.

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Faculty:  Eric A. Posner

Omri Ben-Shahar on How Data Privacy Is Shaped By Market Forces

Wed, 02/01/2017 - 15:54
Privacy Protection Without Law: How Data Privacy Is Shaped By Market Forces Omri Ben-Shahar Forbes January 30, 2017

Data privacy anxiety is also manifesting itself in host of legal initiatives aimed primarily at improving the notices and disclosures that consumers receive, in the hope that better “transparency” would produce informed choice and individual control.

You must not have noticed, but this week, we celebrated the National Data Privacy Day. A holiday declared by Congress in 2009, it aspires to promote people’s control over their personal information. It is a day for us to reflect on how much information we share online, how safe it is, and an opportunity to “create dialogues among stakeholders interested in advancing data protection and privacy.”

Anxiety over online data privacy helped produce not just a national holiday with its highfaluting “dialogues” and “be privacy aware” clichés. Data privacy anxiety is also manifesting itself in host of legal initiatives aimed primarily at improving the notices and disclosures that consumers receive, in the hope that better “transparency” would produce informed choice and individual control.

Recently, this anxiety was directed vis-à-vis Google, alleging that it misleadingly changed its privacy policy to collect more information for its tailored ads. Google’s updated legal notice explained (correctly) to its users that they now have more choice to opt out of ads-personalization. But in the same breath—and in small print—Google also increased the amount of data it compiles on users, creating more individualized profiles and curating more relevant (and more effective) ads. The FTC and the European Union are investigating whether consumers’ consent was acquired deceptively, without giving users clear notices.

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Faculty:  Omri Ben-Shahar

Ronald H. Coase Papers Accessible in University's Special Collections Research Center

Wed, 02/01/2017 - 11:28
Ronald H. Coase Papers 1805-2013 D'Angelo Law Library Blog January 30, 2017

The Ronald H. Coase papers are ready for use at the Special Collections Research Center. The Nobel Prize winning economist taught at the Law School from 1964 until 1982, where he edited the Journal of Law and Economics. Mr. Coase’s papers on social costs, broadcasting regulation, and the nature of the firm were fundamental to the field of Law and Economics. A detailed finding aid provides access to the papers.

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Hemel Discusses Gorsuch Nomination on Chicago Tonight

Wed, 02/01/2017 - 10:34
President Trump Announces Neil Gorsuch as Supreme Court Nominee Chicago Tonight WTTW January 31, 2017

President Donald Trump announced Neil Gorsuch as his nominee to replace the late U.S. Supreme Court Justice Antonin Scalia on Tuesday night. Scalia died unexpectedly during former President Barack Obama's final year in office, but Senate Republicans refused to consider his nominee, Merrick Garland.

During his nomination of Gorsuch, Trump took a moment to recognize the late Scalia’s wife, Maureen, who was present at the announcement. Trump said Scalia’s “image and genius were in my mind throughout the decision-making process.”

“The qualifications of Judge Gorsuch are beyond dispute,” Trump said. “He’s the man of our country and a man who our country really needs and needs badly to ensure the rule of law and the rule of justice.”

Gorsuch is a federal appeals court judge in Denver. He received his law degree from Harvard and clerked for former Supreme Court Justice Byron White and current Justice Anthony Kennedy. 
“Standing here in a house of history and acutely aware of my own imperfections, I pledge that if I am confirmed I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country,” Gorsuch said. 

Following Trump’s announcement, Chicago Tonight had reaction from Daniel Hemel, assistant professor at the University of Chicago law school and a former clerk for Justice Elena Kagan; and Travis Lenkner, managing director of Burford Capital and a former clerk for Justice Anthony Kennedy.

Faculty:  Daniel Hemel

Geoffrey Stone on the Gorsuch Nomination

Wed, 02/01/2017 - 10:30
Sorry, Neil Gorsuch. The Supreme Court Vacancy Was Already Filled Geoffrey R. Stone Time February 1, 2017

If Antonin Scalia died today, and Donald Trump thereafter nominated Judge Neil Gorsuch as his successor, I might support Judge Gorsuch’s confirmation. Although Judge Gorsuch has not yet established himself as a jurist of any distinction, he is generally regarded as a capable judge with a good character. Moreover, although he is a very conservative jurist, he would be replacing a justice with a similar ideological disposition. In such circumstances, just as I supported the confirmation of Judge John Roberts to succeed Chief Justice William Rehnquist, so too would I be inclined to support the confirmation of Neil Gorsuch to succeed Antonin Scalia, even though I strongly disagree with Gorsuch’s very conservative ideology.

But Antonin Scalia did not die today. He died almost a year ago, and President Barack Obama nominated Chief Judge Merrick Garland to succeed him. Chief Judge Garland is a jurist of impeccable credentials and personal character who is widely celebrated for his moderate approach to the law. President Obama nominated Garland not only because of his distinguished reputation as a jurist, but also because as a relatively moderate judge he should have been more than acceptable even to the most conservative Senate Republicans. In typical Obama fashion, Garland’s nomination was an effort to compromise in order to win the support of Senate Republicans.

Chief Judge Garland should have been confirmed easily. Indeed, every Supreme Court nominee in living memory with anything approaching Chief Judge Garland’s impeccable credentials and record of moderation has been easily confirmed by the Senate, without regard to whether the Senate was controlled by the President’s party or by the opposing party. This was true, for example, of such Republican nominees to the Court as Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter. Even the extremely conservative Antonin Scalia was confirmed by a vote of 98-0.

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Faculty:  Geoffrey R. Stone

William Baude on Two Models of Lawyers in the Trump Administration

Mon, 01/30/2017 - 13:31
Two Models of Lawyers in the Trump Administration William Baude The Volokh Conspiracy January 30, 2017

Since my last post about the role of Department of Justice lawyers in the refugee executive order, more information has come out, not all of it consistent. But Zoe Tillman of BuzzFeed News has finally found a “senior DOJ official” willing to say that the White House at least sought review by the Office of Legal Counsel for “form and legality” (which are magic words describing the traditional OLC role).

In any event, you might reasonably be wondering why, of all of the questions to ask this weekend, one would care whether OLC reviewed the order. After all, the order is what it is. It doesn’t get better in substance if we learn more about where it came from. (Full disclosure: I interviewed, and was rejected for, jobs at OLC on two different occasions under two different administrations. But I don’t think that affects my judgment.)

But understanding how the Trump administration works may help us predict how it will behave in the future. Those predictions have been particularly hard to make given the unprecedented nature of the administration, and so some of us are grasping at whatever info we can get.

With respect to lawyers in particular, here is what I mean. Consider two possible models of the Trump administration:

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Faculty:  William Baude

Visiting Committee Member Chaka Patterson Named as Civil Action Bureau's Chief

Mon, 01/30/2017 - 11:16
Foxx’s team takes shape with hires David Thomas Chicago Daily Law Bulletin January 24, 2017

As part of her efforts to bolster the county’s civil legal team, Cook County State’s Attorney Kimberly M. Foxx named Chaka M. Patterson, a Chicago-based partner at Jones Day, as the Civil Actions Bureau’s chief.

Cook County State’s Attorney Kimberly M. Foxx announced on Monday the appointment of four new bureau chiefs as well as an incoming reorganization of the state’s attorney’s office.

In a phone interview, the county’s top legal official, six weeks into her term, also reiterated a commitment to priorities she campaigned on, including elevating the role of her office’s Civil Actions Bureau and starting a unit to address gun violence. But that takes time, she said. 
As part of her efforts to bolster the county’s civil legal team, Foxx named Chaka M. Patterson, a Chicago-based partner at Jones Day, as the Civil Actions Bureau’s chief. Patterson will take over sometime next month, Foxx said.

That group within the state’s attorney’s office, which handles litigation and other civil matters on the county’s behalf, consisted of 83 assistant state’s attorneys according to the fiscal year 2017 county budget.

Patterson has experience practicing law in both the public and private sectors — a quality that made him stand out, Foxx said. His experience also includes a five-year stint at Exelon Corp. and five years between Jones Day and Skadden Arps Slate Meagher & Flom LLP. That background, Foxx said, allows him to bring “the best practices of both universes together in our civil bureau.”

But it was Patterson’s government work that could serve as a guidepost for the future of the bureau under Foxx’s watch. From 2003 to 2006, Patterson served as the chief of the Illinois attorney general’s special litigation bureau. The litigation this bureau pursued “brought in hundreds of millions of dollars in resources to the state,” Foxx said.

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Hidden Treasures: Law Library Unearths Original Letter from Marshall to Washington—And More

Mon, 01/30/2017 - 08:30
Becky Beaupre Gillespie Law School Communications January 30, 2017

An unexpected discovery in the D’Angelo Law Library unearthed an original letter from John Marshall to George Washington. And that wasn’t all.

On March 26, 1789, 22 days after the newly ratified US Constitution took effect, future Supreme Court Chief Justice John Marshall sent a letter to George Washington at his Mount Vernon estate, where the president-elect was waiting for Congress to count the votes of America’s first electors.

It was, in many ways, an unremarkable note from a Richmond lawyer to his powerful, land-owning client, merely the latest in an ongoing conversation regarding Washington’s disputed claim to a piece of land on the banks of the Ohio River. But it was also one founder writing to another: a constitutional defender who would help shape the nation’s legal system advising the man who would soon assemble the nation’s first cabinet, oversee the creation of a national government strong enough to navigate partisan debate, and suppress the Whiskey Rebellion—and whose property holdings in the Ohio River Valley were already helping push the burgeoning nation west.

It was history, living and breathing among the syllables of routine correspondence.

Which is why, when Sheri Lewis, the director of the University of Chicago’s D’Angelo Law Library, opened an unfamiliar hardbound volume from the library’s Rare Book Room last summer and glimpsed Marshall’s 227-year-old letter—the original—pasted carefully inside, her first thought was, “Oh—wow.”

What’s more, the handwritten missive wasn’t alone. The carefully constructed album that had protected it for nearly six decades, maybe more, bristled with 18th- and 19th-century Supreme Court history, mostly hand-drawn portraits and letters signed by early justices, men like John Jay, Oliver Ellsworth, Samuel Chase, Salmon P. Chase, and Oliver Wendell Holmes.

And for years nobody at the University of Chicago Law School knew it was there.

* * *

There had been clues: an old catalog entry in the D’Angelo’s records; a note in an online database maintained by the National Archives; a plaque on the library’s sixth floor honoring the album’s donor, albeit for a different generosity; and a couple of 1958 articles in back-to-back issues of the University of Chicago Law School Record. It had been the articles that ultimately led Lewis and her team to the well-preserved, but temporarily forgotten, collection in July.

“It took me awhile to really absorb how much is in here,” Lewis said one morning in early 2017, as the D’Angelo’s librarians were preparing to send the 154-page album to the central University of Chicago Library to be fully digitized. “Every piece of parchment in this book tells a story.”

It had been a busy several months since Lewis first saw the volume. In that time, she and her team created an inventory of the collection, examined it with a preservation librarian and Law School scholars, and worked to unravel the mysteries of the album, which had been given to the Law School in the late 1950s by a colorful Chicago hotelier, Louis H. Silver, ’28.

The discovery was thrilling and unexpected but, for librarians and scholars versed in archival research, it wasn’t a shock. Library science has evolved significantly since the late 1950s; back then, there were no digital inventories and few finding aids—new items were catalogued and added to the shelf. As a result, the Supreme Court collection was, in fact, never truly lost: it was well-preserved and findable to those who went looking—it’s just that, after a while, there was nobody at the Law School who would have known about it without looking. And that’s why the rediscovery wasn’t a shock. History, after all, is a decidedly human affair that takes on a slightly different shape for each generation, molded by a combination of perspective, whim, and fortuity. People discover, forget, and rediscover; they choose what to protect, display, study, and discuss—and all of this ultimately shapes the historical narrative, often leaving a trail of breadcrumbs along the way.

“As historians, we tell our stories and build our analyses based on the evidence we have,” said Alison LaCroix, the Robert Newton Reid Professor of Law and a legal historian who was among the first to examine the rediscovered collection. “There’s always this question of what has been preserved, and why it’s been preserved. Sometimes things that are ‘lost’ don’t stay lost, and when we find them, we have new evidence. But what’s interesting, and important to remember, is how much of it is chance.” It was the point, she noted with a laugh, of the final number in the musical Hamilton, “Who Lives, Who Dies, Who Tells Your Story,” which centers on the twists of fate that ultimately shape one’s legacy.

“You think of history as being this thing that comes in nice, tidy boxes,” said William Baude, the Neubauer Family Assistant Professor of Law and a scholar of constitutional originalism who also has examined the collection. “But it doesn’t. There are things that we don’t know are out there—and things that we know are out there but don’t know we have.”

Before the Law School’s discovery, historians actually knew that Marshall had written to Washington on March 26, 1789; current-day researchers just didn’t know where the note was or what it said. Its entire public record was reflected in a short entry in the National Archives’ Founders Online database: “To George Washington from John Marshall, 26 March 1789 [Letter Not Found].” Other letters in the series had been catalogued as part of the Papers of George Washington at the University of Virginia and incorporated into Founders Online—including Washington’s April 5, 1789, reply to Marshall, which began, “Sir: I have duly received your letter of the 26 Ulto . . . ” (Note: Ulto is an abbreviation of the Latin ultimo mense, used in correspondence at that time to say “last month.”) Also included in the database: the March 17, 1789, letter from Washington that prompted Marshall’s March 26 reply.

“I think for me part of the excitement is that nobody knew what this March 26 letter said, and now we do,” said LaCroix, an expert in early American history. “But also, like most historians, I have a fascination with holding the real things. I was almost fearful in a way when Sheri brought it to my office and let me keep it for a day or two. I thought, Can I really have this? It’s unique, it’s the only one, it’s its own thing.”

The album, bound in blue goatskin with gold tooling, is filled with strokes of history, each with the potential to shade the narrative in some small way or even deepen our understanding of modern America. There are 60 drawings and 5 photographs of Supreme Court justices, various banking and legal documents, and 75 letters, including the one by Marshall and one in which future Chief Justice Salmon P. Chase speculates that Abraham Lincoln will win the upcoming 1860 election.

“In these manuscripts, we hear the voices of the country’s greatest jurists, recorded in their own hand, along with portraits that put faces to the authors,” said Bill Schwesig, the D’Angelo’s Anglo-American and Historical Collections Librarian. “The great effort and expense that Mr. Silver put into building the collection resulted in a beautiful and engaging artifact.”

The written documents, which appear to be expertly affixed to preservation-quality pages, are arranged not by the order in which they were produced, but by the order in which the writer or signer served on the Supreme Court—starting with a 1783 letter written by the first chief justice, John Jay, and ending with a 1917 letter by Oliver Wendell Holmes. In between, the book holds a 1797 bank draft signed by the Supreme Court’s third chief justice, Oliver Ellsworth; an 1844 letter from Justice Peter Vivian Daniel to President John Tyler; and an 1823 note from Supreme Court Justice William Johnson to David Hosack, the physician who nearly two decades earlier had attended to Alexander Hamilton after his fatal duel with Aaron Burr. One of the oldest documents is a 1762 writ from King George III summoning a man named William Keating to court in Charleston, South Carolina; it was signed by the state’s provost marshal, John Rutledge, who more than 30 years later would serve—briefly—as the US Supreme Court’s second chief justice.

“When we first started looking for the collection this summer, we knew it was important,” Lewis said. “But, until we saw it, we didn’t have any sense of the breadth of it. This collection is unusual, and it is something nobody else has. And the fact that it was given to us by an alum is significant.”

Louis Silver, who had been an engineer before attending the Law School, was known as lively, astute, and discriminating. His personal collection of rare books—some 800 of which were purchased by the Newberry Library for a record $2.75 million after his death in 1963—was considered among the most impressive in the world. Even before the rediscovery, D’Angelo librarians knew of Silver: the Rare Book Room was named for him decades ago, when it first occupied a space on the Law School’s second floor. Silver had been generous to the University of Chicago, and although nobody knows why he donated the Supreme Court collection—or where it and its individual pieces had been in earlier years—librarians have speculated that he may have acquired, or even assembled, it expressly because he wanted the Law School to have it. At any rate, when the D’Angelo’s rare books collection moved in 2008 to the two glass-enclosed rooms on the sixth floor, Silver’s name went with it.

Quietly, so did the US Supreme Court Portraits and Letters collection, which ended up on a shelf in the western chamber, just feet from the plaque.

And there it slept until Lewis launched a research project this summer as a first step in rediscovering the rare books collection, which she and her team hope to strengthen and expand. That research turned up the 1958 Record articles, which referenced a “rare and important” collection that nobody in the 2016 law library had ever seen. One story contained the reprinted text of the Marshall letter, and the other included the text of the Chase letter.

“We didn’t even know it was assembled as a book—I first thought that the portraits and letters must have been displayed at some point in the Law School,” Lewis said. But she couldn’t find anything. She called retired D’Angelo Director Judith M. Wright; she, too, was stumped.

Finally, a member of the library’s staff found a promising entry in the library catalog. It was simple but accurate: “United States Supreme Court; portraits and autographs [collected by Louis H. Silver].” The call number led them to a shelf in the western chamber of the sixth-floor Rare Book Room.

And just like that, John Marshall’s words were back.

* * *

George Washington, Esquire
Mount Vernon

Richmond March 26th 89


I had the honor to receive a letter from you enclosing a protested bill of exchange drawn by the executors of William Armstead esquire. I shall observe your orders, sir, with respect to the collection of the money. I shall only institute a suit when I find other measures fail. I presume Mr. Armstead’s executors had notice of the protest. If they had, you will please to furnish me with some proof of the fact or inform me how I shall obtain it. Should a suit be necessary this fact will be very material.

Your caveat against Cresap’s heirs is no longer depending. It was dismissed last spring under the law which directs a dismission if the summons be not served.

I wrote to you on this subject before that session of the court and supposed it to be your wish that it should no longer be continued.

I remain Sir
        With perfect respect and attachment
          Your obedt servt

                     (signed) John Marshall

“Just looking at this, we can assume that this is Washington’s copy,” LaCroix said one afternoon in December, as she and Lewis were looking through the collection with a visitor. “You can see that it has been folded and postmarked—and it’s stamped, ‘FREE,’ so Marshall must have had franking privileges because he was a government official.” (Franking privilege, which dates to 1775, allows public officials to send mail without a postage stamp. Marshall was the Richmond city recorder—and therefore a magistrate—as of 1785, and that may well have been the office that gave him free postage in 1789.)

Someone would have copied the letter for Marshall’s files, LaCroix said, which means that at some point there was a second version that hadn’t traveled the 95 or so miles between Richmond and Mount Vernon. “But this one,” she said, “is addressed to ‘George Washington, Esquire, Mount Vernon.’” She paused. “Because, really, what else would you have needed to write? This must have been his.”

To a historian’s eye, the letter is filled with little insights, reminders, and curiosities: from the role of the founders in westward expansion to the quirks of letter writing; Marshall, for instance, used 11 words to sign off, but abbreviated the last two: obedient servant.

It was a little detail, but one that had a humanizing effect. It was hard not to wonder what Marshall had been thinking and feeling as he wrote the letter, or to consider the swirl of activity that must have surrounded Washington as he read it. There was something fascinating, LaCroix mused, about touching what they’d touched, and seeing the curves of their handwriting, and reading the words they’d chosen.

“It’s a little window into the founding,” LaCroix said. “It’s a slice of life. Marshall and Washington are writing to each other as lawyer and client, and that’s a relationship that had been going on for a long time, too.”

It was a time of transition for the young nation: the US Congress had met for the first time on March 4, and they were on the verge of certifying Washington’s victory in the first presidential election. “He was reluctant to become president,” LaCroix said. “He’d been away from Mount Vernon for so long, and he wanted to be back there and be the gentleman soldier in retirement.” But Washington felt a sense of duty, and on April 16, he’d begin a weeklong procession to New York City, the nation’s capital, for his swearing-in on April 30.

“He was getting ready to process to be the chief magistrate of this unknown experiment,” LaCroix said. “It’s pretty cool to think about.”         

Marshall was a force in his own right. He’d been a leading champion of the Constitution as a delegate to Virginia’s ratifying convention, and he’d fought especially hard for Article III, which provides for the federal judiciary. (Years later, in 1803, the first major case before Marshall’s Supreme Court would be Marbury v. Madison, which established judicial review.) But now, he was practicing law in Richmond—and trying to help Washington settle a dispute over hundreds of acres of land in the Ohio River Valley, property Washington had claimed in 1770 and had most likely earned for his service in the area during the French and Indian War.

It was a typical frontier dispute: another man built houses on Washington’s land in 1773, and now, years later, Washington was still sorting things out with the man’s heirs. (According to research that accompanies the Founders Online entry, it appears that the dispute wasn’t fully settled until 1834, when a court upheld the title in favor of a man who had purchased the land from Washington in 1798.)

What’s intriguing to LaCroix about the timeline, though, is that it began in British America and was eventually settled in the United States—an important reminder about the continuity of law.

“You look at this and you remember: it wasn’t that Americans invented law on March 4, 1789,” LaCroix said. “They already had British common law, and they had disputes that had been going on under the British Empire.”

It is impossible to know, of course, whether Louis Silver shared this fascination or even envisioned contemporary and future scholars probing these sorts of details when he donated the album sometime during or just before 1958. His intentions are one of the collection’s enduring mysteries.

“He was this extremely well-known collector of his time, but law wasn’t his major area of focus,” Lewis said. “And yet, he did collect this. He intentionally gave it to the Law School, even though much of the rest of his collection went elsewhere. To me, it suggests that he thought it was important that the Law School have this.”

Silver made the gift while he was still living—and he made it at a time when Americans’ interest in the Supreme Court was particularly high: Earl Warren was the chief justice and, just a few years earlier, the Court had ruled in the landmark Brown v. Board of Education. (Incidentally, Silver’s album arrived just a year or two before the Law School moved from Stuart Hall to the current building south of Midway. It is possible that the flurry of activity accompanying the move contributed to the album’s recession from collective memory, though Lewis notes that the library’s comparatively small staff—directed by a member of the faculty in those days—and its predigital cataloguing system probably played roles as well.) Either way, both the timing and topic were curious. Silver’s interests were broad: in 1958 and 1959, he’d donated science and technology books to the University of Chicago, and the collection acquired by the Newberry Library included valuable works in English and Continental literature and history. But there isn’t much indication that law was a top priority beyond the Supreme Court collection.

“Collectors collect things for different reasons, and—I don’t know—but you can imagine Mr. Silver thinking, I’m a lawyer and I’m really interested in Supreme Court justices, so let’s get all the documents we can pertaining to them.” LaCroix said. “But that could take so many different forms. He could have just been after the autographs. One of the letters, Roger Taney’s, is responding to someone who wrote [in September 1860] asking for his autograph. And Taney just sent it back with a note.”

LaCroix shook her head: “Of all the ones you’d want.” (Three years before sending the autograph, Taney had delivered the majority opinion in the landmark Dred Scott case, which held that black people, whether free or slave, could not claim US citizenship.)

But the Taney letter underscored another important point: motive aside, someone had collected these letters, portraits, and documents; and had taken care to preserve them regardless of writer or content; and had assembled them into one book, ensuring that, to some extent, they would be studied and considered together.

“This is the happenstance, and good fortune, of someone choosing to collect and preserve, and choosing to do it in a certain way,” LaCroix said.

This album, for instance, connected each writer to the Court, but also, at least in some cases, offered insight into other parts of their lives. LaCroix turned the pages until she found the 1762 summons that had been signed by John Rutledge.

“See here, in 1762, this is Rutledge as the provost marshal of South Carolina—it’s a future Supreme Court justice as a judicial official in the British Empire, carrying out writs signed by George III,” LaCroix said. “This, too, is a continuity we often don’t think about.”

Similarly, the album’s portraits captured some of the men as younger, or otherwise different, than the images we most often see. In the Marshall letter, Washington was a man eager to keep the land he’d claimed on the western frontier and Marshall was a practicing lawyer whose time on the Supreme Court was still a dozen years away.

“Sometimes the value in letters like these is that they tell us something we didn’t already know . . . but other times the value is that they make [the writers] real,” Baude said. “The artifacts bring them to life, and they’re more than abstractions in the computer. Seeing an original letter, you remember, too, that the writer actually had to sit down and write, and that the letter had to travel—and you remember how little they knew about what was going on [outside their geographic area]. You get a better emotional sense for how big the world is.”

What’s more, reading about pivotal events through the wizened eyes of hindsight, he pointed out, can offer up powerful reminders and even a lesson or two.

* * *

In 1860, Salmon P. Chase, the Ohio governor and a candidate for US Senate, wrote to a man named E. A. Stansbury about the upcoming presidential election. It had been a turbulent election cycle marked by deep divisions over slavery, a geographically fractured Democratic Party, and a contentious four-way race involving Abraham Lincoln, John C. Breckinridge (a cousin, incidentally, of the Law School’s first female graduate, Sophonisba Breckinridge, 1904), Stephen A. Douglas, and John Bell.

Chase, who would later become the Supreme Court’s sixth chief justice and whose face would appear on the now-defunct $10,000 bill, was an abolitionist lawyer who had represented runaway slaves. He seemed to favor Lincoln and speculated that the Illinois Republican would win—and that his election might bring an end to slavery in America.

But Chase couldn’t help but wonder: what comes next?

My dear friend,

Nothing in the future is even tolerably clear to me except the probability, approaching certainty, that Mr. Lincoln will be our next President, and that by his election the power of slavery in our country will be broken. What lies beyond I see not. I hope the Administration will be Republican, and that faithful Republicans will be called into the Cabinet, and that all will be well. To that end I shall honestly, sincerely and earnestly labor. I do not know Mr. Lincoln personally. All I hear of him inspires confidence in his ability, honesty and magnanimity. These qualities justify the best hopes, but we must remember that he has not been educated in our school, and may not adopt our ideas, therefore, either in selection of men or in the shaping of measures.

Faithfully your friend,

S.P. Chase      

Any apprehension Chase might have felt was well placed, of course. The coming years would bring the secession of 11 southern states, a devastating civil war that would leave hundreds of thousands of dead, and Lincoln’s assassination. But the future would also bring the end of slavery, a fitful reconstruction, and an eventual return to national unity.

“We think of ourselves as confronting all these new circumstances, and we think, ‘Who knows what’s going to happen?’ But they felt that way in 1860, too,” Baude said. “We see that, in some ways, our problems aren’t as new as we think they are. In a way, we’ve been here before.”

All of this—the perspective, the opportunities to connect with founders and shapers of law, the chance to see the evolution of America and its legal system through the words of those who were there—have underscored the very mission that led Lewis and her team to the US Supreme Court Portraits and Letters collection in the first place.

“We were focused on advancing the rare books collection when we found this and, now, it’s a nice reminder of the value that this material brings to the Law School,” Lewis said. “We are looking for ways to continue making rare books more accessible to faculty, and to strengthen and build our offerings.”

Part of that means continuing to explore the existing rare books collection, which includes more than 2,800 items.

“After this,” Lewis said, “I can’t help but wonder what else we’ll find.”

Faculty:  Sheri Lewis Faculty:  Alison L. LaCroix Faculty:  William Baude

 “It took me awhile to really absorb how much is in here. Every piece of parchment in this book tells a story.”

—Sheri Lewis, D'Angelo Law Library Director


Geoffrey R. Stone: "Remembering Roe"

Fri, 01/27/2017 - 10:53
Remembering Roe Geoffrey R. Stone Huffington Post January 27, 2017

Many Americans today think of Roe v. Wade as a radical, left-wing decision. That was not the view at the time.

This week marks the forty-fourth anniversary of the Supreme Court’s decision in Roe v. Wade. I’m proud to say that I was there at the time. By “there,” I mean that I was a law clerk to Justice William J. Brennan, Jr. when Roe was decided. Because Brennan played a critical role in helping to craft the Court’s opinion, it was a truly fascinating experience.

Many Americans today think of Roe v. Wade as a radical, left-wing decision. That was not the view at the time. By 1973, a substantial majority of Americans supported the right of a woman to terminate an unwanted pregnancy. Gallup polls at the time showed that “two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.”

Moreover, three of the four justices appointed to the Supreme Court by President Richard Nixon, who had dedicating himself to appointing “conservative” justices, joined the decision. Indeed, without their support, Roe would have come out the other way. That Warren Burger, Harry Blackmun and Lewis Powell joined Justices Douglas, Brennan, Stewart and Marshall in Roe speaks volumes about the mainstream nature of the decision.

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Faculty:  Geoffrey R. Stone

Hemel, Masur & Posner: How Antonin Scalia’s Ghost Could Block Donald Trump’s Wall

Wed, 01/25/2017 - 16:56
How Antonin Scalia’s Ghost Could Block Donald Trump’s Wall Daniel Hemel, Jonathan Masur and Eric Posner The New York Times January 25, 2017

President Trump may stumble on an unexpected obstacle as he tries to build a wall along the Mexican border: Antonin Scalia.

President Trump may stumble on an unexpected obstacle as he tries to build a wall along the Mexican border: Antonin Scalia.

This may seem surprising, considering that Mr. Trump has called him a “great” justice. But in one of his last opinions, Justice Scalia supplied a powerful weapon to resist Mr. Trump’s plans for a border wall.

Justice Scalia’s June 2015 opinion in Michigan v. Environmental Protection Agency may not seem helpful at first sight. It blocked an E.P.A. rule that would have limited mercury emissions from power plants. The Clean Air Act instructs the E.P.A. to issue “appropriate and necessary” regulations, and Justice Scalia said that language required the E.P.A. to consider the costs of its proposed rules, which it did not properly do. “No regulation is ‘appropriate’ if it does significantly more harm than good,” Justice Scalia wrote. And even though the final vote in the case was 5­4, all nine members of the court agreed that the E.P.A. could not ignore the costs of its actions when deciding whether or how stringently to regulate.

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Faculty:  Daniel Hemel Faculty:  Jonathan S. Masur Faculty:  Eric A. Posner

Anthony Casey: Bankruptcy on the Side

Mon, 01/23/2017 - 12:24
Bankruptcy on the Side Kenneth Ayottem, Anthony Casey, and David Skeel Oxford Business Law Blog January 20, 2017

Judges in large corporate bankruptcies are increasingly being asked to resolve disputes regarding side agreements between creditors or other stakeholders in the debtor. A common example is an intercreditor agreement that allocates the rights to control the bankruptcy process amongst a subset of creditors. The enforcement of these agreements can change the outcomes in large corporate reorganization cases—not only the division of value, but also what happens to the company itself.

An important feature of these agreements is that they often include a promise by one party to remain silent – to waive some procedural right – at potentially crucial points in the reorganization process. For example, the agreements might require a lender to waive its objections to a proposed plan of reorganization or to abstain from supporting or presenting certain proposals for debtor-in-possession financing.

Our new paperBankruptcy on the Side, examines the question of how judges should interpret and enforce side agreements. Using simplified examples, we demonstrate the potential costs and benefits of side agreements. On the benefit side, we show that side agreements can provide effective work-arounds for some of the inefficient mandatory terms in the Bankruptcy Code, as well as solving problems caused by the inherent incompleteness of contracts. To give a concrete example, a second lien lender might agree to be silent in order to commit to not raising objections that – although allowed under the Bankruptcy Code – would stall a value-maximizing sale process.

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Faculty:  Anthony J. Casey

Tom Ginsburg and Aziz Huq on the U.S. Constitution and the Risk of Democratic Backsliding

Mon, 01/23/2017 - 12:16
The U.S. Constitution and the Risk of Democratic Backsliding Tom Ginsburg and Aziz Huq Just Security January 23, 2017

Is there a real possibility of the erosion of democratic institutions toward authoritarianism in the United States?

Is there a real possibility of the erosion of democratic institutions toward authoritarianism in the United States? What can the experience of other countries tell us about how such democratic backsliding might happen, and is the U.S. Constitution well equipped to prevent such authoritarian methods from working? As comparative constitutional scholars with an ongoing interest in how constitutional systems thrive and why they fail, we have a professional interest in the relationship between democratic backsliding and the U.S. Constitution. As citizens, we have abiding commitments to our democracy that makes the question important to ask and effectively answer.

At Ryan Goodman’s kind invitation, we present in this blog post some preliminary findings from a working paper entitled “How to Lose a Constitutional Democracy.” We focus here on the relationship between what we call in the paper “constitutional retrogression” and specific elements of the U.S. constitution. Using the constitutional experience of other countries as a guide to understanding democratic backsliding will, in our view, engender a better appreciation of the standing risk of such decay in the U.S. context.

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Faculty:  Tom Ginsburg Faculty:  Aziz Huq

Eric Posner on Success Rate of Obama Administration before Supreme Court

Mon, 01/23/2017 - 09:45
Why Obama Struggled at Court, and Trump May Strain to Do Better Adam Liptak The New York Times January 23, 2017

“Barack Obama’s win rate before the Supreme Court is extremely low, lower than any president of this century.”

President Barack Obama won a series of major cases before the Supreme Court on health care, gay rights, affirmative action and abortion, helping to preserve significant parts of his legacy.

But, over hundreds of cases in eight years, his reception at the court, on the whole, was chilly.

“Barack Obama’s win rate before the Supreme Court is extremely low, lower than any president of this century,” said Eric Posner, a law professor at the University of Chicago and an author of a new study on the subject.

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Faculty:  Eric A. Posner

Eric Posner on What the Next Few Years Under Trump May Look Like

Fri, 01/20/2017 - 12:23
What Will a Trump Presidency Look Like? Tom Jacobs Pacific Standard January 19, 2017

Posner does have a good sense of what it takes for a president to enact his preferred policies, and insists the brand of populist bombast that Trump excels in will not do the trick.

Eric Posner is wary about making predictions about Donald Trump’s presidency. Understandably enough. The University of Chicago law professor admits to underestimating Trump as a candidate, and he’s not about to make the same mistake as Trump’s administration gets underway.

But Posner does have a good sense of what it takes for a president to enact his preferred policies, and insists the brand of populist bombast that Trump excels in will not do the trick. He argues the new president will need to exercise “bureaucratic leadership,” which means “being able to motivate a large group of people, and getting them to do what you want them to do.”

“Whether he is smart and disciplined enough to do that, I don’t know,” he said in an interview a few days before the inauguration.

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Faculty:  Eric A. Posner

Omri Ben-Shahar on Why the Government Should Register Disparaging Trademarks

Thu, 01/19/2017 - 16:41
Let's End Trademark Piety. Racial Slurs Should Be Trademarked -- It Will Only Reduce Their Use Omri Ben-Shahar Forbes January 17, 2017

In the same way that the government must grant copyright protection to disparaging works of authorship, or postal service to disparaging letters, it must register disparaging trademarks.

Companies like to give their brands memorable names with appealing innuendo. Baby products’ names intimate softness, perfumes are branded to invoke sexuality, and cereals suggest health. As long as the marks are distinctive, American trademark law allows the creator of any brand to prevent others from using its name.

But what if the name is vulgar or pejorative? Can you register—some have tried—REALLY GOOD SHIT as a trademark for motor oil, or WIFE BEATER for T-shirts? And what if the name is culturally offensive? Can you use KHORAN for wine, AMISH for cigars, or REDSKINS for a sports team? The answer is yes and no.

Yes—these names are distinctive and the owners of the brands can sue anyone who uses them without permission, even if they are not registered. But No—the owners cannot register these “scandalous” marks with the Federal government. Registration gives trademark owners some additional protection (for example, to insist that the Customs Service block importation of fake goods). Unable to register vulgar, pejorative, or offensive trademarks, these brands are at a disadvantage.

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Faculty:  Omri Ben-Shahar