News

Alex Kiles '14 Receives Butler Rubin Scholarship

mferzige — Tue, 07 Feb 2012 23:57:01 +0000

Alex Kiles '14 Receives Butler Rubin Scholarship

Business Wire

February 7, 2012

The Chicago-based law firm Butler Rubin Saltarelli & Boyd LLP has awarded its annual diversity scholarship to University of Chicago Law School student K. Alex Kiles. Kiles becomes the seventh recipient of Butler Rubin's annual scholarship focused on fostering diversity in the legal profession.

Kiles is currently a first-year law student and expects to receive his law degree in 2014. In addition to a $10,000 renewable scholarship for tuition and other expenses associated with law school, Kiles will work as a 2012 summer associate at Butler Rubin.

"Each year we recognize an exceptional diverse law student and Alex impressed us with his skills, work ethic and commitment to give back to the community," said Karen M. Borg, a partner and co-chair of the firm's Diversity Committee.

A graduate of Washington University in St. Louis, Kiles was a double major in political science and Spanish and served as Senior Class President and as coordinator of a mentoring network, Student Contact Program. During school summers, Kiles worked as an SEO Corporate Law Intern at WilmerHale LLP in Washington, D.C. and as a staff member of Kids Who Care International Summer Stock Company in Fort Worth, Texas.

Epstein: Title IX or Bust

mferzige — Tue, 07 Feb 2012 23:53:25 +0000

Title IX or Bust

Richard Epstein

Defining Ideas

February 7, 2012

Think back to the year 1943. For this country, embroiled as it was in World War II, the question of the day was whether, and if so how, to ensure that all students express their loyalty to the United States. To answer that challenge, the state of West Virginia’s Department of Education required all students in public schools to salute the flag of the United States of America. Covered by this order were the children of Jehovah’s Witnesses, for whom the flag salute was a form of religious idolatry.

Enter the First Amendment’s guarantee of the freedom of speech, which when applied to the case of West Virginia here—and, by extension, all the other states—provoked this response from Justice Robert Jackson in West Virginia Board of Education v. Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The key assumption behind the justice’s opinion was that West Virginia did not get any additional power over its young students simply because they were attending public schools. It therefore looked at the case as if the regulation had been imposed on all individuals regardless of what they did, and found that it came up short. It did so because parents taking children out of school has always been regarded as a false option, under what is now called the doctrine of unconstitutional conditions.

The proposition is this: The government cannot use its power to operate publicly funded facilities to force the beliefs and convictions of the majority upon a minority of the population. The Jehovah’s Witnesses were taxpayers after all. But even if the Jehovah’s Witnesses were relieved of their tax obligations, there is good reason to hold fast to the position that protects the rights of religious minorities. Quite simply, it is easy enough to accommodate these children by allowing them to respectfully pass on the flag salute.

Faculty:

Richard A. Epstein

Geof Stone Argues Against Claim That "Money is Not Speech"

arester — Mon, 06 Feb 2012 16:35:13 +0000

Is Money Speech?

Geoffrey R. Stone

The Huffington Post

February 5, 2012

There are many reasons to be concerned about both the impact of money on our political process and the Supreme Court's decision in Citizens United. But critics of Citizens United, including those calling for a constitutional amendment to overrule it, have too often made the mistake of grounding their argument on the claim that "money is not speech."

Organizations like Move to Amend, ballot measures in Boulder, Colorado and Madison Wisconsin, city council resolutions in Los Angeles and Portland, Oregon, and thousands of individuals protesting at the Supreme Court on the second anniversary of Citizens United have all embraced this slogan. Although the critics of Citizens United might well be right to condemn it and to call for a constitutional amendment to overrule it, they are misguided in their reliance on the refrain that "money is not speech."

Of course, money is not "speech." Money is money, a car is a car, and a ribbon is a ribbon. These are objects, not speech. But all of these objects, and many more besides, can be used to facilitate free speech. Consider a car. The government can lawfully impose all sorts of restrictions on how, when and where we can drive a car, and no one would argue that those restrictions implicate the First Amendment.

But suppose a city enacts a law prohibiting any person to drive a car in order to get to a political demonstration. Such a law would clearly implicate the First Amendment, not because a car is speech, but because the law restricts the use of a car for speech purposes.

Faculty:

Geoffrey R. Stone

Corporate Lab Publishes "Complying With the Foreign Corrupt Practices Act: A Practical Primer"

arester — Thu, 02 Feb 2012 22:14:22 +0000

Complying With The Foreign Corrupt Practices Act: A Practical Primer

Mike Koehler

FCPA Professor

February 2, 2012

This “new era” of FCPA enforcement has resulted in many things. From my perspective, one of the best things it has resulted in is increased attention of the FCPA and FCPA compliance among academics and students.

The ABA Criminal Justice Section’s Global Anti-Corruption Task Force (here) recently published “Complying With the Foreign Corrupt Practices Act: A Practical Primer” (here). The report is authored by University of Chicago Law Students Salen Churi, David Finkelstein, Joe Mueller; University of Chicago Law School faculty Dean David Zarfes, Michael Bloom, and Sean Kramer; and Corporate Lab participants John Frank and Michel Gahard (both of Microsoft). The University of Chicago Corporate Lab (see here) objective is “to provide students with ‘real-world’ experience and context, to prepare them to become well-rounded legal practitioners with sound legal and business judgment, and to provide them with opportunities to work on cutting-edge projects with multinational companies.”

Among other things, the purpose of ”Complying With the Foreign Corrupt Practices Act: A Practical Primer” is to provide “a framework for developing effective [FCPA] compliance programs.” As the report notes, “[t]he available guidance from the government on how to comply with the FCPA’s requirements and prohibitions is extremely limited” and “the guidance that the government has made available is vague, disjointed, and sparse.”

The report contains a comprehensive overview of the “purposes of a compliance program,” the “facets of a compliance program,” “sources of guidance in crafting a compliance program” and various “metrics for an effective compliance program.” However, contrary to the apparent suggestion in the report, the comprehensive FCPA best practices policies and procedures identified do not “protect companies from exposure to [FCPA] liability.”

Faculty:

David Zarfes

Faculty:

Michael L. Bloom

Faculty:

Sean Z. Kramer

Faculty:

John Frank

Faculty:

Michel Gahard

Epstein on "The Libertarian Gun Fallacy"

arester — Tue, 31 Jan 2012 15:55:17 +0000

The Libertarian Gun Fallacy

Richard A. Epstein

Defining Ideas

January 31, 2012

The study of constitutional law is divided neatly into two categories. The first category concerns the protection of an overlapping set of individual liberties, dealing with property, contract, religion, and speech. The second category addresses the broad array of structural protections whose implementation is thought to indirectly protect those liberties.

One key structural element of the American Constitution involves the design of a two-tier federalist system that distributes government powers between the national government and the states. How should a libertarian, whose natural instincts tend toward lower levels of government activity, think about the way in which federal systems can either strengthen or undermine the constitutional protection of individual liberties?

In dealing with this issue, it has often been asserted that libertarians are all too fond of state’s rights. Consider this critical outburst from Andrew Sullivan’s blog:

A real libertarian should be just as concerned about a State government's infringement of individual liberty as the Federal government's. There should be no distinction. Period. Instead, for some strange reason, American libertarians always rail against Federal power and champion the cause of unfettered State power. Why do you think American libertarians historically champion the cause of unfettered State power in the name of "individual liberty"?

The “always” is a bit much, for this diatribe contains serious historical inaccuracies that were rightly exposed by Damon Root writing for Reason Magazine. As he notes, libertarians rose as one to condemn the Supreme Court’s decision in Kelo v. City of New London, which eviscerated the “public use” limitation on the state power of eminent domain by allowing a taking.

Faculty:

Richard A. Epstein

Supreme Court Review Celebrates 50th Anniversary

arester — Mon, 30 Jan 2012 16:06:49 +0000

Influential Law School journal critiques Court

Sarah Galer

University of Chicago News Office

January 30, 2012

In 1959, University of Chicago law professor Philip Kurland approached his dean about starting a new faculty-run legal journal, the first of its kind, meant to be a “sustained, disinterested, and competent criticism” of the United States Supreme Court.

That dean, Edward Levi, AB’32, JD’35, a future UChicago president and Attorney General of the United States, encouraged him to pursue the idea but refused any funding, telling Kurland “if what you produce is good enough, it will support itself.”

The following year, The Supreme Court Review became the first regularly published, faculty-edited law journal in the United States, objectively analyzing a wide range of topics on the Court’s history, impact, and behavior. Now after 50 years as the “self-appointed critic” of the Supreme Court that Kurland strived for, the Review continues to be a leader in its field.

“We are trying to publish very high-quality heterodoxy, in terms of criticism of the court,” says Dennis Hutchinson, an editor of the Review since 1986, Senior Lecturer in Law and the William Rainey Harper Professor in the College. “We are not pushing a party line. We turn down what we view to be advocacy scholarship that is just a disguised legal brief for an outcome.”

Kurland, who was the sole editor of the University of Chicago Press-printed journal for 25 years and continued until 1988, sought to engage legal scholars, political scientists, and historians in conversations about Court decisions.

Kurland’s aspirations for the Review embodied the hallmark of the Law School’s academic culture, in which all ideas matter and are worth debate.

“The work of the Supreme Court is one of the few areas in which political scientists and lawyers are dealing with a common body of materials,” wrote Kurland in the preface of the inaugural 1960 issue. “It must be acknowledged that, despite this community of interest, there has been unfortunately little interchange of ideas.”

Journal held in the highest regard

According to Kenneth Karst, an emeritus constitutional law scholar at UCLA who contributed to the first edition as a young associate professor, Kurland’s work on the Review embodied integrity.

“His views and mine about the Court and the Constitution differed considerably, but anyone whose work appeared in these pages would profit by his editing, which always sought to aid the author in expressing his or her position,” wrote Karst in a 50th-edition article in memory its late founding editor.

The Review has only had five editors in its 50-year history: Kurland; Gerhard Casper, who served from 1977-90 and is a former UChicago provost, law dean, professor and now president emeritus at Stanford University; Hutchinson; David Strauss, the Gerald Ratner Distinguished Service Professor of Law, who joined in 1990; and Geoffrey Stone, the Edward H. Levi Distinguished Service Professor, editor since 1992.

“Although it is not common in the rest of the academic world, the vast majority of law journals are student-edited,” says Stone, who currently edits the Review with Hutchinson and Strauss, which as of this issue, is available simultaneously online through JSTOR and in hardback. “Kurland felt there was a need for really highly professionalized commentary about the work of the Court, instead of relying on student-edited law reviews that more randomly decided what will or will not get published.”

By 2006, it was clear that the Review was a first in a growing trend of faculty-edited law reviews; by LexisNexis Directory of Law Reviews’ count, there were now 184 non-student edited law journals, compared to 505 student-edited ones.

Richard Posner, Senior Lecturer at the Law School and judge of the U.S. Court of Appeals for the Seventh Circuit, remarked on this change more than two decades ago, lauding that faculty expertise can benefit specialty journals.

“The focus of scholarly publication at the academic frontier is gradually shifting from student-edited to faculty-edited, faculty-refereed journals,” wrote Posner in the 1986-87 Harvard Law Review, a student law review. “More scholars are coming to realize that law reviews are not well-equipped to select, and through editing to improve, articles outside of the core of legal doctrinal analysis, which, important though it is, no longer exhausts the domain of legal scholarship.”

‘Bridging the gap’ between scholars, lawyers

The Review’s influence has been notable. In 1999, an empirical evaluation of specialized law reviews in the Florida State University Law Review, the Review was ranked first of the 285 journals reviewed. In 2010, Washington and Lee University School of Law’s Law Journals Ranking placed the Review first for the average number of annual citations per article among the 337 peer-edited/refereed law journals included on its list.

“One of the recurring issues in legal scholarship is that the work that interests law school faculty members often is of no interest even to the most sophisticated practicing lawyers,” says Strauss. “The Review has always tried, mostly successfully I think, to bridge that gap—to publish outstanding scholarship that has something to say to people who are in the trenches.”

Contributors to the journal have ranged from newly minted professors to leading legal scholars — which has become somewhat of a tradition for the journal according to Stone. Both he and Hutchinson published their first major articles as young law scholars in the Review. Meanwhile, it has also published three future Supreme Court justices: Antonin Scalia, Ruth Bader Ginsburg, and Elena Kagan.

One of the most influential articles published in the tome was a 1964 piece by Harry Kalven Jr., JD’38, legal scholar and author of the influential Kalven Report (PDF) on the University’s role in political and social action. Kalven foretold the profound influence that the landmark case New York Times Co. v. Sullivan would have on First Amendment jurisprudence.

Other prominent articles have ranged from pieces on Justice Felix Frankfurter and Franklin D. Roosevelt’s “Court-Packing Plan,” to federalism and reconstruction, and Florida’s presidential election deadlock of 2000.

Karst says he published in the Review multiple times throughout its 50 years, in part because its large following of constitutional law scholars helped his work reach his peers.

“Placing an article in the Review is one way of making sure that it is seen—not necessarily read, of course—by most of the people who focus on U.S. constitutional law,” says Karst.

Faculty:

Dennis J. Hutchinson

Faculty:

David A. Strauss

Faculty:

Geoffrey R. Stone

Faculty:

Richard A. Posner

Strahilevitz on Personal Privacy Challenges and US v Jones

mferzige — Fri, 27 Jan 2012 15:08:06 +0000

Can the Police Keep Up with Jones?

Lior J. Strahilevitz

Chicago Tribune

January 27, 2012

The U.S. Supreme Court has just laid down a major defense of personal privacy — and raised major questions about law enforcement's ability to use new technologies to fight crime. In a landmark decision this week, the court broadly interpreted the people's Fourth Amendment rights "to be secure in their persons, houses, papers, and effects, against unreasonable searches."

In the case, U.S. v. Jones, the justices considered whether the police installation of a tiny Global Positioning System device on the underside of Antoine Jones' car for the purpose of monitoring his movements constituted a "search." If so, the police would usually need to obtain a warrant from a judge before conducting surveillance.

In Jones, a majority of the court found that the installation of the GPS device was unconstitutional because the police interfered with Jones' property without his consent. A different majority of five justices simultaneously indicated that the police use of the GPS device to monitor Jones' movements during a four-week period was unconstitutional because it interfered with contemporary Americans' "reasonable expectations of privacy."

The decision means that it now will be harder for the government to track our whereabouts 24/7. This will please many people. Yet the Jones decision will likely increase crime by slowing down police investigations, disturbing many others. And those important interests and GPS itself are not the only things at stake.

Several current police practices are suddenly constitutionally suspect. For example, in Washington, D.C., and its neighboring suburbs, more than 250 cameras continuously monitor the license plates of every vehicle that passes and store that information in a massive database. The data are retained for three years. When a stolen car drives by, law enforcement is notified. After a bank robbery occurs, the police can pull the information from nearby cameras to identify possible getaway cars. Now the D.C. cops may need a warrant every time they want to access the database. And that's only the beginning.

Faculty:

Lior Strahilevitz

Epstein on Jeffrey Sachs' Critique of Libertarianism

arester — Tue, 24 Jan 2012 15:25:45 +0000

No ‘Sachs Appeal’

Richard A. Epstein

Defining Ideas

January 24, 2012

The surprising persistence of Ron Paul during the Republican presidential primary process has brought the libertarian theory that he champions into the spotlight. At one level, what Paul says about the tradition is surely correct. It does not take a bold imagination to think that the level of government intrusion in the lives and businesses of its citizens has moved to an unacceptable and unsustainable level. He is right to stress the corruption that large government brings to social life. In today’s environment, individuals divert their energy from producing wealth for themselves, which would otherwise create greater opportunities for others, to securing the transfer of wealth from others, which in the end diminishes all the possibilities for growth created by human ingenuity and invention.

In this essay, I do not want to defend the Paul candidacy. Candidates all take many positions, and I have little sympathy for what I regard as the dangerous isolationism of Paul’s foreign policy, for his relative silence on the vital issue of free trade, and for his quixotic effort to abolish the Federal Reserve (which stands in need of extensive reform) in favor of a return to a gold standard.

It is, however, important to note that the attractiveness of Paul’s central message has brought forth a number of attacks on the basic libertarian approach toward governance that urgently cry out for some answer. In this regard, my University of Chicago friend and colleague Todd Henderson sent me a brief post by Jeffrey Sachs entitled “Libertarian Illusions,” whose dismissive message is all too apparent from its title.

Faculty:

Richard A. Epstein

LL.M National Dinners Build Community

arester — Mon, 23 Jan 2012 20:17:54 +0000

Marijke Spooren, LL.M ‘12

Law School Office of Communications

January 23, 2012

This year’s LL.M class brings together students from over 20 different countries and many more nationalities. The diversity of the graduate class of 2012 is not only reflected in the variety of legal traditions but also in different national dishes. From locro (Argentina and Peru) to sushi (Japan), every country has its typical meal. Being an LL.M at the University of Chicago is thus not only about learning the American culture but inevitably also teaches you something about the food in the other 20 countries.

To stimulate the exchange of food and thought, the Law School encourages LL.M students, through a financial subsidy, to organize national dinner parties where they can serve the dishes their nations are most proud of. The idea is that a group of students from one country prepares a dinner—if possible with complementary national drinks—and subjects it to the critical taste buds of their fellow students.

During the fall term, the nine Japanese LL.M students took up the challenge to organize the first national dinner and passed with unanimous approval. Great food was served and interesting conversations were made. Now that the bar was set at a very high level most countries seemed afraid to trying to match the meticulous organization of the Japanese night.

After plucking up some courage and talking with experienced mothers about their recipes during the winter break, one French and three Belgian students decided to bring back life to the national dinner parties. The alliance between Belgium and France was obvious: the countries have strong historical ties which they continue to promote through extensive commercial relations. Only four days to compose the menu, purchase the ingredients, and cook a dinner for 70 fellow students—the decision-making clearly had to go faster than the current talks in the Euro-zone.

The food combination of the two nations proved an excellent choice and fortunately there were two talented cooks in the alliance to prepare the food with precision. The dinner started with two French dishes: onion pies from Nice and olive cakes from Paris. The main course was a combo platter of the Belgian “stoverij” (pork shoulder in a beer sauce) and grated potatoes from the Dauphiné area in France. Saving the best for last, the students had a choice of various desserts: pralines imported directly from Belgium, apple pie from Corrèze in France and Belgian chocolate mousse. Especially for the occasion a Belgian LL.M with Italian roots also made an Italian style tiramisu.

The evening was a great success. People came back for seconds and thirds until there was neither food nor cutlery left. Billiard games were played, conversation was made and Belgium and France were assured that they weren’t facing a downgrade. Lessons learned? Hopefully everybody now knows that Brussels is the capital of Belgium and not the other way around. Hopefully everybody now knows the colors of the Belgian flag thanks to the Belgian women’s clothes. Certainly everybody now knows that national dinner parties are a great way to learn more about other countries’ culture but foremost that these parties are a great way to grow friendships.

We are already looking forward to the Chinese New Year dinner party and the Switzerland national dinner party!

View the menu from the Belgian-French dinner.

NYTimes Explores a Judge Posner Opinion Regarding Dreadlocks in Prison

arester — Tue, 24 Jan 2012 15:30:39 +0000

A Forced Prison Haircut Brings Up Questions About Freedom of Religion

James Warren

The New York Times

January 21, 2012

Since members of the African Hebrew Israelites of Jerusalem venerate the Old Testament, they probably know that the Book of Judges includes a reckless Samson telling Delilah that if his hair were cut, his strength would disappear. Bad move.

It was probably stupid, too, for a prison guard to order the forcible shearing of the dreadlocks of an inmate, Omar Grayson, a member of the African Hebrew group. A federal appeals court has just ruled in favor of Mr. Grayson in a decision that includes an improbable visual reference to Bob Marley.

The court reversed a trial court that threw out Mr. Grayson’s lawsuit, which claimed his free exercise of religion was violated when his dreadlocks were shorn. According to the opinion, some, but not all, African Hebrew Israelites believe they should not cut their hair.

Illinois inmates can “have any length of hair” as long as it “does not create a security risk,” according to prison regulations. Harold Schuler, an officer at Big Muddy Correctional Center, just south of tiny Ina, in Jefferson County, thought Mr. Grayson’s dreadlocks posed such a risk, though he did not explain why.

When the inmate complained, the chaplain claimed that only Rastafarian inmates were entitled to wear dreadlocks on religious grounds. An internal prison appeal was denied, based on the chaplain’s theological analysis.

But a panel of Richard Posner, Ilana Rovner and David Hamilton of the United States Court of Appeals — in a case in which Mr. Grayson represented himself — said the decision made no sense, even if the judges appreciate how dreadlocks could conceal contraband. It explains why Judge Posner, who wrote the opinion, includes a photo of Marley to underscore how “dreadlocks can attain a formidable length and density.”

Faculty:

Richard A. Posner