• Martin Luther King, Jr. and the Law

    by  • January 16, 2015 • 0 Comments

    Martin Luther King, Jr. Lincoln Memorial

    Martin Luther King, Jr. at the Lincoln Memorial, August 28, 1963 | Wikimedia Commons

    Schmidt_Chris thumb By Christopher Schmidt


    Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

    King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

    Law as an Obstacle to Racial Justice

    Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

    Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

    King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

    A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”
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    Buccafusco Coauthors New Book on Happiness

    by  • January 12, 2015 • 0 Comments

    Happiness and the Law, a new book by Professor Christopher Buccafusco and colleagues John Bronsteen (Loyola University Chicago) and Jonathan Masur (University of Chicago), was published by the University of Chicago Press in December. Below, read an excerpt from Jack Silverstein’s Chicago Daily Law Bulletin profile on the authors and the project (“The pursuit of (studying) happiness”):

    You are a criminal defense attorney with a client weighing two options: Accept a plea deal and an automatic five years in prison or go to trial and risk receiving a sentence of 20 years. Your client decides to go to trial.

    Is the client wrong? According to three Illinois law professors and coauthors of a new book examining the impact of laws on happiness, the answer is no.

    “Our research shows that 20 years in prison is not nearly four times as bad as five years,” said Jonathan Masur, a professor at University of Chicago Law School.

    That is among the conclusions in the new book “Happiness and the Law,” written by Masur, John Bronsteen of Loyola University Chicago School of Law and Christopher J. Buccafusco of IIT Chicago-Kent College of Law.

    The book … is the result of six years of work between the three professors as they set out to create metrics for evaluating laws based on happiness.

    “If you think about why we have law, at all, the basic core reason is to make people’s lives better,” Bronsteen said. “If you want to think about how law affects people and how to make law better, you need to think about what it means to improve people’s lives.”

    To study happiness, the professors combed pre-existing research such as the General Social Survey, a survey founded in 1972 that tracks people’s happiness and quality of life over many years by asking them to respond to questions about themselves.

    “Our contribution in the book, then, is basically to take these findings and use them to challenge and update more traditional ways of thinking about legal problems—economically and philosophically,” Buccafusco said.

    The survey is an example of hedonic psychology, the attempt to quantify happiness.

    “It’s the notion that we can detect and discover what we would call ‘subjective well-being,’” he said.

    Read the full profile here.

    New Andrews Report Examines Webcams and Privacy

    by  • December 23, 2014 • 0 Comments

    [Reposted from IIT Chicago-Kent News]


    Webcams have transformed entertainment, medicine, home security, and many other fields. But they have also been used to spy on people in shocking ways. Hundreds of thousands of people have been the targets of surreptitious remote webcam activation, yet there has been no meaningful legislative response to the problem.

    digital-peepholes-report-cover

    The Digital Peepholes report is available for download at www.ckprivacy.org.

    In Digital Peepholes, a new report from IIT Chicago-Kent College of Law, Distinguished Professor Lori Andrews and attorneys Michael Holloway and Dan Massoglia document the risk and propose policy solutions.The two-year investigation undertaken by faculty, students, and legal fellows at IIT Chicago-Kent College of Law uncovered the following:

    • Everyone is vulnerable to being spied on through their webcams.
    • The FBI has asked that federal laws be changed so that law enforcement can use people’s webcams to gather evidence about what crimes people may be committing through or near their computers.
    • One company alone installed remote activation technology on 400,000 rental computers and photographed its customers having sex, gambling online, and searching the Internet.
    • Existing laws do not protect people sufficiently.

    Digital Peepholes offers policy recommendations to protect people’s rights on the web. The comprehensive policy paper is available without charge at www.ckprivacy.org and the authors are available for comment.

    IIT Chicago-Kent has been at the forefront of issues arising at the convergence of technology and the law since the creation of the mainframe. The CK Privacy program at IIT Chicago-Kent provides an opportunity for students, faculty members, policymakers, and the public to assess the ways in which technologies present new challenges to privacy and data protection, as well as to develop technical and legal ways to better ensure privacy and improve data protection.

    For more information, please contact:

    Chicago-Kent Research Paper Series No. 6.8

    by  • December 16, 2014 • 0 Comments

    The Chicago-Kent Research Paper Series (RPS) is an SSRN ejournal publication, distributed monthly, that highlights recently published articles, new abstracts, and works in progress by Chicago-Kent faculty.

    The latest edition (6.8) of the RPS was distributed this week. This edition includes the following articles:

    • Christopher Buccafusco, Well-Being and Public Policy (with J. Bronsteen and J. Masur), Oxford Handbook of Law & Economics (forthcoming).

    • Harold Krent, Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals (with S. Morris), working paper.

    • Martin Malin, Education Reform and Labor-Management Cooperation: What Role for the Law? 45 University of Toledo Law Review 527 (2014).

    Click here to see the abstract page for the Series and to subscribe to the ejournal.

    Atuahene on Mandela

    by  • December 5, 2014 • 0 Comments

    On the first anniversary of Nelson Mandela’s death, Professor Bernadette Atuahene examines the leader’s legacy in a guest post at The Faculty Lounge blog. Read an excerpt below:

    Today is the first anniversary of Nelson Mandela’s death. He became an international icon because he chose reconciliation and forgiveness over war and vengeance. There is no doubt that Mandela was a great man and a great leader. But, now that we have mourned, it is time to take a critical look at his legacy. When we scratch beneath the surface, we find that the political bargain that he brokered to bring an end to apartheid while avoiding massive bloodletting and economic disintegration is now falling apart.

    Due to massive colonial and apartheid era land theft, when apartheid ended in 1994, 87% of the land was owned by whites although they constituted less than 10% of the population. The bargain allowed whites got to keep their land despite how it was acquired. In exchange, blacks got the promise of land reform. This year, South Africa celebrates 20 years of democracy and the state has transferred only about 10% of the land from whites back to blacks. Whites have secure land rights while the promise made to blacks has gone unfulfilled. Needless to say, many blacks are losing their patience.

    Read the rest of this post at The Faculty Lounge.

    Vogel Contributes to Lawfare

    by  • December 4, 2014 • 0 Comments

    Visiting Assistant Professor Ryan Vogel has authored a new post on Lawfare, a leading national security blog. The post analyzes a preliminary examination of U.S. detention policies in Afghanistan that has been advanced by the International Criminal Court’s prosecutor. Read an excerpt below:

    As Professors Ryan Goodman and David Bosco have both noted in excellent posts at Just Security and Foreign Policy, respectively, over the past seven years, the International Criminal Court’s (ICC) Prosecutor has quietly but persistently advanced a “preliminary examination” of the conflict in Afghanistan.  Although it has been clear that the United States was one of the subjects of this examination, the Prosecutor had avoided direct references to U.S. forces in public documents. This changed on Tuesday when, for the first time, the Prosecutor’s annual report alleged that “members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees,” which could amount to the war crimes of “cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.”

    Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

    But even if a case against U.S. forces for alleged detention-related abuses is not dismissed because it is insufficiently grave to meet the thresholds for the ICC to proceed, it also seems questionable for the ICC to pursue such a case for reasons of complementarity (i.e., the principle that the ICC is not to move forward when a State is genuinely able and willing to investigate and prosecute).  The United States has one of the most developed and effective military justice systems in the world, which has the demonstrated ability and willingness to hold its own accountable for violations of the law, including any violations in the context of detention operations.  Indeed, there have not been many issues more thoroughly investigated by the military and U.S. Government in the past decade than that of detainee treatment.  Ironically, the Prosecutor’s report even cites some of these very investigations as evidence of crimes – or worse, evidence of a criminal policy – rather than citing these reports as acknowledgement of accountability measures.

    Click here to read the rest of this post at Lawfare.

    New Buccafusco Article on Well-Being and Public Policy

    by  • November 28, 2014 • 0 Comments

    Professor Christopher Buccafusco and colleagues John Bronsteen (Loyola Chicago) and Jonathan S. Masur (U of Chicago) have authored a new article titled “Well-Being and Public Policy.” The article is forthcoming as a chapter in the Oxford Handbook of Law & Economics, edited by Francesco Parisi. Read an abstract below:

    Governments rely on certain basic economic metrics and tools to analyze prospective laws and policies and to monitor how well their countries are doing. For decades, critics of such economic measures have argued that they ignore important aspects of value that are not fully reflected by output or by willingness to pay (WTP). In recent years, one of the most important developments in social science has been the emergence of psychological research measuring subjective well-being (SWB) or “happiness.” Researchers have made great strides in replicating and validating their findings about happiness, and world leaders have called for this research to be used to supply SWB-based metrics and tools as alternatives to the existing economic ones. In response to these calls, early efforts have been made to use SWB research to create new social indicators. In this chapter, we discuss some of the efforts that have been made in this regard. We first briefly explain the way that SWB is measured and the way those measurements have been validated. We then explain our own contribution — well-being analysis (WBA) — which uses happiness data to analyze prospective policies more accurately than does cost-benefit analysis. Next, we cover the ways in which SWB data have been used to generate prices that can be used by traditional economic analysis. We then discuss attempts to revise cost-benefit analysis to deal with the limitations stemming from the fact that it uses wealth to assess the effects of policy on quality of life. Finally, we lay out the strides that have been made toward creating an SWB-based alternative to GDP.

    Download the paper on SSRN here.

     

    Andrews Presents on Privacy at CALL

    by  • November 25, 2014 • 0 Comments

    By Clare Willis, Chicago-Kent Research Librarian


    Lori Andrews presents at CALL

    Photo credit: Emily Barney

    On November 20, 2014, the Chicago Association of Law Libraries welcomed Prof. Lori Andrews as the speaker for their quarterly business meeting. Prof. Andrews spoke on “Privacy’s Dying Gasp and How Librarians Can Resuscitate It.” She started the talk by sharing her life-long appreciation for libraries, including the law library at Yale. She pointed out that online sources allow her to research things that could not have been found in a bricks and mortar library. But even though there is more information online, she added, it comes at the cost of the tracking and aggregating of private information online. Prof. Andrews gave several examples of how information posted online can be used against the person who shared it: in one instance, the consultancy firm Deloitte encouraged a group of life insurers to look to an applicant’s social network pages, especially for evidence of such personal characteristics as being an avid reader; eating fast food; commuting to work; and having friends who are skydivers, to determine if the applicant is a bad underwriting risk. When asked why an avid reader might be a risk, she speculated that the insurer might believe that avid readers have more sedentary lifestyles.

    Prof. Andrews explained that the information collected online goes to advertising and while she believed that most people would not mind a coupon, other advertisements can be more intrusive, especially those that use someone’s name and/or likeness. For example, two work colleagues could both “like” drugstore.com on Facebook and that affinity could produce a Facebook advertisement that tells their mutual Facebook friends that the two “like” a brand of personal lubricant.

    Prof. Andrews explained how social media can infringe on the right to a fair trial. In one example, she noted that criminal penalties may be enhanced if there is evidence that a defendant wore gang colors in a picture on social media. She pointed out that the Los Angeles Police Department considers plaid and black, otherwise benign patterns or colors, to be gang colors. She also noted that jurors find it difficult not to Google the facts of a case or tweet about being a juror. She told of a librarian who was charged with contempt of court for conducting her own online research into shaken baby syndrome when she was a juror in such a case.

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    A Modest Proposal

    by  • November 12, 2014 • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [Reposted from ISCOTUSnow]


    Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

    While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.

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    The Second Amendment and Section 1983: A Podcast

    by  • November 11, 2014 • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]


    As many of you may know, Chicago-Kent’s CLE department has presented my two-day Conference on Section 1983 for over thirty years. The next one is scheduled for April  16-17, 2015.

    As part of the most recent Conference in April 2014, I spoke in depth about the Second Amendment (Heller, McDonald and circuit case law) and its relation to section 1983.

    I am pleased to present the 45 minute podcast of that presentation and hope you find it of interest. It’s a very good way to understand the basics.

    Here is the audio:

    I invite you to follow me on Twitter @NahmodLaw