• Kling Comments on Dennis Hastert Indictment

    by  • June 10, 2015 • 0 Comments

    Professor Richard Kling has spoken with numerous news sources about the recent federal indictment and arraignment of former U.S. House Speaker Dennis Hastert. According to Prof. Kling, the former speaker will likely accept a plea deal to avoid the public spotlight of an extended trial. See below for a roundup of Prof. Kling’s media appearances:

    Video

    Audio

    Hastert pleads not guilty in hush money case,” WBEZ/NPR

    Elonis v. United States: Treading Carefully with Regard to Threats and Free Speech

    by  • June 5, 2015 • 0 Comments

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]


    This Monday, June 1, 2015, the Supreme Court handed down its long-awaited decision in Elonis v. United States. In a 7-2 ruling by Chief Justice John G. Roberts, Jr., the Court narrowed the circumstances under which individuals can be convicted of making criminal threats under federal law when they post statements on social media like Facebook. At the same time, the Court showed a prudent inclination to tread cautiously in a difficult area.

    After Anthony Elonis’s wife left him, he began to write graphically violent rap lyrics and post them to his Facebook account. In several posts, he fantasized about murdering his estranged wife. Others contained violent thoughts about the workplace from which he had been fired, his former co-workers, and an FBI agent who had investigated the matter. In one post, he even talked about massacring a local kindergarten class.

    Elonis was tried and convicted in federal court of four counts of violating 18 U.S.C. § 875(c), a 1939 law that makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The trial judge instructed the jury that, under this statute, it is not necessary for the prosecution to prove that the defendant intended his statements to be threatening. Rather, it is enough to prove that the defendant reasonably should have known that other people would take his statements to be threats—a standard that is often referred to as negligence.

    On appeal, the United States Court of Appeals for the Third Circuit agreed with this interpretation of § 875(c). The court also rejected Elonis’s argument that the posts were protected by the First Amendment freedom of speech. Instead, the court held that when a person makes a statement that he reasonably should know will be taken as a threat, this is enough to characterize the statement as a “true threat”—a category of speech that the Supreme Court has held to be outside the protection of the First Amendment.

    In their appeal to the Supreme Court, Elonis’s lawyers urged the Justices to clarify their “true threats” jurisprudence by holding that, under the First Amendment, an individual can never be held criminally responsible for making a threat unless he subjectively intended his statement to be threatening. In response, the federal government defended the negligence standard which had been accepted by the Third Circuit as well as by most other federal courts.

    On Monday, the Supreme Court handed Elonis a victory by overturning his conviction. At the same time, however, the Court declined his invitation to issue a broad ruling on First Amendment grounds. Instead, the majority took a minimalist approach, deciding no more than was absolutely necessary to dispose of the case before it. In particular, the majority focused solely on the statute under which Elonis had been convicted. Although the text of § 875(c) does not contain a state-of-mind requirement, that was not the end of the story. As Chief Justice Roberts explained, our legal tradition has long followed the general principle that an individual can be convicted of a crime only when he has engaged in conscious wrongdoing. It follows that, to convict a defendant under § 875(c), the government should be required to prove more than mere negligence. The statute’s state-of-mind requirement clearly would be satisfied if the defendant acted with the purpose of threatening another or if he knew that his statement would be viewed as a threat. At oral argument, some members of the Court had suggested that it should be enough if the defendant was reckless in the sense that he acted with an awareness of a substantial risk that his statement would be taken as a threat. However, because the recklessness issue had not been adequately discussed in the lower courts or in the parties’ briefs and arguments, the Chief Justice declined to address whether recklessness was sufficient. And because he overturned Elonis’s conviction on statutory grounds, he also found it unnecessary to address the First Amendment issues in the case.

    The Court’s determination to avoid sweeping constitutional pronouncements in Elonis was a wise one, for the problems that arise in this area are far more complex than they may seem at first glance. In cases like Elonis, in which an individual is being prosecuted for a criminal offense, our legal system has traditionally insisted on high standards of culpability and proof to ensure that innocent persons are not subjected to unjustified stigma and punishment. In contrast, other cases involve civil suits that are brought by private individuals or groups for the harms that they have suffered from threatening statements. In still other cases, an individual may petition a court to issue an order of protection based on threatening speech or conduct by an abusive partner. It is highly doubtful that the legal and constitutional standards for threats should be the same in each of these contexts. Thus, it may well be reasonable to award civil damages or to grant an order of protection on less demanding grounds than should be required for a criminal conviction—a position that might have been precluded by a broad ruling that speech is protected by the First Amendment unless it amounts to an intentional or knowing (or even a reckless) threat.

    The nature of the speech at issue may also play a crucial role. As the Court has indicated in other cases, speech generally is entitled to substantially greater First Amendment protection when it is directed to a matter of public concern than when it relates to a purely private matter. This distinction suggests that a statement may more readily be treated as an unlawful threat in the latter situation (such as when the statement is directed against an ex-spouse) than in the former (such as when it occurs in the course of a political protest).

    As these considerations indicate, the Court in Elonis was quite right to refrain from announcing a one-size-fits-all definition of constitutionally unprotected “true threats.” For the same reasons, one can understand why the Justices chose to resolve the statutory issues as they did. The Court was confronted with a statute that did not specify any state-of-mind requirement, let alone address any of the complex issues that I have sketched. In this situation, it arguably was reasonable for the Court to hold that purpose or knowledge would suffice for a conviction under the statute but that mere negligence would not, while leaving it open to Congress or the lower courts to address the question of whether and in what situations recklessness should be enough.

    This is not to say that the majority’s minimalist resolution of Elonis comes without cost. By holding that proof of purpose or knowledge would satisfy § 875(c) while declining to address recklessness, the majority nudged the statute toward a higher standard of culpability than may be justified in some situations. In my view, recklessness should suffice to convict a defendant like Elonis who makes graphically violent statements concerning a former spouse or partner. Moreover, as the two dissenters pointed out, the Court’s decision will leave private individuals, prosecutors, defense lawyers, and lower courts in serious doubt about the standards that apply under § 875(c). As Justice Samuel A. Alito, Jr. observed, the Court proclaimed in Marbury v. Madison (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” while in Elonis the Court succeeded only in saying “what the law is not.” Likewise, Justice Clarence Thomas objected that the majority had “cast[] aside the approach used in nine Circuits and [left] nothing in its place.” In my view, it might indeed have been preferable in this case for the Court to have held that § 875(c) was satisfied by proof of recklessness, and that the First Amendment demanded no more in a criminal case like this, while leaving other issues to be resolved in the future. It may well be, however, that the Justices found themselves unable to forge a consensus in favor of recklessness or any other standard. If so, then while the decision in Elonis is hardly ideal, it may have been the best one attainable.

    Note: Professor Heyman was an advisor for an amicus brief in Elonis that was filed by the Domestic Violence Legal Empowerment and Appeals Project et al. in support of the respondent. The views expressed in this blog post are solely his own.

    Birdthistle on FIFA at the Volokh Conspiracy

    by  • June 3, 2015 • 0 Comments

    In two new guest posts at the Washington Post’s Volokh Conspiracy blog, Professor William Birdthistle unpacks the United States’ recent indictment of FIFA on charges of racketeering, bribery, money laundering, and fraud. In the first post, “Americanized football” (May 27, 2015), Prof. Birdthistle pursues the immediate questions raised by the indictment:

    Why is the United States bringing these charges? Perhaps a secret competition was held amongst international prosecutors, and we won the bidding over Qatar and Russia? No, that would never happen. Countries like the United Kingdom, Germany, and Spain might be far more likely candidates to police corruption in the game they love so much. But if they struck at King Blatter and missed, they could suffer serious reprisals from an organization that has amply proved its unprincipled style of governance. The United States may be the only country in the world both powerful enough and indifferent to soccer enough to hunt down FIFA.

    Continue reading at The Volokh Conspiracy→

    In the second post, “Burst Blatter” (June 2, 2015), Prof. Birdthistle looks at FIFA President Sepp Blatter, who was not named in the indictment but who resigned from his post this week:

    The New York Times reported Monday that a $10 million bribe for the South African World Cup had been authorized by Jérôme Valcke, Sepp’s bro-hugging number two at FIFA. FIFA, in true gangland style, immediately identified a dead person as the true perp, but documents published Tuesday showed Valcke’s name on key correspondence.

    What exactly was Valcke’s authority? FIFA said that Valcke, as secretary general, “has authority to make transactions.” But organizational by-laws, even of nonprofits, don’t typically authorize officers simply “to make transactions” — such unlimited authority would invite embezzling officers to fire off billions to a Cayman account and then disappear. Surely that couldn’t happen at FIFA, could it? Credible organizations often either specify a dollar amount up to which the person has spending authority or require a board resolution authorizing the officer to make specific payments. So perhaps Valcke made the payments without authorization or made them with Blatter’s full knowledge.

    Continue reading at The Volokh Conspiracy→

    Lee IP Article Makes “Best Of” List

    by  • May 13, 2015 • 0 Comments

    Professor Edward Lee’s article The Global Trade Mark (35 U. Pa. J. Int’l L. 917 (2014)) has been selected by the Intellectual Property Law Review as one of the best intellectual property articles of 2014. The article will appear in the 2015 edition of the Intellectual Property Law Review’s annual anthology, published by Thomson Reuters (West).

    Read an abstract of the article below, or download at http://ssrn.com/abstract=1804985.

    This Article offers a proposal for World Trade Organization (WTO) countries to adopt global intellectual property rights for a special class of trademarks: famous or well-known marks. Well-known marks are well-suited for greater departure from the territoriality principle, given the transnational protections for well-known marks that already exist under the Paris Convention and TRIPS Agreement. This Article proposes creating a Global Trademark (GTM) for well-known marks, to be governed by one, uniform international law. The GTM will span all countries in the WTO. The GTM is inspired, in part, by the Community Trade Mark (CTM) in the European Union, the first truly transnational intellectual property form. While the CTM is regional in scope, the GTM will be international.

    This Article proceeds in five Parts. Part I discusses the theory behind the Global Trade Mark (GTM) and why it is worth adopting today. Part II discusses the outlines of the proposed Global Trade Mark Treaty, whose signal feature will be to establish a uniform body of international law to govern the GTM and an International Court of the GTM to resolve conflicts over its interpretation. Part III discusses the two Pathways by which a trademark can be registered as a GTM: (1) international registration of an existing famous mark that is famous in a certain threshold number of countries (here under a proposed Rule of 7 countries, the formula of which is discussed below), or (2) an “intent-to-develop” registration of a mark an owner intends to make famous under the Rule of 7 countries within a prescribed time of 10 years. Part IV discusses enforcement of GTMs in national courts and post-registration issues, including abandonment and genericide. Part V addresses objections.

    Introducing the Spring 2015 Issue of Faculty Perspectives

    by  • May 8, 2015 • 0 Comments

    Faculty Perspectives is published regularly to highlight recent faculty scholarship at IIT Chicago-Kent College of Law. The latest issue spotlights our faculty’s work in the area of law, gender, and society. Katharine Baker, in an article forthcoming in the Minnesota Law Review, argues that the criminal law has been an inadequate vehicle for addressing rape and the norm of male entitlement to sex. In an excerpt from her book just published by the Cambridge University Press, Felice Batlan traces the history of legal aid and women’s role in shaping it. And Michael Spak, along with colleague Jonathan Tomes, enumerate the practical problems they see with modifying the military justice system to better handle sexual assault cases. Also in this issue, constitutional law scholar Steven Heyman considers the recent conservative-libertarian turn in First Amendment jurisprudence at the U.S. Supreme Court.

    View the Spring 2015 issue of Faculty Perspectives below or online at http://bit.ly/1PuQFY3. Find more recent Chicago-Kent scholarship at http://www.kentlaw.iit.edu/faculty/recent-scholarship.

    Walters and Ross-Jackson Win 2015 SBA Faculty Awards

    by  • May 1, 2015 • 0 Comments

    Two Chicago-Kent faculty members were honored at the Student Bar Association awards ceremony on April 27: Prof. Adrian Walters was named SBA Professor of the Year, and Marsha Ross-Jackson, Assistant Dean for Student Professional Development, was named SBA Adjunct Professor of the Year. Read the nomination text for both awards below.


    Walters SBA award

    Nomination text: Prof. Adrian Walters is a brilliant man who cares deeply about not only the success of his students but also actually getting to know them. He had made an effort to memorize all of our names before our very first class with him. Professor Walters also regularly updates his blog about any type of Contracts or legal issue he is interested in at the moment and encouraged his students to read it when it pertained to their learning. He facilitated the learning process inside and outside of the classroom and kept Contracts as fun and interesting as it could possibly get.


    ross-jackson SBA award

    Nomination text: Dean Ross-Jackson has been instrumental in increasing diversity and inclusion at Chicago-Kent. Dean Ross-Jackson is the frontrunner for Chicago-Kent’s diversity week and other diverse events on campus. In addition, she serves as Director of the Pre-Law Undergraduate Scholars Program and has been active in promoting Chicago-Kent to underrepresented high school students through DiscoverLaw, a program designed to give high school students a taste of the law school experience. Dean Ross-Jackson has been a tremendous role model, leader, and mentor at Chicago-Kent.

    Staudt’s Justice & Technology Practicum Celebrates Its Fifth Year

    by  • April 22, 2015 • 0 Comments

    By Alexander Rabanal, Access to Justice Fellow at Chicago-Kent’s Center for Access to Justice & Technology


    justice and tech practicum

     

    This fall marks the fifth year of Professor Ronald Staudt’s Justice & Technology Practicum, a groundbreaking course at IIT Chicago-Kent that teaches students how to create A2J Guided Interviews® and document assembly templates for use by self-represented litigants. A2J Guided Interviews are graphical interfaces that walk a person through a legal process and can also be used to generate a completed legal form. Since 2005, over 2.6 million A2J Guided Interviews have been run, producing over 1.5 million documents. With legal aid organizations typically burdened by limited resources and funding, Professor Staudt’s students make a critical contribution to closing the justice gap by creating powerful online self-help tools that scale up the delivery of legal assistance to those who cannot afford a private attorney or who are ineligible for legal aid.

    The Practicum is a hybrid classroom and clinical course. Students receive classroom instruction on the uses of technology to meet the legal needs of the poor and engage in lively discussions about the increasing role technology plays in both legal services delivery and private practice. Students are then paired with a legal aid attorney to address a justice problem and conduct critical legal research and fieldwork as the foundation for developing an interactive A2J Guided Interview and document assembly template for a legal aid organization. Over the past five years, Professor Staudt’s students have created interactive tools for legal aid organizations across the country, from California to North Carolina. Among other fieldwork activities, students may volunteer at the Self-Help Web Center at the Daley Center, where they help pro se litigants use A2J Guided Interviews and online legal self-help resources, such as those found on Illinois Legal Aid Online.

    (more…)

    Explore New Faculty Books

    by  • April 21, 2015 • 0 Comments

    Books That Matter is a new publication highlighting monographs, edited works, treatises, and casebooks written by Chicago-Kent faculty since 2012. These books have been published by presses including Oxford, Cambridge, and the University of Chicago and span more than 30 areas of law. Explore the publication below for more.

    For more recent Chicago-Kent faculty scholarship, visit http://www.kentlaw.iit.edu/faculty/recent-scholarship.

    Harding Receives 2015 John W. Rowe Excellence in Teaching Award

    by  • April 15, 2015 • 0 Comments

    Prof Sarah HardingIIT Chicago-Kent College of Law Professor Sarah Harding received the John W. Rowe Excellence in Teaching Award at IIT’s annual Faculty Recognition and Awards Reception on April 9. The award was given in recognition of Professor Harding’s noteworthy teaching efforts and dedication to IIT. University deans Christine Himes (Lewis College of Human Sciences), Harold Krent (Chicago-Kent), and Wiel Arets (College of Architecture) served on the review committee for the award, which was announced by IIT Provost Alan Cramb. The award is named for John W. Rowe, past chairman of the IIT Board of Trustees and chairman emeritus of Exelon Corporation.

    Professor Harding joined the IIT Chicago-Kent faculty in 1995. Her research focuses primarily on property-related issues—in particular the social and cultural significance of property. She teaches a range of courses, including property law, cultural heritage law, comparative law, and comparative Constitutional law. From 2008 to 2014 she was associate dean for faculty research and development. Professor Harding has a B.A. from McGill University and holds law degrees from Dalhousie, Oxford (Rhodes Scholar), and Yale.

    Find Professor Harding’s full biography, including links to her scholarship, at: http://www.kentlaw.iit.edu/faculty/full-time-faculty/sarah-k-harding.

    Know Your Constitution (8): What is State Action?

    by  • March 12, 2015 • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]


    This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.

    Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.

    This post deals with the important concept of state action. Non-lawyers should understand that private persons cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

    The Basics

    The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

    This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

    (more…)

    American Academy of Appellate Lawyers Names Steinman Honorary Fellow

    by  • March 5, 2015 • 0 Comments

    [Reposted from IIT Chicago-Kent News]


    IIT Chicago-Kent College of Law Distinguished Professor Joan E. Steinman has been named an Honorary Fellow of the American Academy of Appellate Lawyers. Members are elected by the Academy’s board of directors. Professor Steinman will be inducted during the organization’s spring meeting April 16 to 18, in Santa Fe, New Mexico.

    Distinguished Professor Joan E. Steinman.

    Founded in 1990, the American Academy of Appellate Lawyers is “committed to advancing the administration of justice and promoting the highest standards of professionalism and advocacy in appellate courts.” Membership in the Academy is by invitation only, following nomination by current Fellows.

    A member of the IIT Chicago-Kent faculty since 1977, Professor Steinman teaches courses in civil procedure, complex litigation, and appellate courts. She was named a Distinguished Professor in 1999.

    Professor Steinman is a prolific legal scholar who has written articles on the associational privacy privilege in civil litigation, class actions, suits for money damages to vindicate First Amendment rights, pseudonymous litigation, law of the case doctrine, removal, supplemental jurisdiction, the effects of case consolidation on litigants’ procedural rights, several aspects of appellate jurisdiction and procedure, and other procedural issues. She is responsible for two volumes of the Wright, et al., Federal Practice and Procedure treatise, and co-authored a casebook on appellate courts.

    Professor Steinman is the first and only scholar to win two Eisenberg prizes from the American Academy of Appellate Lawyers. The award recognizes and encourages “publication of high-quality articles in the field of appellate practice and procedure.” In 2005, Professor Steinman received the award for her Georgia Law Review article “Irregulars: The Appellate Rights of Persons Who Are Not Full-Fledged Parties.” She was similarly honored in 2012 for “Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts’ Resolving Issues in the First Instance,” published in the Notre Dame Law Review. (more…)

    Perritt Presents at National Association of Attorneys General Meeting

    by  • March 3, 2015 • 0 Comments

    From February 23-25, the National Association of Attorneys General (NAAG) held its annual Winter Meeting in Washington, D.C., bringing together attorneys general, federal officials, and other professionals to discuss current legal issues. Professor Henry H. Perritt, Jr., spoke at the meeting in a panel on unmanned aircraft systems (“drones”) and the challenges that arise in regulating them. See a video of Prof. Perritt’s presentation above.

    In his presentation, Prof. Perritt urged lawmakers to resist the reflex to rush in and regulate drones with excessive restrictions—especially smaller “microdrones,” which pose little threat to safety or privacy but which are integral to the development of the technology. He commended the FAA’s recent notice of proposed rulemaking, which addresses some of the risks drones pose while leaving sufficient room for markets to drive technological innovation. In this proposal, regulations are tailored to reality, encouraging a culture of compliance and law-abiding autonomy appropriate to the technology. Contrary to a common opinion, Perritt argued that the law serves best when it follows technology in this manner, waiting to see how that technology plays out in the real world.

    Prof. Perritt has written extensively on drones for numerous law and trade publications. See more of his scholarship here.

    Notable speakers at the NAAG Winter Meeting included FTC Chairwoman Edith Ramirez, FBI Director James Comey, and US Vice President Joe Biden.