• Archive for November, 2012

    Baker — Marriage Outside the Constitution

    by  • November 30, 2012 • Faculty Commentary, Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    This is the second of this week’s posts highlighting Professor Katharine Baker’s participation in a recent online symposium that discussed Georgetown scholar Robin West’s book Normative Jurisprudence: An Introduction. In the book, West argues that current “normative legal scholarship – scholarship that is aimed at criticism and reform – is now lacking a foundation in jurisprudential thought,” and she suggests a return to “the traditional understanding of the purpose of legal scholarship.”
    In the entry below, cross-posted from the original post on the Concurring Opinions blog, Professor Baker writes about “how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause.” Click here to access the full archive for the symposium.

    By Katharine Baker


    This entry is about how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause. It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships than the benefits of them. For decades now, legal academics have criticized the way the law insulates relationships, shields them from scrutiny, and allows them to be violent and patriarchal.

    It’s not that this critique is wrong, it’s just that it is highly likely that most of the people reading it, if not making it (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued. Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has value and which provides for them deep sources of love and support and joy.

    For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and works very well for educated elites. We want to get married, we get married, we stay married, we do our damndest to raise our 2.3 children in a household with two married parents . . . but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us. But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.

    I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique. Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship? Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would be willing to just walk into court and tell the judge about it? Might we not need to structure our legal interventions so as to protect privacy and not blow it apart?—because if we do not, she is never coming forward anyway. (more…)

    Shapiro on Work and Families

    by  • November 27, 2012 • Faculty Scholarship • 0 Comments

    Read Professor Carolyn Shapiro’s recent book review, Compassion and Coalitions: A Review of Reshaping the Work-Family Debate: Why Men and Class Matter by Joan Williams, now available on SSRN. The book review appeared in volume 15 of the Emp. Rts. & Emp. Pol’y J. (2011). Read the abstract below.

    Reshaping the Work-Family Debate: Why Men and Class Matter by Joan Williams is illuminating, intellectually challenging, and insightful. It is not, however, a typical law professor book. Neither academic inquiry nor policy analysis (although it contains elements of both), Reshaping the Work-Family Debate is more of a manifesto. Williams seeks measurable and meaningful change in the family and work lives of Americans, even if that change is imperfect or incomplete, and she sees theoretical or ideological rigidity as one obstacle to such change.

    Williams believes that coalition-building is essential to addressing the work family challenges she identifies. Although she has a lengthy list of policy proposals, she spends very little time in this book making the case for them because she believes that in our current political climate, enactment of such policies is impossible. So she wants to change that climate, by urging women to recruit men and progressive elites to make common cause with the white working class.

    This review evaluates and describes Williams’ insights and proposed strategies for coalition-building. But it also discusses some gaps in Williams’ analysis, such as her lack of focus on race and on single parents. These gaps are ripe for future work by Williams and by the many activists and academics she inspires.

    Download the article from SSRN here.

    Two New Articles by Birdthistle

    by  • November 26, 2012 • Faculty Scholarship • 0 Comments

    Professor William Birdthistle has recently uploaded two new articles to SSRN, The Supreme Court’s Theory of the Fund (37 J. Corp. L. 771, 2012) and Becoming the Fifth Branch (working paper, with M. Todd Henderson). Read the abstracts for both articles below.

    The Supreme Court’s Theory of the Fund Abstract

    Just as the firm has long served as the foundational molecule of the U.S. capitalist economy, theories of the firm have for more than a century dominated legal and economic discourse. Ever since Ronald Coase published The Nature of the Firm in 1937 and asked why firms should exist in an efficient market, classicists and neoclassicists have competed to develop theories — predominantly managerialist and contractual — that best explain the structure and behavior of business organizations.

    The investment fund, by contrast, has languished at the margins of corporate theory, relegated as simply a minor, if somewhat curious, example of the firm. But as the flow of assets into funds has swollen dramatically in recent years, so too has the relevance of the question whether funds are, in fact, best considered a subspecies of the firm or instead ought to be evaluated as independent phenomena.

    Part II of this Article discusses the shortcomings of the recent ruling in Janus Capital Group v. First Derivative Traders, taking particular exception with the remarkable formalism of the majority’s reasoning, which appears to ignore or misapprehend the actual operations of mutual funds. If operating companies follow the lead of investment funds and use Janus as a model for immunity against securities litigation, deterrence of financial fraud is likely to drop substantially. Part III considers the potentially deleterious implications of the Court’s fund jurisprudence and predicts that substantial mischief will flow from the decision should its lessons be taken advantage of in other sectors of the economy. Part IV considers the theoretical lens — the theory of the fund — that justices of the Supreme Court appear to use to examine investment funds, and it identifies mistaken assumptions and problems with that lens and its use in the pair of recent rulings in Janus and Jones v. Harris. This Article considers whether alternative theories of the firm might inform a more useful theory of the fund for both the judicial and legislative branches in the future.

    Download the article from SSRN here.

    Becoming the Fifth Branch Abstract

    Observers of our federal republic have long acknowledged that a fourth branch of government comprising administrative agencies has arisen to join the original three established by the Constitution. In this article, we focus our attention on the emergence of perhaps yet another, comprising financial self-regulatory organizations. In the late eighteenth century, long before the creation of state and federal securities authorities, the financial industry created its own self-regulatory organizations. These private institutions then coexisted with the public authorities for much of the past century in a complementary array of informal and formal policing mechanisms. That equilibrium, however, appears to be growing increasingly imbalanced, as financial SROs such as FINRA transform from “self-regulatory” into “quasigovernmental” organizations.

    We describe this change through an account that describes how SROs are losing their independence, growing distant from their industry members, and accruing rulemaking, enforcement, and adjudicative powers that more closely resemble governmental agencies such as the Securities and Exchange Commission and the Commodity Futures Trading Commission. We then consider the confluence of forces that might be driving this increasingly governmental shift, including among others, demographic changes in the style and size of retail investments in the securities markets, the one-way ratchet effect of high-publicity failures and scandals, and the public choice incentives of regulators and the compliance industry.

    The process by which such self-regulatory organizations shed their independence for an increasingly governmental role is an undesirable but largely inexorable development, and we offer some initial ideas for how to forestall it.

    Download the article from SSRN here.

    Symposium on the Supreme Court Highlights, Part 3

    by  • November 21, 2012 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    On November 15-16, Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and the Chicago-Kent Law Review hosted a symposium on the Supreme Court and the American Public. Chicago-Kent faculty members Jerry Goldman, Nancy Marder, Carolyn Shapiro, and Christopher Schmidt presented at the symposium, and faculty members Mark Rosen, Christopher Buccafusco, and Sheldon Nahmod moderated panels. Click here for more information about ISCOTUS. Read Part 1 of the symposium highlights here and Part 2 here.

    Beyond the Written Opinion: When Justices Speak to the Public

    In the last panel of the symposium, speakers discussed the occasions when Supreme Court justices speak to the public outside of their official discourse.

    Christopher Schmidt – Beyond the Opinion: Why Do Supreme Court Justices Talk to the Public?

    Professor Christopher Schmidt presented on the extrajudicial voice of the Supreme Court—what motivations lead justices to address the public beyond their written opinions? Schmidt used the life of Justice Hugo Black (1886-1971) as a case study in this topic. After an early avoidance of the public, Black in his later years sought more direct ways of speaking to the public outside of his Court opinions. Black used these occasions variously to defend himself when accused of changing his jurisprudence and to protect the Court when he felt its legitimacy was threatened.

    Building on the specific example of Black, Schmidt listed common motivations that cause most justices to speak beyond their opinions. One such motivation involves personal reasons—often, justices wish to relate their own personal stories to the public, as in the case of William O. Douglas, who wrote memoirs and an autobiography. In other instances, justices may address citizens for the purpose of providing general legal education on the Constitution, the Supreme Court, or a particular case. In particularly controversial instances, justices may wish to speak to the public in order to protect and uphold the institutional legitimacy of the Supreme Court. If justices feel that the mainstream press is not accurately reporting cases, they may try to correct public perception of their decisions. Finally, some justices address the public out of jurisprudential motivations—they wish to articulate their own personal views on law and justice.

    Schmidt has written extensively on the Supreme Court and legal history. His current book project, titledCreating Brown v. Board of Education: Law, Ideology, and Constitutional Change, 1941-2007, examines the political and intellectual context behind the Supreme Court’s landmark 1954 school desegregation decision and efforts of subsequent generations to redefine Brown’s meaning and significance.

    Visit Professor Schmidt’s SSRN and Bepress pages to read more of his scholarship, including “‘Freedom Comes Only from the Law’: The Debate Over Law’s Capacity and the Making of Brown v. Board of Education,” “Oral Dissenting on the Supreme Court” (with Chicago-Kent faculty member Carolyn Shapiro), and “Brown and the Colorblind Constitution.”


    Professor Schmidt was joined in the last panel by speakers Jason Mazzone (Illinois), Jeffrey Rosen (George Washington), and moderator Sheldon Nahmod (Chicago-Kent).

    Symposium on the Supreme Court Highlights, Part 2

    by  • November 20, 2012 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    On November 15-16, Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and the Chicago-Kent Law Review hosted a symposium on the Supreme Court and the American Public. Chicago-Kent faculty members Jerry Goldman, Nancy Marder, Carolyn Shapiro, and Christopher Schmidt presented at the symposium, and faculty members Mark Rosen, Christopher Buccafusco, and Sheldon Nahmod moderated panels. Click here for more information about ISCOTUS. Read Part 1 of the symposium highlights here and Part 3 here.

    Ideology, Neutrality, and Self-Deception: What the Supreme Court Says and What the Public Hears

    In the second panel of the symposium, speakers examined the psychological constructs and ideologies that influence the Supreme Court’s decision-making and the public’s perceptions of those decisions. The panel featured a variety of first-hand empirical data drawn from law-themed social research.

    Carolyn Shapiro – Admitting Subjectivity and Claiming Neutrality in Confirmation Hearings

    Professor Carolyn Shapiro—director of Chicago-Kent’s Institute on the Supreme Court of the United States—focused on justices’ claims of “neutrality” in their confirmation hearings. In his confirmation hearing, Chief Justice John Roberts likened judges to neutral umpires, objectively interpreting cases. However, because many cases decided by the Supreme Court require the exercise of subjective judgment, these claims of neutrality can cause cognitive dissonance in the average person when justices who claim to be neutral reach conclusions that that person does not agree with.

    Shapiro presented the findings of an original study that looked at 30 confirmation hearings of Supreme Court nominees since 1955, when the confirmation hearing process became a requirement for all nominees. In these hearings, she investigated whether the nominee claimed that judging is objectively neutral or whether the nominee discussed subjective judgment as an inevitable or good aspect of judging. Shapiro also tracked independent variables such as the perceived ideology or party of the nominee and the political party of the Senators posing questions in the hearing.

    Shapiro found that a nominee was more likely to claim neutrality when the hearing was more recent, when the questioning Senator was a Republican, and when the questioning Senator’s party was in opposition to the president’s party. The nominee was more likely to acknowledge subjectivity if the nominee was a Democratic appointee.

    If the party of a nominee or of a Senator affects whether the nominee claims absolute neutrality or admits to some subjectivity, what does this mean for the Court’s legitimacy? Would it be better for all parties to admit the same things, including an uncertainty about how judgments are made? Shapiro addressed these implications in the final section of her presentation, stressing the need for future research in this area. Questions about the Court’s legitimacy are key, she said, especially when there is a mismatch between the claims made at confirmation hearings and the way the Court reaches its actual decisions. An article summarizing this study will appear in a forthcoming issue of the Chicago-Kent Law Review.

    Professor Shapiro has written extensively on the Supreme Court and has advocated for the use of careful empirical research in studying the Court. Visit her SSRN and Bepress pages to read more of her scholarship, including articles on the Supreme Court such as “Oral Dissenting on the Supreme Court” (with Chicago-Kent faculty member Christopher Schmidt), “The Context of Ideology: Law, Politics, and Empirical Legal Scholarship,” and “The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court.”


    Professor Shapiro was joined in the second panel by Dan Kahan (Yale), Dan Simon (USC) and Nicholas Scurich (UC-Irvine), Tom Tyler (Yale), and moderator Chris Buccafusco (Chicago-Kent).

    Symposium on the Supreme Court Highlights, Part 1

    by  • November 19, 2012 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    On November 15-16, Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and the Chicago-Kent Law Review hosted a symposium on the Supreme Court and the American Public. Chicago-Kent faculty members Jerry GoldmanNancy Marder, Carolyn Shapiro, and Christopher Schmidt presented at the symposium, and faculty members Mark Rosen, Christopher Buccafusco, and Sheldon Nahmod moderated panels. Click here for more information about ISCOTUS. Read Part 2 of the symposium highlights here and Part 3 here.

    The Supreme Court and Technology

    In the first panel of the symposium, speakers addressed various issues concerning the Supreme Court and technology, including how the Court uses technology and what steps it might take to further incorporate technology into its practice.

    Jerry Goldman – From Opacity to Transparency in Three Easy Steps

    Professor Jerry Goldman—founder and director of the Oyez Project, a multimedia archive devoted  to the Supreme Court and its work—presented on the Court’s official website (www.supremecourt.gov). Goldman explained that the Court’s online presence has been marked by opacity and inertia and that improvements are required as information-seeking audiences look to the Court for accessible content. He proposed three steps the Court could take to move “from opacity to transparency.”

    First, the Court should improve accessibility to content, making its website easier to navigate. Currently, case briefs are difficult to find and read because they are hosted by the ABA and not the Court. These documents should be made publicly available through the Court’s website. Second, the Court needs to provide structure to the content on its site, indexing case and document information in a consistent and easily searchable manner. Finally, the Court needs to improve its archival standards, especially in regard to audio files. The Court currently records its hearings in the low-quality mp3 format; in order to improve quality and to align its practice with recording standards, the Court should make all of its recordings in a lossless, archival format.

    If the Court can begin to take these steps—hosting all of its own content, providing structure to content, and improving its archival standards—it can become a more transparent, interactive, and informative site.

    Visit the Oyez Project for more information on the Supreme Court and access to audio files from historic cases.

    Nancy Marder – The Supreme Court and Images

    Professor Nancy Marder also spoke in the first panel on the Supreme Court and technology, advocating for the Court’s use of images, maps, and other visual media in cases. Images can be useful aides in opinions, Marder explained, because they provide context and are more accessible than footnotes. She named notable examples of cases—including Carnival Cruise Lines, Inc. v. Shute and Brown v. Plata—that have used images to great effect.

    While Marder encouraged the Court’s use of images, she also cautioned against irresponsibility with images. Images are powerful and often controversial, and justices who use images must think carefully before using them and must explain them with words. Dissenters should also acknowledge and challenge any images used, just as they would a footnote. Only with such care and thoroughness can the use of images contribute healthily to the Court’s practice.

    Marder also called for practical reform regarding the use of images. Currently, many images are inaccessible or difficult to see in online versions of reports and opinions. Online versions of opinions should be changed to accommodate the inclusion of images.

    For more of Professor Marder’s scholarship on the Supreme Court, visit her SSRN and Bepress pages.


    The first panel also included Keith Bybee of Syracuse University, Tom Goldstein of SCOTUSblog, and moderator Mark Rosen of Chicago-Kent.

    Symposium on the Supreme Court and the American Public

    by  • November 15, 2012 • Faculty Workshops/ Conferences • 0 Comments

    [Via the Institute on the Supreme Court of the United States]


    The symposium on the Supreme Court and the American Public, hosted by Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and the Chicago-Kent Law Review, will take place today and tomorrow (Nov. 15 & 16). Panelists will present on:

    • How the Court uses technology;
    • What the public hears when decisions are made;
    • How Supreme Court Justices communicate with the public outside of their written opinions; and
    • The role of journalists covering Court decisions.

    Presenters include the Honorable Richard A. Posner (U.S. Court of Appeals 7th Circuit Chicago), Tom Goldstein (SCOTUSblog, Harvard and Stanford Supreme Court Clinics), Jeffrey Rosen (George Washington Law, The New Republic). Many of the papers presented will appear in a symposium issue of the Chicago-Kent Law Review.

    Don’t miss Judge Posner’s lecture on “The Supreme Court and Celebrity Culture” later today.

    Click here for the full list of presenters and the symposium’s schedule.