• Archive for December, 2012

    Schmidt — Robert Bork and the Right to Discriminate

    by  • December 21, 2012 • Faculty Commentary, Scholarship • 0 Comments

    Originally posted Dec. 20th at the Legal History Blog, to which Professor Schmidt contributed several posts in November and December. In this post, Professor Schmidt mentions a forthcoming essay, “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” set to be published in a collection of legal history essays this spring.

    By Christopher Schmidt

    Robert Bork, who died yesterday [Dec. 19, 2012], left a legacy that includes leading roles in several major events in American legal history—among them, his failed nomination to the Supreme Court in 1987 and his role in Nixon’s “Saturday Night Massacre” as the Watergate scandal unfolded in 1973. But Bork’s first turn in the national spotlight came in 1963, when he became a uniquely influential critic of what would become Civil Rights Act of 1964. Bork, an expert in antitrust law, had only recently left private practice to teach at Yale Law School when he published an article in The New Republic attacking advocates of national public accommodations legislation for failing to appreciate its costs for individual freedom. It was to this article that Senator Ted Kennedy referred when he announced, during Bork’s confirmation hearing, that “in Robert Bork’s America, there is no room at the inn for blacks.”

    Kennedy was wrong to smear Bork as a segregationist. Bork’s point was not to defend racial segregation. Indeed, in the article he explicitly denounced the practice. But Kennedy was not wrong to draw attention to Bork’s deeply problematic argument against the Civil Rights Act. The kind of liberty-based critique of antidiscrimination policy that Bork was articulating is a topic I explore in a forthcoming essay titled “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement.” It will be included in Signposts: New Directions in Southern Legal History, a collection of seventeen essays, expertly edited by Sally Hadden and Patti Minter, which the University of Georgia Press will publish this spring.

    Bork’s New Republic article about the pending federal public accommodations bill has become probably the most famous defense of the “right to discriminate.” Bork began by separating himself from segregationist opponents of civil rights policy. He described the proposed legislation as based in “justifiable abhorrence of racial discrimination,” and he lamented that most critics of the law were “southern politicians who only a short while ago were defending laws that enforced racial segregation” and hence only opportunistic libertarians. Yet, Bork insisted, one may stand opposed to racial discrimination and still see something amiss in a national public accommodations law. “It is not whether racial prejudice or preference is a good thing but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them…. The trouble with freedom is that it will be used in ways we abhor.” State enforced segregation was wrong, but so was state enforced integration in certain spheres of private relations. The principle behind the proposed law, Bork explained in the most widely quoted lines of the article, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.”

    Predictably, the article became a favorite reference point for segregationists desperately looking for footholds from which to make their stand. Bork’s argument also found fertile ground in the new wave of libertarianism spearheaded by Barry Goldwater and his 1964 presidential campaign. Bork wrote a seventy-five page brief for Goldwater outlining the constitutional infirmities of the civil rights bill. It likely was influential with Goldwater, who ultimately voted against the Civil Rights Act.

    It is worth stopping for a moment to consider exactly why Bork’s argument has rightly earned the condemnation of history. (When, in 2010, Rand Paul, the newly elected U.S. Senator from Kentucky, attempted to revive some version of Bork’s argument, even his conservative allies told him to find a new issue to talk about.) It cannot be simply because judges have basically laughed such claims out of court whenever they appeared. In upholding the public accommodations provision of the Civil Rights Act in Heart of Atlanta Motel v. U.S. (1964), the Supreme Court summarily slapped down an array of long-shot “right to discriminate” claims. But just because a constitutional claim is not judicially cognizable does not mean that it is necessarily illegitimate in other institutional contexts. Furthermore, Bork was not wrong to insist that there are certain realms of private life in which government should not tell individuals with whom they can associate—who one invites to a dinner party, for instance, or to a book group or perhaps even to join a private club. Where Bork was wrong—where he was deeply, dangerously wrong—was in thinking that the operator of a restaurant or hotel or other privately owned public accommodations had some sort of liberty interest that outweighed the government interest in extinguishing the shameful practice of racial segregation from American society. While the general principle was not wrong, the application surely was.

    Thankfully, Bork lost this particular battle. It is important to recognize, however, that the more general argument in favor of a right to discriminate survived the civil rights movement. When employed in opposition to the desegregation of public accommodations, the argument failed to gain much adherence outside the Deep South. Its logic was too tangled, its implications too sweeping, its assumptions about the line between personal associations and public life too implausible in modern American life. Yet, by the late 1960s, when housing discrimination became a leading issue on the civil rights agenda, this rights claim, so improbable in its other applications, quickly became the argument of choice for open housing opponents throughout the nation.

    It was at least partly by design that claims of a right to discriminate were eventually picked up outside the South. Segregationists embraced the language of individual liberties because it provided a more politically acceptable way in which to resist civil rights, shifting the discussion of civil rights from a question of white supremacy versus equality toward a question of liberty versus equality. To recognize this turn to the language of freedom and rights was often flagrantly opportunistic and disingenuous does not take away from its effectiveness. For all the conspicuous failures of the libertarian challenge to civil rights it provided another way in which opponents of civil rights could effectively operate in a post-civil rights movement society. It provided a language through which conservatives could accept much of what the civil rights movement had accomplished, but also to insist that there should be limits to antidiscrimination policy. And these limits could be defended using the same tools that conservatives had been cultivating in other contexts: a commitment to limited government and a suspicion that excessive government regulation would lead the nation down a slippery slope to socialism, and a belief that the expansion of government power necessarily diminishes personal liberties. The argument that basic constitutional rights were at stake, that liberty must be championed alongside (or above) equality, opened the possibilities of creating alliances between defenders of segregation in the South and conservatives outside the South. Although Bork and other proponents of the right to discriminate failed in their effort to block the Civil Rights Act, their libertarian critique provided a potent common ground that helped unite the segregationist cause with conservatives around the country.

    Schmidt — Justice Black, Media Celebrity

    by  • December 13, 2012 • Faculty Commentary, Faculty Workshops/ Conferences • 0 Comments

    The following post originally appeared on the Legal History Blog, to which Professor Schmidt contributed several posts in November and December.

    By Christopher Schmidt

    Previously I wrote about Judge Posner’s recent lecture at Chicago-Kent’s Symposium on the Supreme Court and the American Public.  The judge took members of the Supreme Court to task for what he sees as their excessive and occasionally undignified roles as public intellectuals.  Although Judge Posner is certainly right that the frequency of justices participating in public intellectual activities has increased, there is a long and colorful history of members of the Supreme Court inserting themselves, for one reason or another, into public debate.

    At the same symposium, I gave a paper entitled “Beyond the Opinion: Why Do Supreme Court Justices Talk to the Public?”  My presentation revolved around a case study of Justice Hugo L. Black and his late-career experience as a reluctant but ultimately quite effective public figure.

    Justice Black spent most of his career on the High Court conscientiously avoiding making news for his off-the-bench activities.  His time on the Court had gotten off to an epically bad start when, just a month after being confirmed by his colleagues in the Senate, a journalist broke the story that the newest justice had been a member of the Ku Klux Klan in Alabama early in his political life.  Black, who was in Europe at the time, cut short his vacation and returned home to defend himself in a nationally broadcast radio address.  He basically said that he had been a member of the KKK but was no longer, and that his record in the Senate and his personal relationships with blacks, Catholics, and Jews showed that he was not a bigot.  (Newsweek’s headline following the speech: “I Did Join, I Resigned; The Case Is Closed.”)  The speech turned out to be remarkably successful in deflating the controversy.

    For at least two decades following this embarrassing episode, Black retreated from the public spotlight.  He would, as justices like to say, let his written opinions speak for themselves.  Through the 1940s and 1950s, as Black defined for himself in his judicial writings a distinctive approach to constitutional interpretation, as well as a notably accessible language of expression, he was regularly urged to present his views in a more public setting.  He refused.  “Should I conclude to deliver lectures anywhere,” he wrote to a friend in 1959, “it will be over the protests of certain inner voices that keep telling me that the best thing I can do is tend to my knittin’ here at home.”

    Eventually he did begin to accept a few of these invitations, however, and during the 1960s he delivered several much-discussed lectures and public interviews in which he laid out his views on the Constitution and the work of the Supreme Court.

    The highlight of Black’s late-life career as a public intellectual came in 1968 when the 82-year-old justice became the first justice to sit for a feature-length television interview.  CBS broadcast the interview on primetime on December 3, 1968.  His wide-ranging remarks made for surprisingly powerful television.

    Early in the interview, Black pulled a well-worn copy of the Constitution from his suit pocket.  “I don’t know it by heart,” he confessed.  “[M]y memory is not that good.  When I say something about it, I want to quote it precisely.”  When questioned about the attacks on the Court for its decisions protecting the rights of criminal defendants, Black went on the offensive.  “Well, the Court didn’t do it…. The Constitution-makers did it…. They were the ones that put in every one of these amendments…. And so, when they say the Court did it, that’s just a little wrong.  The Constitution did it.” He suggested that the Court’s implementation ruling in Brown v. Board of Education (1955), with its “all deliberate speed” formula, was ill-advised. (This was the page-one headline story in newspapers the following day.)  At one point, the 82-year-old justice picked up a volume of the U.S. Reports to read the concluding lines of his opinion in Chambers v. Florida (1940) in which he wrote that “courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.”  It left him wiping away tears. The interview was awarded an Emmy for the year’s best cultural documentary.

    (Full length audio of the interview is available through Oyez; the transcript of the interview was eventually published in Southwestern University Law Review 9 (1977): 937-951.)

    Justice Black could put on quite a show in these off-the-bench settings.  In terms of communicating with a general audience, in serving as a spokesperson for the Court, in expressing his deepest commitments about the law and the Constitution and the Court, in putting on display a sense of passionate commitment as well as gravitas, he might very well be unequaled among the Justices who have served on the Court.

    Supreme Court and the American Public Video

    by  • December 12, 2012 • Faculty Workshops/ Conferences, Multimedia, Scholarship • 0 Comments

    Video from this fall’s Symposium on the Supreme Court and the American Public (Nov. 15-16) is now available. View the 5-video playlist and program below.


    The Supreme Court and Celebrity Culture, keynote address by the Honorable Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit.

    The Supreme Court and Technology, featuring Chicago-Kent professors Jerry Goldman, Nancy Marder and Mark Rosen, with Keith Bybee and Tom Goldstein.

    Ideology, Neutrality, and Self-Deception: What the Supreme Court Says and What the Public Hears, featuring Chicago-Kent professors Carolyn Shapiro and Christopher Buccafusco, with Dan Kahan, Dan Simon, Nicholas Scurish, and Tom Tyler.

    Journalists Roundtable, featuring Kimberly Atkins, Amy Howe, Tony Mauro, David Savage, and Linda Greenhouse.

    Beyond the Written Opinion: When Justices Speak to the Public, featuring Chicago-Kent professors Christopher Schmidt and Sheldon Nahmod, with Jason Mazzone and Jeffrey Rosen.

    Weekly Faculty in the News, 12/12

    by  • December 12, 2012 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources this week.

    12/7 – Dean Harold Krent was interviewed by the Chicago Daily Law Bulletin as part of a Q&A series with deans of Illinois law schools. Go to the Law Bulletin’s site.

    12/10 – Professor Richard Kling was interviewed by ABC7 Chicago, Chicago Tonight, and NBC5 Chicago about a case involving former Mayor Richard M. Daley’s nephew, Richard Vanecko. Vanecko pleaded not guilty to an involuntary manslaughter charge in connection with the 2004 death of David Koschman.

    Read/watch more of the Channel 7 story here.

    Schwartz Presentation on PAEs

    by  • December 11, 2012 • Faculty Workshops/ Conferences, Scholarship • 0 Comments

    On December 10, Professor David Schwartz participated in a Federal Trade Commission and Department of Justice joint public workshop exploring “the impact of patent assertion entity (PAE) activities on innovation and competition and the implications for antitrust enforcement and policy.” Schwartz presented on a panel titled “Potential Harms from PAE Activity.”

    The Intellectual Asset Management blog profiled Professor Schwartz’s panel here, highlighting his recent article Analyzing the Role of Non-Practicing Entities in the Patent System (with J. Kesan). Read an excerpt from the blog post below:

    “One panel that looks to be very interesting is the one entitled ‘Potential Harms From PAE Activity,’ which is scheduled for the afternoon. Among those slated to appear is Michael Meurer who, along with James Bessen, has authored a number of widely-publicised books and papers that have been highly critical of NPEs and of the US patent system in general. Alongside him will be David Schwartz from the Illinois Institute of Technology Chicago-Kent College of Law who with co-author Jay Kesan produced a compelling paper that questioned some of the research Bessen and Meurer have done on NPEs and which raised concerns about a number of the conclusions the two have reached about them. The sparks could fly!”
    (Read more)

    Read Professor Schwartz’s article hereFor a previous Intellectual Asset Management blog post giving in-depth analysis of this article, click here.

    Haugh on International Conflict

    by  • December 10, 2012 • Scholarship • 0 Comments

    Sexual Violence as an International Crime: Interdisciplinary Approaches (Anne-Marie de Brouwer et al. eds.), a new book featuring a chapter by Visiting Assistant Professor Todd Haugh, will be published this month. Haugh’s chapter–Reasonable Grounds Evidence Involving Sexual Violence in Darfur, co-authored with John Hagan (Northwestern) and Richard Brooks (Yale)–addresses using social science evidence to identify and prosecute sexual violence and genocide in international conflict. Read the chapter abstract below:

    “Internal and international conflicts can often involve a level of impunity that allows sexual violence to persist unchecked by military and political leaders. The recent reversal by an appeals panel at the International Criminal Court of a pretrial decision not to charge President al-Bashir of Sudan with genocide in Darfur offers an important foundation for introducing new types of evidence that can increase the investigation and prosecution of sexual violence during conflicts. The reversal cited the incorrect use of the ‘beyond a reasonable doubt’ standard when the lesser standard of ‘reasonable grounds’ applied. Social science provides methods and measures that can be uniquely used to develop reasonable grounds evidence, for example, to demonstrate the roles of physical perpetrators acting together in horizontal relationships, as well as to establish the indirect participation through vertical relationships of higher-level defendants, in a chain of command of superior responsibility. We illustrate these points by presenting social science evidence of the responsibility of President al-Bashir and middle- and lower-level figures in genocidal violence in Darfur.”

    Download the chapter from SSRN here

    Nahmod — Myths About the Supreme Court

    by  • December 7, 2012 • Faculty Commentary • 0 Comments

    The following is the third post in Professor Sheldon Nahmod’s new series of posts called “Know Your Constitution.” The series intends “to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.” Cross-posted from the original post at Professor Nahmod’s blog, Nahmod Law.

    By Sheldon Nahmod

    This is the third post in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.

    The First Myth. The Supreme Court’s primary function is to do justice.

    Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.

    Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.

    Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on. (more…)

    Harpalani on Fisher v. Texas

    by  • December 7, 2012 • Scholarship • 0 Comments

    Visiting Assistant Professor Vinay Harpalani has posted a new article to SSRN titled Fisher‘s Fishing Expedition (15 U. Pa. J. Const. L. Height. Scrutiny, forthcoming 2013). The article is Harpalani’s second this year on the Supreme Court affirmative action case, Fisher v. University of Texas at Austin. Read the abstract below.

    This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of ‘critical mass’ and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher.

    Download the article on SSRN here.

    Additionally, click here download Professor Harpalani’s first article on Fisher v. Texas, Diversity within Racial Groups and the Constitutionality of Race Conscious Admissions (15 U. Pa. J. Const. L., forthcoming 2012).

    New Post on Schwartz Article

    by  • December 6, 2012 • Faculty in the News, Scholarship • 0 Comments

    R. David Donoghue, author of the Retail Patent Litigation blog, has written a new post highlighting recent scholarship by Professor David Schwartz, whom Donoghue says has “developed a reputation for high-end empirical analysis of patent issues.”

    Donoghue offers an analysis of Schwartz’s new article co-authored with Christopher Seaman, Standards of Proof in Civil Litigation: An Experiment from Patent Law (Harv. J.L. & Tech., forthcoming 2013), drawing out key themes and practical considerations for retailers and patent defendants.

    Go to article: Microsoft v. i4i: Snatching Victory from the Jaws of Defeat