• Archive for March, 2013

    “Forum on Same-Sex Marriage and the Supreme Court” Video

    by  • March 29, 2013 • Faculty Commentary, Faculty Workshops/ Conferences, Multimedia • 0 Comments

    IIT Chicago-Kent College of Law’s Institute on the Supreme Court of the United States (ISCOTUS) presented a “Forum on Same-Sex Marriage and the Supreme Court” on March 27, 2013, the second day of oral arguments in the Supreme Court cases Hollingsworth v. Perry (on the constitutionality of California Proposition 8) and United States v. Windsor (on the constitutionality of section 3 of the Defense of Marriage Act). The forum included commentary by Professors Katharine K. Baker, Steven J. Heyman, Carolyn Shapiro and Christopher W. Schmidt, and was co-sponsored by the American Constitution Society, Federalist Society and Chicago-Kent Lambdas.

    View the video of the forum below:

    Warner on Privacy, Norms, and Consent

    by  • March 29, 2013 • Faculty Scholarship • 0 Comments

    Professor Richard Warner and colleague Robert Sloan (UIC) have posted a new working paper to SSRN titled Beyond Notice and Choice: Privacy, Norms, and Consent. Here is the abstract:

    Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

    Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission explicitly endorse the Notice and Choice approach (and provide guidelines for its implementation). When the Notice contains information about data collection and use, the argument for Notice and Choice rests on two claims. First: a fully adequate implementation of the paradigm would ensure that website visitors can give free and informed consent to data collection and use practices. Second: the combined effect of all the individual decisions is an acceptable overall tradeoff between privacy and the benefits of collecting and using consumers’ data. There are (we contend) decisive critiques of both claims. So why do policy makers and privacy advocates continue to endorse Notice and Choice?

    Most likely, they see no need to seek an alternative. We find the critique of Notice and Choice conclusive, but our assessment is far from widely shared — and understandably so. Criticisms of Notice and Choice are scattered over several articles and books. No one has unified them and answered the obvious counterarguments. We do so. Making the critique plain, however, is not enough to ensure that policy makers turn to a viable alternative. The critiques are entirely negative; they do not offer any alternative to Notice and Choice. We offer an alternative: informational norms. When appropriate informational norms govern online data collection and use, they both ensure that visitors give free and informed consent to those practices, and yield an acceptable overall tradeoff between protecting privacy and the benefits of processing information. A fundamental difficulty is the lack of norms. Rapid advances in information processing technology have fueled new business models, and the rapid development has outpaced the slow evolution of norms. Notice and Choice cannot be pressed into service to remedy this lack. It is necessary to develop new norms.

    Download the paper from SSRN here.

    Forum on the Same-Sex Marriage Cases

    by  • March 27, 2013 • Faculty Commentary, Faculty Workshops/ Conferences, Multimedia • 0 Comments

    [Via Oyez/ISCOTUSnow]


    Today, at 3 pm CDT, IIT Chicago-Kent is presenting a forum on the same sex marriage cases. The forum will be streaming live here and will be posted later on Chicago-Kent’s YouTube channel. The event is cosponsored by ISCOTUS, as well as by the Chicago-Kent Lambdas and the Chicago-Kent chapters of The Federalist Society and The American Constitution Society. Panelists are Professors Steven Heyman, Katharine Baker, and Christopher Schmidt, and the event will be moderated by ISCOTUS director Professor Carolyn Shapiro. (All of these Chicago-Kent faculty members — and several of their colleagues — can also be seen discussing key issues in the cases here.)

    Today’s Prop. 8 Argument Audio — Now Available

    by  • March 26, 2013 • Multimedia • 0 Comments

    [Via Oyez/ISCOTUSnow]


    Case: Hollingsworth v. Perry

    Oyez will have oral argument audio in today’s Prop. 8 case around 1:00 PM Eastern Time today, moments after we have the audio from the Court. A synchronized, searchable transcript of the audio will be posted roughly 90 minutes after the audio.

    UPDATE: The audio is now available.

    For easy access to the audio and transcript, check out our ISCOTUSnow app for iPhone and iPad.

    Rosen and Schmidt on Limiting Principles and Popular Constitutionalism

    by  • March 22, 2013 • Faculty Scholarship • 0 Comments

    Professors Mark Rosen and Christopher Schmidt recently posted a new article to SSRN titled Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Decision (61 UCLA L. Rev., forthcoming). Here is the abstract:

    Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.

    This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one.

    The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts.

    We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.

    Download the article from SSRN here.

    New Resource for Same-Sex Marriage Cases

    by  • March 21, 2013 • Faculty Commentary, Faculty Scholarship, Multimedia • 0 Comments

    The Institute on the Supreme Court of the United States (ISCOTUS) and Oyez have collaborated to produce a comprehensive webpage dedicated to the upcoming Supreme Court cases on same-sex marriage, Hollingsworth v. Perry (to be argued March 26) and United States v. Windsor (to be argued March 27). The webpage features an interactive timeline of events as well as an array of video interviews on the politics, background, and issues associated with same-sex marriage.

    Click here to explore the page and to watch professors Steven Heyman, Katharine Baker, Christopher Schmidt, Joan Steinman, Sheldon Nahmod, and Carolyn Shapiro share their expertise and insight on the cases.

    Chicago-Kent Research Paper Series No. 5.3

    by  • March 20, 2013 • Faculty Scholarship • 0 Comments

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

    The latest edition of the RPS was distributed on March 19. This edition includes the following articles:

    – Sex and Equality (B.U. L. Rev., forthcoming), by Katharine Baker

    – Organizing Unions in the U.S. with International Framework Agreements: An Exploratory Study (U.C. Irvine L. Rev., forthcoming), by César F. Rosado Marzán

    – Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement (book chapter in Signposts: New Directions in Southern Legal History, forthcoming), by Christopher Schmidt

    A ‘Progressive Contraction of Jurisdiction’: The Making of the Modern Supreme Court (book chapter in Then & Now: Stories of Law and Progress, 2013), by Carolyn Shapiro

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