• Archive for April, 2013

    A Hint on Hollingsworth from a Criminal Case?

    by  • April 30, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]


    Case: Boyer v. Louisiana

    At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been “properly granted” and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four — it takes four votes to grant certiorari — would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG’ed a case involving a criminal defendant’s challenge to his conviction over the dissents of the four liberal justices.

    There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices — generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG’ed Hollingsworth should not lead to the conclusion that it won’t.

    Rosen on Religious Institutions and Liberal States

    by  • April 24, 2013 • Faculty Scholarship • 0 Comments

    Professor Mark Rosen has posted a new article to SSRN titled Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres (U. Ill. L. Rev., forthcoming). Read the abstract below:

    Alongside the contemporary consensus favoring strong protections for individual religious liberty, controversial new claims on behalf of religiously affiliated institutions have been asserted with increasing frequency. They raise difficult questions. For example, are churches entitled to a “ministerial exception” exempting them from federal anti-discrimination laws when hiring and firing ministers? Must Catholic hospitals be exempted from the Affordable Care Act’s “contraception mandate,” which requires that employers provide their employees health insurance that includes contraceptive devices, because use of contraceptives is contrary to Catholic tenets?

    To date, scholars have staked out two diametrically opposed approaches. One group argues that churches have inherent autonomy, and a corresponding jurisdictional independence of the state, vis-à-vis matters within the church’s domain. A second argues that churches are voluntary associations that accordingly enjoy no protections beyond their members’ constitutional and statutory rights. The first group favors the ministerial exception and exemptions from the contraception mandate, whereas the second group opposes them.

    This Article critiques both approaches, and provides an alternative framework derived from John Rawls’s monumental works on political theory. What this Article calls the “Religious Institution Principle” provides a basis for determining what qualifies as a religious institution, as it explains why religious institutions are not reducible to their members, and why they are meaningfully different from most, possibly all, other associations. But religious institutions do not have any inherent autonomy. Not all religions are entitled to the Religious Institution Principle’s protections, and the principle does not provide anything approaching full immunity from state regulation for the religions falling within its coverage. (more…)

    Baker — United States v. Windsor Amicus Brief

    by  • April 24, 2013 • Faculty Scholarship • 0 Comments

    Professor Katharine Baker has uploaded to SSRN an amicus brief, filed on behalf of Family Law Professors, on the merits of the Supreme Court case United States v. Windsor. Read the abstract below:

    This amicus brief – filed on behalf of Family Law Professors – clarifies the relationship between Congress and the states with regard to family status, particularly marital status. The brief argues that Section 3 of the Defense of Marriage Act disestablishes marital status, for all federal purposes, for one subset of married couples, in contravention of an exceedingly strong norm of federal deference to state family status determinations. Unlike any other federal statute, DOMA selectively withdraws state-conferred marital status. Regardless of whether the federal government has the power to abrogate marital status for one subset of married couples for all federal purposes, it had never, before DOMA, done so.

    Part I of the brief explains why DOMA cannot be justified as an attempt to ensure federal uniformity with regard to the treatment of marriage because federal law is still silent on critical eligibility criteria for marriage. Thus, similarly situated couples in different states have always been and still are treated differently at the federal level. Moreover, Congress’ alleged need to maintain uniformity does not comport with its long history of deference to state divorce determinations (which are marital status determinations), when there was tremendous diversity between the states with regard to eligibility for divorce. Section 3’s marital restriction is also inconsistent with Congress’ ongoing deference to state determinations of other family statuses, particularly parental status. Modern technological and scientific achievements have made diversity in the state laws of parenthood far more complicated and extensive than current state disagreements over marriage for same sex couples. Yet there is no federal law of parenthood.

    Part II of the brief explains how all existing federal statues pertaining to family status can be divided into three categories and all maintain the federal government’s traditional deference to state-determined family status. First, and most common, are federal statutes that implicitly invoke the state law of family status. Second, are federal statutes and regulations that explicitly invoke the state law of family status. Third, there are federal statutes and regulations that expand or restrict the category of who will be eligible for federal benefits under particular statutes based on policy reasons, particularly fraud-prevention and public fisc protection, pertinent to those specific statutes. None of those statutory definitions of marriage does what DOMA does, which is selectively withdraw marital status for one subset of marriages for all federal purposes.

    Download the brief from SSRN here.

    ISCOTUS in Windy City Times

    by  • April 18, 2013 • Faculty in the News, Faculty Workshops/ Conferences • 0 Comments

    On April 12, Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and the Constitutional Rights Foundation Chicago (CRFC) held a day-long conference for high school students called “A Day at the Supreme Court of the United States: A Special Focus on the Gay Marriage Cases.” C-K professors Carolyn Shapiro, Christopher Schmidt, and Jerry Goldman participated in the day’s many workshops.

    Read the full Windy City Times story here.

    Follow ISCOTUSnow for news and media on the Supreme Court.

    Section 1983 Civil Rights Litigation Conference

    by  • April 18, 2013 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    Today and tomorrow Chicago-Kent hosts the 30th annual Section 1983 Civil Rights Litigation Conference. Professor Sheldon Nahmod, a leading expert on §1983 and author of Civil Rights and Civil Liberties Litigation: The Law of Section 1983, is the program chair and will present on “The Section 1983 Claim.” Read more about the event below:

    Liability arising out of §1983 presents a continuing challenge for all municipal lawyers, private practitioners, and litigators who try cases in this dynamic area. Keeping up with this ever-changing environment is critical. In this two-day conference, you will learn both the fundamentals and more advanced aspects of §1983 practice and trial skills, and analyze the latest judicial decisions. Visit the program website for more information and to register online. The conference meets on Thursday, April 18, from 8:50 a.m. to 4:45 p.m. and on Friday, April 19, from 9:00 a.m. to 3:30 p.m.

    Professor Nahmod now blogs on §1983 and constitutional law at nahmodlaw.com.

    Chicago-Kent Research Paper Series No. 5.4

    by  • April 17, 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 (5.4) of the RPS was distributed on April 16. This edition includes the following articles:

    – From Roach Powder to Radical Humanism: Professor Derrick Bell’s ‘Critical’ Constitutional Pedagogy (Seattle U. L. Rev., forthcoming), by Vinay Harpalani

    – Sentencing the Why of White Collar Crime (82 Fordham L. Rev., forthcoming), by Todd Haugh

    – Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Decision (61 UCLA L. Rev., forthcoming), by Mark Rosen and Christopher Schmidt

    – Beyond Notice and Choice: Privacy, Norms, and Consent (Suffolk U. J. High Tech. L., forthcoming), by Richard Warner (with Robert Sloan, UIC)

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

    Heyman to Present Article for ACS

    by  • April 17, 2013 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    The Chicago Lawyer Chapter and the Chicago-Kent College of Law Student Chapter of the American Constitution Society (ACS) will hear Professor Steven Heyman present his recent article, To Drink the Cup of Fury: Funeral Picketing and the First Amendment, on Thursday, April 18. Click here for more information on the presentation, and read the article abstract below:

    In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence — the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive First Amendment protection, for the picketing is intended to condemn the deceased and to inflict severe distress on the mourners in violation of their rights to privacy, dignity, emotional well-being, and religious liberty. Finally, the Article shows that although Westboro prevailed in Snyder, this may prove to be a Pyrrhic victory, for the Court also suggested that states can protect mourners through carefully drawn buffer-zone laws.

    Download the article from SSRN here.

    UPDATE: Professor Heyman’s presentation was moved to Thursday, April 25.

    Warner to Speak at Cyber Security Conference

    by  • April 17, 2013 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    Professor Richard Warner will speak this week at the ForenSecure’13 Cyber Security & Forensics Conference, hosted by IIT’s School of Applied Technology in Wheaton.

    Professor Warner will present “Data, Privacy, Security, and the Courts: Where Are We? And, How Do We Get Out of Here?” at 8:00am on Thursday, April 18. The session abstract is below:

    Security experts, privacy advocates, courts, and businesses are not seeing eye to eye.  Privacy advocates call for severe restrictions on data collection, use, and retention and urge courts to see the invasion of privacy as a compensable harm.  Courts refuse to treat the mere invasion of privacy as a compensable harm unless there is an associated “present injury” (a quantifiable actual economic loss at a minimum), have not curtailed massive data collection, and have been reluctant to hold businesses liable for data breaches. Security experts emphasize importance of analyzing massive, long-term datasets to detect the anomalies that signal unauthorized access.  Businesses increasingly rely on the analysis of massive amounts of data for business planning and marketing.  The consequence is ever-diminishing privacy. We need a better tradeoff between privacy, security, and business than we have.  I identify some roads we should not take, and suggest one that we should.

    Click here for the full conference schedule and for more information on participants and sponsors.