• Archive for January, 2014

    The Complexity of Consensus on the Supreme Court

    by  • January 31, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from H-Net Online]

    Reviewed in this post: Pamela C. Corley, Amy Steigerwalt, and Artemus Ward, The Puzzle of Unanimity: Consensus on the United States Supreme Court (Stanford University Press, 2013)

    Many of the most notable recent Supreme Court decisions have been sharply divided affairs, usually involving predictable configurations of conservative and liberal justices glaring across a vast chasm of ideological differences. The majority and dissenting opinions in cases such as last term’s decisions on the Voting Rights Act and the Defense of Marriage Act reflect such fundamentally opposing judicial worldviews that it can be hard to imagine their authors agreeing on much of anything of importance. Yet these 5-4 decisions, which capture the attention of the public and scholars alike, reflect only a fraction of the docket of the nation’s highest court. As the justices often remind audiences when writing or speaking about their work, they actually agree with each other quite often. Approximately one-third of all decided cases in recent terms have been unanimous. If we add those decisions in which only a single justice dissented, we find a majority of cases in recent terms have been either unanimous or nearly unanimous. Why does this happen? How can a court that is so polarized on many of the most foundational legal and constitutional questions come together with such regularity? This is the question explored by political scientists Pamela C. Corley, Amy Steigerwalt, and Artemus Ward in The Puzzle of UnanimityConsensus on the United States Supreme Court.

    The answer they provide to this motivating question is intuitively persuasive, if perhaps rather anticlimactic. Their answer, in a nutshell: it is complicated. Explaining the prevalence of unanimous and near-unanimous decisions requires attention to numerous factors—the ideology of the justices, strategic considerations, and constraints of law and legal norms, among them—with certain factors playing more or less of a role in different circumstances. “Rather than single out a specific group of factors as the primary explanation for consensus, we argue that various potential influences all operate in each case and many times, in complex interactive fashion” (p. 6). (more…)

    Weekly Faculty in the News, 1/30/14

    by  • January 30, 2014 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 1/23/14 to 1/30/14.

    1/27 – Dean Harold Krent was interviewed for a segment on CLTV’s Politics Tonight about the President’s executive authority.

    1/27 – Professor Richard Wright was quoted in a Bloomberg BNA Criminal Law Reporter article on causation in two current US Supreme Court cases, Burrage v. United States and Paroline v. United States (“Supreme Court Adopts General Rule For Causation Required by Criminal Statutes,” subscription required).

    1/28 – Professor Mark Rosen appeared in an ABC7 video and article on Illinois’s pension plan reform legislation (“Ill. labor unions sue over plan to cut pensions”).

    1/29 – Chicago-Kent’s Documentary Film Series on Race, created by Professor Bernadette Atuahene to foster meaningful discussions about race, announced three new films that will be shown on campus this semester—A Class Apart (Feb. 20), The House We Live In (March 26), and Raising Our Voices (April 22). Check back on this blog for more information in the near future.

    1/29 – Dean Harold Krent appeared in an Al Jazeera America video to discuss capital punishment (“States consider alternatives as lethal injection supplies dwindle”).


    1/28 – Professor Sheldon Nahmod wrote about his new video outlining section 1983 basics at his blog, Nahmod Law.

    For more information, contact the Office of Public Affairs at IIT Chicago-Kent.

    The Fight for the Future, Now in Print

    by  • January 29, 2014 • Faculty in the News, Scholarship • 0 Comments

    lee fight for the futureProfessor Ed Lee’s latest book, The Fight for the Future: How People Defeated Hollywood and Saved the Internet—For Now, is now available as a paperback. The Fight for the Future was originally self-published as an e-book in September 2013; the self-published print version is now being sold on Amazon.com and Lulu.com.

    The book explains how a grassroots movement involving millions of people was able to defeat money, politicians, Hollywood, and the copyright lobby, all in the name of a “free and open Internet.” In particular, Prof. Lee describes the ways in which people used Facebook, Twitter, and other social media to organize and launch protests against SOPA and ACTA, two controversial copyright proposals in the United States and European Union that many feared would lead to Internet censorship. The protests included the infamous Wikipedia blackout of January 18, 2012, and mass demonstrations on the streets of over 250 cities in all 27 countries of the European Union.

    For more information, visit the book website here.

    Constitutional First Principles on Display: A Look Back at Oral Arguments in NLRB v. Noel Canning

    by  • January 28, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]

    Last week’s Supreme Court oral arguments on the President’s recess appointment power was absolutely fascinating. National Labor Relations Board v. Noel Canning might seem on the surface a rather dry, technical case. But it has potentially dramatic implications. (Here is my colleague Carolyn Shapiro’s excellent summary of the case and its possible implications.) And, as the oral arguments showed so well, the case puts on fine display some of the most fundamental of questions relating to constitutional interpretation. These questions about the relationship between text, history, and established practices often lurk in the background when the Supreme Court considers major constitutional issues, but in this case they are uniquely foregrounded.

    Now, thanks to the wonder that is Oyez, we can easily listen to audio of the oral argument. Here are some of the highlights of this highly engaging session in the Supreme Court. (For a more comprehensive overview of the oral arguments, you can listen to the complete audio here or take a look at the always terrific “plain English” summary prepared by Amy Howe over at SCOTUSBlog.)

    The action was lively right from the start of Solicitor General Donald Verilli’s argument. The first topic was whether a ruling striking down the Obama Administration’s use of the recess appointment power would require revisiting all the decisions made by recess appointees, including judges. Justice Scalia, after weighing in on this point (“You don’t really think we’re going to go back and rip out every decision made.”), turned the discussion to the question of constitutional interpretation. He laid out what he characterized as a “stark question”: “What do you do when there is a practice that … flatly contradicts a clear text of the Constitution? Which … of the two prevails?” Listen to the exchange here: (more…)

    Schmidt Named Director of ISCOTUS

    by  • January 24, 2014 • Faculty in the News • 0 Comments

    [Via IIT Chicago-Kent News]

    Schmidt_Christopher_250pxIIT Chicago-Kent Professor Christopher W. Schmidt has been named director of the law school’s Institute on the Supreme Court of the United States (ISCOTUS). Professor Schmidt succeeds ISCOTUS founding director Carolyn E. Shapiro, who was recently appointed Illinois Solicitor General.

    Established in 2011, ISCOTUS provides information, educational resources, and scholarship on the nation’s highest court. The Institute on the Supreme Court of the United States combines the law school’s core strengths: cutting-edge legal scholarship and technological innovation. The institute comprises three major components: the ISCOTUS Academic Center; the Oyez Project and ISCOTUSnow; and the Civic Education Project.

    A member of the IIT Chicago-Kent faculty since 2008, Professor Schmidt teaches in the areas of constitutional law, legal history, comparative constitutional law, and sports law. He has written about the political and intellectual context surrounding the U.S. Supreme Court’s landmark decision in Brown v. Board of Education, the Tea Party as a constitutional movement, the Supreme Court’s recent decision in the health care case, and the rise of free agency in Major League Baseball. He is currently writing a book on the legal history of the student lunch counter sit-in movement of 1960.

    Professor Schmidt is also a faculty fellow at the American Bar Foundation where he serves as the editor of Law & Social Inquiry. Professor Schmidt has received fellowships from the American Society for Legal History, the Miller Center of Public Affairs at the University of Virginia, and the Center for American Political Studies at Harvard. He is the recipient of the 2014 Association of American Law Schools’ Scholarly Papers Competition for his paper “Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement.”

    Professor Schmidt earned a J.D. from Harvard Law School, a Ph.D. in the history of American civilization and an M.A. in history from Harvard University, and a B.A. from Dartmouth College. While in law school, he served as executive articles editor for the Harvard Civil Rights–Civil Liberties Law Review.

    For more information, contact Gwendolyn Osborne, Director of Public Affairs, (312) 906-5251.

    Weekly Faculty in the News, 1/23/14

    by  • January 23, 2014 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 1/16/14 to 1/23/14.

    1/17 – The Chicago Daily Law Bulletin ran a feature on Chicago-Kent’s new Praxis Program, which aims to provide students with practical, experiential learning that will prepare them for the law profession (“Training ‘client-ready’ students at Chicago-Kent,” behind paywall). According to the article, the program is “named for the Latin word that distinguishes practice from theory” and “will place a framework around 25 pre-existing courses that train students in a list of core competencies, such as interviewing clients, networking and understanding the new roles of technology in the law.” Dean Harold Krent and Professors Sarah Harding and Kathy Baker were featured in the article.

    1/22 – In an interview on WDCB Public Radio, Dean Harold Krent discussed the US Supreme Court’s landmark decision in Roe v. Wade, now 41 years old (“Roe v Wade Changed Public Perception of Supreme Court”). Listen to the interview below.


    1/20 – Professor Sheldon Nahmod wrote about a new Supreme Court case at his blog, Nahmod Law (Cert Granted in New Public Employee Free Speech Case: Lane v. Franks).

    For more information, contact the Office of Public Affairs at IIT Chicago-Kent.

    Koch Featured on Bioethics Blog

    by  • January 21, 2014 • Faculty Commentary • 0 Comments

    For the last few years, Professor Valerie Gutmann Koch has worked as Special Advisor to the New York State Task Force on Life & the Law, the state’s bioethics commission. The Task Force has recently released a report offering recommendations for research with human subjects who lack consent capacity. Last week, Koch—along with Susie A. Han, deputy director and principal policy analyst to the Task Force—detailed the contents of the report on a blog run by The Hastings Center, an independent bioethics research institute. Read an excerpt below:

    The New York State Task Force on Life and the Law released its Report and Recommendations for Research with Human Subjects Who Lack Consent Capacity today, which analyzes the ethical and legal implications of involving cognitively impaired adults to participate in human subjects research (HSR). The report provides recommendations and guidance to institutional review boards, researchers, and legal authorized representatives to ensure the ethical conduct of research subject to New York State oversight involving adults who lack the capacity to provide  consent as a result of dementia, developmental disabilities, or other conditions.

    Although New York State law provides mechanisms for ensuring voluntary informed consent for participants and IRB review, it does not provide any oversight of research involving adults who lack consent capacity. Similarly, federal regulations do not provide safeguards or special protections for research involving this vulnerable population, despite calls to do so.

    Without safeguards that are adequate and robust but not overly burdensome, the conduct of ethical research with this population is ethically and legally challenging. While some institutions and investigators are conducting research with this group without guidance—risking exploitation of this vulnerable population—others are taking an extremely conservative approach and are excluding these individuals from research. Excluding them could mean a dearth of important research into the broad range of diseases that impair cognition.

    To address the gap in oversight, the Task Force drafted a set of legal and ethical guidance regarding the conduct of research in New York State involving individuals who lack consent capacity. An underlying goal of the work is to ensure that research protocols are available to all individuals so that they may experience the benefits of research and share its risks and burdens like people who are not cognitively impaired while also ensuring the appropriate level of protections.

    To see a full list of the Task Force’s recommendations, continue reading here.

    Weekly Faculty in the News, 1/16/14

    by  • January 16, 2014 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 1/9/14 to 1/16/14.

    1/12 – Dean Harold Krent was interviewed on Fox 32 News about Illinois pension reform. Watch the video here.

    1/13 – The Chicago Daily Law Bulletin ran a headline on Professor Nancy Marder, who was recently inducted into the National Center for State Courts’ Warren E. Burger Society (“Marder joins Warren E. Burger Society,” behind paywall). Named after late US Supreme Court Justice Warren E. Burger, “the society was formed by the NCSC in 1996 to honor individuals who have volunteered their time and support to the NCSC in an exceptional manner.”

    1/14 – Illinois Attorney General Lisa Madigan named Professor Carolyn Shapiro as the state’s new Solicitor General. Read the official Chicago-Kent press release here. The news was also featured in the Chicago Daily Law Bulletin (“Top appeals lawyer goes to Jenner & Block”).

    Other news:

    1/14 – Professor Todd Haugh was featured on the Sentencing Law and Policy blog in a post on the US Sentencing Commission’s proposal to reduce all federal drug sentences. Haugh writes of the proposal: “First off, I agree wholeheartedly that this is a very important vote and a ‘really big deal.’ But the reason I feel that way is not necessarily because it lowers penalties for drug trafficking offenders. While I think the Commission is right to make the proposal and I certainly support it—drug penalties have been too harsh for too long—what’s more important to me than the specifics of the proposal is the willingness of the Commission to make it at all.”

    Read the rest of his comments here.

    For more information, contact the Office of Public Affairs at IIT Chicago-Kent.