• Archive for June, 2014

    Schmidt on Hobby Lobby Decision

    by  • June 30, 2014 • Faculty Commentary, Multimedia • 0 Comments

    On June 30, 2014, the U.S. Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores, Inc., ruling that the Affordable Care Act’s birth control mandate does not require closely held, for-profit companies to provide contraceptive coverage to its employees if the companies’ owners voice religious objections.

    In this video, Professor and ISCOTUS director Christopher Schmidt discusses the specifics of the case, the opinion, and the dissent, as well as the implications the decision could have for the future.

    Find the video on YouTube here.

    Breyer and Scalia’s Debate in NLRB v. Noel Canning

    by  • June 27, 2014 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [reposted from ISCOTUSnow]

    Case: National Labor Relations Board v. Noel Canning

    Although Justices Breyer and Scalia ended up on the same side in yesterday’s landmark decision on the President’s recess appointment power, they offered starkly opposing views on the question of whether the past practice of the executive can resolve this constitutional question.

    In his Opinion of the Court, Justice Breyer emphasizes early in the opinion that “in interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice.” For support for this, he offers lengthy quotations from McCulloch v Maryland (1819) and from an 1819 letter written from James Madison to Spencer Roane in which he writes that it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter… and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” From these and other sources, Justice Breyer concludes: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” With regard to the question before the Court, he writes: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”

    Justice Scalia accepts that basic premise that established practice can inform the Court’s interpretation of ambiguous constitutional provisions. But he insists upon a higher threshold for what actually constitutes established practice. He writes: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision” (emphasis added). The recess appointment practice challenged in this case does not meet this incredibly demanding threshold, however. “Plainly, then, a self aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.”

    Justice Scalia accuses Justice Breyer of “cast[ing] aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.” Finding historical practice fails to resolve the constitutional question, he turns to his preferred grounds of constitutional interpretation of “text, structure, and original understanding.” The two Justices end up in the same place on this particular constitutional dispute, although they chart quite different paths getting there.

    Weekly Faculty in the News, 6/26/14

    by  • June 26, 2014 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 6/19/14 to 6/26/14.


    6/23Adrian Walters was mentioned in a colleague’s blog post on a new paper they have co-authored, titled Termination-on-Bankruptcy Provisions: Some Proposed Language. The paper was published in the most recent issue of Business Law Today. Download it or read it online here.

    6/24Dan Tarlock’s ISCOTUS video commentary on Utility Air Regulatory Group v. EPA appeared in SCOTUSblog’s Tuesday round-up.

    6/24 – The Oyez Project and its $0.99 app Pocket Justice were featured in a Lawyerist post on all of the available legal apps for Android.

    6/24David Schwartz was mentioned in a Lexology post on a new paper he has co-authored, titled Understanding the Realities of Modern Patent Litigation (forthcoming in the Texas Law Review).

    6/25 – At his blog The Walters Way, Adrian Walters engages in a “blog hop” and tackles the question that plagues all bloggers—why bother?

    6/26 – SCOTUSblog’s evening round-up mentioned Edward Lee’s ISCOTUS video commentary on ABC v. Aereo and Douglas Godfrey’s video commentary on Riley v. California.

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

    Godfrey on Cell Phone Search & Seizure Decision

    by  • June 26, 2014 • Faculty Commentary, Multimedia • 0 Comments

    On June 25, the U.S. Supreme Court issued a single decision in two cases on cell phone search and seizure—Riley v. California and U.S. v. Wurie. In a major victory for digital privacy rights, the Court ruled that police officers must obtain a warrant to access information on the cell phone of an arrestee.

    In this ISCOTUS video, Professor Douglas Godfrey discusses the case and its implications for the future.

    Find the video on YouTube here.


    Lee on ABC v. Aereo

    by  • June 25, 2014 • Faculty Commentary, Multimedia • 0 Comments

    On June 25, the U.S. Supreme Court handed down its opinion in ABC v. Aereo, an important copyright case featuring the broadcast TV giant and a small Internet startup. The Court ruled against Aereo, claiming that Aereo’s services—which allowed users to watch major network TV programs over the Internet—had infringed upon the rights of the programs’ copyright holders.

    In this ISCOTUS video, Professor Edward Lee discusses the case and what the decision means for Aereo’s and other tech companies’ futures.

    For more, see Prof. Lee’s “Inside the Case” feature on Aereo.

    Find the video on YouTube here.

    Tarlock on EPA Cases

    by  • June 24, 2014 • Faculty Commentary, Multimedia • 0 Comments

    Yesterday, the U.S. Supreme Court issued its opinion in Utility Air Regulatory Group v. EPA—a consolidation of cases brought by a number of states and industries opposed to the EPA’s regulations on greenhouse gas emissions.

    In this ISCOTUS video, Professor A. Dan Tarlock, an internationally-recognized authority on environmental law issues, explains the details of the case and the implications of the decision.

    Find the video on YouTube here.

    Schmidt Wins Baseball Research Award

    by  • June 23, 2014 • Scholarship • 0 Comments

    SABRAs a legal history scholar, IIT Chicago-Kent Professor Christopher Schmidt touches on a wide variety of subjects in his research—including the captivating world of professional baseball. The Society for American Baseball Research (SABR) recently recognized Professor Schmidt’s outstanding work on America’s favorite pastime, granting him the 2014 McFarland-SABR Baseball Research Award for his article Explaining the Baseball Revolution, 45 Arizona State L.J. (2013). The award “honors the authors of the best articles on baseball history or biography completed or published during the preceding calendar year.”

    In his article, Schmidt explores the “baseball revolution” that occurred between 1966 and 1976, when Major League Baseball players won an unprecedented redistribution of control and revenues from club owners. This revolution ushered in the era of “free agency,” allowing players to hop between teams in search of better contracts and bargaining rights. As Schmidt points out, baseball reform did not come through explicitly legal channels; the claim in Flood v. Kuhn (1972), a U.S. Supreme Court case in which players argued that  baseball’s “reserve” system denied them fundamental rights, was not successful in court. However, by reframing the struggle for money and power as a fight for individual freedom, the case set in motion the events that eventually led to greater players’ rights. Through these and a host of other factors, Schmidt shows how the baseball revolution “offers a valuable case study of the complex interrelation between legal claims, legal institutions, and movement mobilization.”

    The SABR selection committee gave these comments about Schmidt’s paper:

    “Meticulously researched and argued…. Well researched, well written, while disparaging the legal events surrounding Flood, he shows how they ‘set the table’ for change.”

    According to the SABR website, Schmidt and two other award winners will be honored at the 44th annual SABR convention, which will take place July 30-August 3, 2014, at the Royal Sonesta Houston in Houston, Texas.

    To see more of Professor Schmidt’s research on baseball and other topics, visit his Selected Works page.

    Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

    by  • June 20, 2014 • Faculty Commentary, Scholarship • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]

    Lane v. Franks: New Public Employee Free Speech Decision

    The Supreme Court, on June 19, 2014, handed down an important public employee free speech decision in Lane v. Franks (PDF), No. 13-483. The Court unanimously held, in an opinion by Justice Sotomayor, that a public employee who testifies truthfully at trial, pursuant to a subpoena, is protected by the First Amendment from employer discipline, at least where the testimony is not pursuant to his/her duties as an employee. However, the Court also ruled that the employee’s superior, who fired him, was not liable in damages because of qualified immunity.

    Justice Thomas concurred, joined by Justices Scalia and Alito, emphasizing that the Court’s ruling applied only to testimony that was not pursuant to a public employee’s official duties.

    Previous Posts on Lane v. Franks

    I previously blogged about this case when certiorari was granted, see post of January 20, 2014; when (full disclosure here) I co-authored a Law Professors’ Amicus Brief in Support of Petitioner, see post of March 13, 2014; and when I did a short video on the case, see post of April 25, 2014. Those posts set out the background and facts.

    The Opinion: The First Amendment Merits

    Justice Sotomayor initially set out the basics of public employee free speech jurisprudence stemming from Pickering v. Bd. of Education and Garcetti v. Ceballos. She observed that where a public employee is disciplined for his or her speech and asserts First Amendment protection, the first question was whether the speech engaged in–here, Lane’s testimony at two federal criminal trials– was pursuant to the employee’s job duties. In this case, it was clear– even undisputed–that Lane’s testimony,  pursuant to subpoena, at trial, was not part of his ordinary job duties. Moreover, it was every citizen’s duty under subpoena to testify truthfully at trial. The Court emphatically rejected the misguided position of the Eleventh Circuit in this case that Lane’s speech was not that of a citizen but that of an employee because he testified about information arising out of his employment.

    The second question–whether the speech dealt with a matter of public concern–was also easy to answer: Lane’s testimony dealt with the malfeasance of a state legislator in connection with the misuse of public funds. According to the Court, this was a classic case of whistle-blowing about public corruption. This was surely a matter of public concern. Consequently, the First Amendment was implicated here.

    Finally, as to the Pickering balancing test, the Court observed that the various defendants never seriously argued that the balance should tip in favor of allowing Lane to be disciplined. There was no countervailing governmental interest whatever that would justify his firing.

    Consequently, the First Amendment protected Lane from discipline for his truthful testimony. (more…)

    Lee Chosen for Spark Camp at Harvard

    by  • June 19, 2014 • Faculty in the News • 0 Comments

    [Reposted from IIT Chicago-Kent News]

    IIT Chicago-Kent Professor Edward Lee, director of the Program in Intellectual Property Law, has been selected to attend Spark Camp at Harvard University this weekend. The four-day event, “Visionaries, Leaders and Managers,” will bring together more than 75 “campers” to explore ideas on corporate culture and how organizations should operate.

    “Spark Camp is a weekend of intimate conversations, idea development and problem-solving, with a focus on a specific theme involving the future of a better society,” according to organizers. “Our focus is on convening exactly the right people around a particular topic that causes action in the field and offers up forward-thinking, tangible outputs that affect real change in our society…”

    This is the sixth Spark Camp convened since 2011. Earlier events have focused on real-time information, data, money, design and storytelling. The program is co-sponsored by the Bill and Melinda Gates Foundation, Google, the Knight Foundation, Webb Media Group and Open Society Foundations.

    Professor Lee, a cum laude graduate of Harvard Law School, is pleased to be returning to Cambridge to attend Spark Camp. “There is an impressive diversity of talent among this year’s campers,” he said.

    They include Edventure chair Esther Dyson; digital publisher Jennifer 8 Lee; Paola Antonelli, a senior curator of architecture and design at MoMA; ESPN executive Rob King; and Mary Beth Goodman, an IIT Chicago-Kent alumna and senior advisor on anti-corruption and governance with the U.S. State Department.

    Spark campers are nominated to participate, and Professor Lee speculates he was selected as a result of his work related to Internet freedom. Professor Lee, the author of The Fight for the Future: How People Defeated Hollywood and Saved the Internet-For Now, is creating a nonprofit organization dedicated to Internet freedom.

    “I hope to get a ‘spark’ of creativity and ideas for my research and nonprofit organization,” said Professor Lee.

    Founded in 1888, IIT Chicago-Kent College of Law is the law school of Illinois Institute of Technology, a private, Ph.D.-granting institution with programs in engineering, architecture, law, business, human sciences, applied technology, science and design.

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