• Faculty Commentary

    Commentary on scholarship, current events, and other news by Chicago-Kent faculty.

    From November 8 to December 19: The Electoral College Evaluates Trump

    by  • December 2, 2016 • Faculty Commentary • 0 Comments

    Shapiro_Carolyn_portraitOriginally posted December 1, 2016 on The Huffington Post

    by Carolyn Shapiro


    The presidential election is not over. The election on November 8 was the mechanism for each state to select its slate of electors, who will not themselves elect the president and vice-president until December 19. That six-week gap has never been more crucial. We can all observe Donald Trump’s conduct during that time, but by the time the members of the Electoral College are called upon to exercise their judgment, they will, as Alexander Hamilton explained, “possess the information and discernment necessary to” evaluate him in ways that the public at large could not. And if the electors take the Constitution and the wellbeing of the country seriously – if they are conscientious – they will watch carefully.

    Already, some electors, calling themselves the Hamilton Electors, are pushing, not to elect Hillary Clinton (despite her having received the majority of the popular vote by at least 2.5 million), but for a bipartisan effort to elect a compromise candidate, probably a Republican, to prevent Trump from becoming President. And with good reason. Trump is poised to take an oath to the Constitution and to violate it at the very same time. The Constitution prohibits government officials from receiving gifts or compensation (“emoluments” in the language of the Constitution) from foreign governments. Yet Trump is eager to use his new position to increase his personal wealth. His hotel in Washington, for example, has hired a “director of diplomatic sales,” and foreign diplomats are lining up to stay there to curry favor with him. And the New York Times has detailed numerous possible conflicts of interest around the globe, including ways that Trump’s business could benefit from favorable acts by foreign governments. As Richard Painter, former ethics counsel to President George W. Bush, explained on CNN, the electors will violate their own duty if they vote for Trump without assurances that he will not violate his oath even as he takes it.

    Trump has no regard for the truth, for preserving our government and civic institutions, or for promoting national unity, even at a time when he has every reason to be gracious. He claimed on Sunday night, in the form of a Twitter storm, that he would have won the popular vote except that “millions of people voted illegally.” This is entirely false. Let us be clear about what Trump is doing here: in response to formal, legal recount efforts (which will ensure the accuracy of the vote count but are not expected to change the result), he is making utterly baseless accusations – accusations that serve only to undermine confidence in American democratic institutions. And the insinuation that these illegal voters are undocumented immigrants, combined with claims he made during the election about voter fraud in cities and “other communities” serve only to stoke racial division and suspicion.

    This latest temper tantrum, along with other actions, belies Trump’s claims that he wishes to be “president for all Americans” and – when pressed – that he denounces white supremacy. He has appointed the incendiary Steve Bannon as his chief strategist, a man who, by his own account, provided “the platform for the alt-right,” part of the white nationalist movement. And he has failed to personally acknowledge – much less denounce – the more than 800 documented incidents of harassment and hate crimes in the first ten days after the election, including many in which the perpetrators expressly invoked his name. In light of all this, Trump’s recent claim that he does not know why his campaign and election have “energized” white nationalists is either an outright lie or remarkable ignorance.

    For any elector to reject the popular vote in their state is highly unusual, and for enough of them to do so to affect the result would be unprecedented. It certainly would itself be divisive. Some of Trump’s supporters warned of violence if Trump lost what they believed might be a “rigged” election; they might make good on those threats if he is not installed in the White House. But now is a seminal moment. The electors should carefully evaluate whether Trump’s post-November 8 conduct is worthy of their votes. And if not, a bipartisan majority should choose a responsible Republican instead of Trump. For electors of both parties, such an action would elevate love of country over party and political advantage. It would be the most patriotic of acts, it would honor the Constitution, and it would remind us all that – like it or not – we are in this together.

    Prof. Shapiro Discusses the Upcoming Supreme Court Term

    by  • September 22, 2016 • Faculty Commentary, Multimedia • 0 Comments

    Yesterday, Professor Carolyn Shapiro spoke on a panel about the upcoming Supreme Court term at the National Press Club in Washington, D.C. The panel was sponsored by the American Constitution Society. Information about the panelists and a video are available on the ACS website.

    Professor Shapiro is co-director of Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS), and she recently returned to Chicago-Kent full time after two-and-a-half years serving as Illinois Solicitor General.

    Justice Scalia and the Transformation of First Amendment Jurisprudence

    by  • March 1, 2016 • Faculty Commentary • 0 Comments

    By Steven Heyman, Professor of Law [reposted from ISCOTUS]


    Antonin Scalia served on the federal bench for over three decades, first on the U.S. Court of Appeals for the District of Columbia Circuit (1982-86) and then on the U.S. Supreme Court (1986-2016).  This period coincided with a remarkable shift in our nation’s ongoing debate over the meaning of the First Amendment.  Traditionally, liberals defended a broad understanding of the constitutional freedoms of speech, press, and association, while conservatives believed that those freedoms were subject to legal regulation in the interests of social order, public morality, and national security.  During the 1980s, however, some scholars and activists on the left started to propose restrictions on racist hate speech as well as violent and degrading pornography, on the ground that these forms of expression undermine the equality of women and minorities.  In response, some conservatives began to develop a more libertarian position, which appealed to the First Amendment as a bulwark against what they regarded as the dangers of political correctness.  In recent years, this conservative-libertarian approach has become one of the most important currents in First Amendment law.  The federal courts have increasingly used this approach to strike down regulations that seek to promote liberal or progressive values.

    Justice Scalia played a leading role in this transformation of First Amendment jurisprudence.  In R.A.V. v. City of St. Paul (1992), a teenager who burned a cross in an African-American family’s yard was charged with violating a city ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that one knows or reasonably should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Although this ordinance seemed overly broad on its face, the Minnesota Supreme Court interpreted it in a narrow way to apply only to symbolic conduct that fell within the definition of “fighting words” or other categories of expression that have long been held unprotected by the First Amendment.  When interpreted in this way, the ordinance appeared to be constitutional, but the US Supreme Court struck it down.  In an opinion for five Justices, Scalia held that although the government may ban all fighting words, it may not ban only those fighting words that are based on race, religion, or gender, for this sort of “selectivity” raises the specter that the government is seeking to impose an ideological orthodoxy on citizens by punishing the expression of racist views. (more…)

    “Get Over It”: Nahmod on Scalia and SCOTUS

    by  • February 22, 2016 • Faculty Commentary • 0 Comments

    By Sheldon Nahmod [reposted from Nahmod Law] Twitter: @NahmodLaw.


    It is one of the worst Supreme Court decisions in history.

    No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

    I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

    I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

    And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

    All four of these decisions are morally repugnant, and several are even evil.

    No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

    (more…)

    NLRB Rules That Northwestern University Football Players Cannot Unionize

    by  • August 17, 2015 • Faculty Commentary • 0 Comments

    By César F. Rosado Marzán


    Today, the NLRB determined whether or not the Northwestern University football players could unionize. It decided that they could not. However, the NLRB’s decision did not hinge on the issue of whether or not the college athletes are employees under the NLRA, but on its determination that the Board would not foment stable industrial relations under the NLRA if it enabled the college athletes to unionize.

    Even if the NLRB was reasonable in determining that collective bargaining would not provide for stable industrial relations in college football, such determination could have been better reached by the parties themselves, and especially the college athletes. That’s the beauty of collective bargaining: it lets parties make those sorts of determinations without second-guessing by the state.

    According to the Board, collective bargaining in college football would require league-wide bargaining, including with those units with putative public sector employees who are beyond the reach of the NLRB’s jurisdiction—the college athletes who play for state schools. The arrangement of college football proved too complex for the NLRA’s model of collective bargaining, according to the NLRB. However, the Board reached this decision even when professional Canadian athletes in baseball and hockey do not fall under the NLRB’s jurisdiction; professional baseball and hockey are unionized.

    The Board limited its decision to the facts of the case. However, the decision will be used by the management bar to justify further instances of non-recognition of employees in non-standard forms of employment, e.g., graduate students, workers who are also clients and patients of their employers (as in mental health institutions), temporary employees, among others. About a quarter of U.S. workers work in such types of non-standard settings. Today a quarter of the U.S workforce has something new to struggle against.

    The response to such attempts of non-recognition will thus necessarily remain the good old-fashioned one: workers will have to fight for recognition despite the law, through their collective efforts. The maladies of asymmetrical market relationships that the NLRA attempts to remedy, namely industrial strife, will inevitably be pushed to the surface given today’s unfortunate NLRB decision.

    Kling Comments on Dennis Hastert Indictment

    by  • June 10, 2015 • Faculty Commentary, Faculty in the News • 0 Comments

    Professor Richard Kling has spoken with numerous news sources about the recent federal indictment and arraignment of former U.S. House Speaker Dennis Hastert. According to Prof. Kling, the former speaker will likely accept a plea deal to avoid the public spotlight of an extended trial. See below for a roundup of Prof. Kling’s media appearances:

    Video

    Audio

    Hastert pleads not guilty in hush money case,” WBEZ/NPR

    Elonis v. United States: Treading Carefully with Regard to Threats and Free Speech

    by  • June 5, 2015 • Faculty Commentary • 0 Comments

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]


    This Monday, June 1, 2015, the Supreme Court handed down its long-awaited decision in Elonis v. United States. In a 7-2 ruling by Chief Justice John G. Roberts, Jr., the Court narrowed the circumstances under which individuals can be convicted of making criminal threats under federal law when they post statements on social media like Facebook. At the same time, the Court showed a prudent inclination to tread cautiously in a difficult area.

    After Anthony Elonis’s wife left him, he began to write graphically violent rap lyrics and post them to his Facebook account. In several posts, he fantasized about murdering his estranged wife. Others contained violent thoughts about the workplace from which he had been fired, his former co-workers, and an FBI agent who had investigated the matter. In one post, he even talked about massacring a local kindergarten class.

    Elonis was tried and convicted in federal court of four counts of violating 18 U.S.C. § 875(c), a 1939 law that makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The trial judge instructed the jury that, under this statute, it is not necessary for the prosecution to prove that the defendant intended his statements to be threatening. Rather, it is enough to prove that the defendant reasonably should have known that other people would take his statements to be threats—a standard that is often referred to as negligence. (more…)

    Birdthistle on FIFA at the Volokh Conspiracy

    by  • June 3, 2015 • Faculty Commentary • 0 Comments

    In two new guest posts at the Washington Post’s Volokh Conspiracy blog, Professor William Birdthistle unpacks the United States’ recent indictment of FIFA on charges of racketeering, bribery, money laundering, and fraud. In the first post, “Americanized football” (May 27, 2015), Prof. Birdthistle pursues the immediate questions raised by the indictment:

    Why is the United States bringing these charges? Perhaps a secret competition was held amongst international prosecutors, and we won the bidding over Qatar and Russia? No, that would never happen. Countries like the United Kingdom, Germany, and Spain might be far more likely candidates to police corruption in the game they love so much. But if they struck at King Blatter and missed, they could suffer serious reprisals from an organization that has amply proved its unprincipled style of governance. The United States may be the only country in the world both powerful enough and indifferent to soccer enough to hunt down FIFA.

    Continue reading at The Volokh Conspiracy→

    In the second post, “Burst Blatter” (June 2, 2015), Prof. Birdthistle looks at FIFA President Sepp Blatter, who was not named in the indictment but who resigned from his post this week:

    The New York Times reported Monday that a $10 million bribe for the South African World Cup had been authorized by Jérôme Valcke, Sepp’s bro-hugging number two at FIFA. FIFA, in true gangland style, immediately identified a dead person as the true perp, but documents published Tuesday showed Valcke’s name on key correspondence.

    What exactly was Valcke’s authority? FIFA said that Valcke, as secretary general, “has authority to make transactions.” But organizational by-laws, even of nonprofits, don’t typically authorize officers simply “to make transactions” — such unlimited authority would invite embezzling officers to fire off billions to a Cayman account and then disappear. Surely that couldn’t happen at FIFA, could it? Credible organizations often either specify a dollar amount up to which the person has spending authority or require a board resolution authorizing the officer to make specific payments. So perhaps Valcke made the payments without authorization or made them with Blatter’s full knowledge.

    Continue reading at The Volokh Conspiracy→

    Know Your Constitution (8): What is State Action?

    by  • March 12, 2015 • Faculty Commentary • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]


    This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.

    Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.

    This post deals with the important concept of state action. Non-lawyers should understand that private persons cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

    The Basics

    The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

    This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

    (more…)

    The Conservative Justices, the Constitution, and the First Amendment

    by  • February 24, 2015 • Faculty Commentary, Scholarship • 0 Comments

    This post is based on The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014), which Professor Heyman recently presented as the Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at West Virginia University College of Law.

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]


    In recent years, a conservative majority of the Supreme Court has issued a raft of decisions that have cheered the right and dismayed the left. To name only a few, District of Columbia v. Heller (2008) declared that the Second Amendment guarantees an individual right to own firearms. Citizens United v. Federal Election Comm’n (2010) and McCutcheon v. Federal Election Comm’n (2014) struck down key limitations on the ability of corporations and wealthy individuals to dominate the political process. And Burwell v. Hobby Lobby (2014) held that, under the Religious Freedom Restoration Act, family-owned corporations have a right to religious liberty which permits them to deny contraceptive coverage to their female employees.

    Decisions like this clearly align with the political attitudes of the Justices. But I believe that these decisions also can be understood to reflect a deeper political and constitutional theory. To see this point, we must recognize that the conservative view of the Constitution is not monolithic, but includes two different strands. The first strand is a traditional conservative position which supports the government’s authority to enforce law and order and to promote traditional moral and social values. In contrast, the second strand is a libertarian position which emphasizes the need to protect individual freedom against government regulation. It is this second strand of conservative ideology that accounts for the decisions on gun ownership, campaign spending, and religious liberty that I have mentioned. This strand also underlies recent decisions that expand protection for property rights, cut back on affirmative action, and impose limits on the welfare state and the power of the federal government.

    As Citizens United and McCutcheon show, this conservative-libertarian view is also one of the most powerful currents in contemporary First Amendment jurisprudence. A leading case is American Booksellers Ass’n v. Hudnut (7th Cir. 1985), which struck down a feminist anti-pornography ordinance. Judge Frank H. Easterbrook ruled that the state may regulate sexually explicit material to protect traditional morality, but not to promote gender equality – a rationale that he condemned as a form of authoritarian “thought control.” Likewise, in R.A.V. v. City of St. Paul (1992), Justice Antonin Scalia treated a city’s ban on cross-burning as an impermissible effort to impose political correctness by punishing the expression of racist ideas. And in Boy Scouts of America v. Dale (2000), Chief Justice William H. Rehnquist ruled that the First Amendment right to freedom of association permitted the Scouts to deny membership to gay persons on moral grounds. In all of these cases – most of which were decided by a vote of five to four – conservative judges used the First Amendment to protect their conception of individual liberty against laws that sought to promote social values like dignity, equality, and community. (more…)