• Perritt Presents at National Association of Attorneys General Meeting

    by  • March 3, 2015 • 0 Comments

    From February 23-25, the National Association of Attorneys General (NAAG) held its annual Winter Meeting in Washington, D.C., bringing together attorneys general, federal officials, and other professionals to discuss current legal issues. Professor Henry H. Perritt, Jr., spoke at the meeting in a panel on unmanned aircraft systems (“drones”) and the challenges that arise in regulating them. See a video of Prof. Perritt’s presentation above.

    In his presentation, Prof. Perritt urged lawmakers to resist the reflex to rush in and regulate drones with excessive restrictions—especially smaller “microdrones,” which pose little threat to safety or privacy but which are integral to the development of the technology. He commended the FAA’s recent notice of proposed rulemaking, which addresses some of the risks drones pose while leaving sufficient room for markets to drive technological innovation. In this proposal, regulations are tailored to reality, encouraging a culture of compliance and law-abiding autonomy appropriate to the technology. Contrary to a common opinion, Perritt argued that the law serves best when it follows technology in this manner, waiting to see how that technology plays out in the real world.

    Prof. Perritt has written extensively on drones for numerous law and trade publications. See more of his scholarship here.

    Notable speakers at the NAAG Winter Meeting included FTC Chairwoman Edith Ramirez, FBI Director James Comey, and US Vice President Joe Biden.

    The Conservative Justices, the Constitution, and the First Amendment

    by  • February 24, 2015 • 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…)

    Brown Delivers Keynote at IU Symposium

    by  • February 19, 2015 • 0 Comments

    On February 12, the Indiana International and Comparative Law Review (IICLR) hosted its annual symposium at Indiana University’s McKinney School of Law, focusing on current trends in international criminal law. Professor Bartram Brown delivered the keynote address for this year’s main topic—“Is 2015 the Beginning of the End for the ICC and Guantanamo Bay, or a Turning Point for the Law and Practice of International Criminal Law?”

    Click here for a full schedule of the symposium, which featured panels on the Rome Statute of the International Criminal Court and on U.S. military commissions at Guantanamo Bay.

    According to its website, IICLR “is a student-edited law Journal devoted to the study and analysis of current international legal issues and events. Published continuously since 1991, the Review provides a specialized and unique format for students to take broad legal topics and shed an international and/or comparative light onto them.” The scholarship presented at the symposium is later published in a special symposium issue of the IICLR.

    Martin Luther King, Jr. and the Law

    by  • January 16, 2015 • 0 Comments

    Martin Luther King, Jr. Lincoln Memorial

    Martin Luther King, Jr. at the Lincoln Memorial, August 28, 1963 | Wikimedia Commons

    Schmidt_Chris thumb By Christopher Schmidt


    Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

    King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

    Law as an Obstacle to Racial Justice

    Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

    Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

    King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

    A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”
    (more…)

    Buccafusco Coauthors New Book on Happiness

    by  • January 12, 2015 • 0 Comments

    Happiness and the Law, a new book by Professor Christopher Buccafusco and colleagues John Bronsteen (Loyola University Chicago) and Jonathan Masur (University of Chicago), was published by the University of Chicago Press in December. Below, read an excerpt from Jack Silverstein’s Chicago Daily Law Bulletin profile on the authors and the project (“The pursuit of (studying) happiness”):

    You are a criminal defense attorney with a client weighing two options: Accept a plea deal and an automatic five years in prison or go to trial and risk receiving a sentence of 20 years. Your client decides to go to trial.

    Is the client wrong? According to three Illinois law professors and coauthors of a new book examining the impact of laws on happiness, the answer is no.

    “Our research shows that 20 years in prison is not nearly four times as bad as five years,” said Jonathan Masur, a professor at University of Chicago Law School.

    That is among the conclusions in the new book “Happiness and the Law,” written by Masur, John Bronsteen of Loyola University Chicago School of Law and Christopher J. Buccafusco of IIT Chicago-Kent College of Law.

    The book … is the result of six years of work between the three professors as they set out to create metrics for evaluating laws based on happiness.

    “If you think about why we have law, at all, the basic core reason is to make people’s lives better,” Bronsteen said. “If you want to think about how law affects people and how to make law better, you need to think about what it means to improve people’s lives.”

    To study happiness, the professors combed pre-existing research such as the General Social Survey, a survey founded in 1972 that tracks people’s happiness and quality of life over many years by asking them to respond to questions about themselves.

    “Our contribution in the book, then, is basically to take these findings and use them to challenge and update more traditional ways of thinking about legal problems—economically and philosophically,” Buccafusco said.

    The survey is an example of hedonic psychology, the attempt to quantify happiness.

    “It’s the notion that we can detect and discover what we would call ‘subjective well-being,’” he said.

    Read the full profile here.

    New Andrews Report Examines Webcams and Privacy

    by  • December 23, 2014 • 0 Comments

    [Reposted from IIT Chicago-Kent News]


    Webcams have transformed entertainment, medicine, home security, and many other fields. But they have also been used to spy on people in shocking ways. Hundreds of thousands of people have been the targets of surreptitious remote webcam activation, yet there has been no meaningful legislative response to the problem.

    digital-peepholes-report-cover

    The Digital Peepholes report is available for download at www.ckprivacy.org.

    In Digital Peepholes, a new report from IIT Chicago-Kent College of Law, Distinguished Professor Lori Andrews and attorneys Michael Holloway and Dan Massoglia document the risk and propose policy solutions.The two-year investigation undertaken by faculty, students, and legal fellows at IIT Chicago-Kent College of Law uncovered the following:

    • Everyone is vulnerable to being spied on through their webcams.
    • The FBI has asked that federal laws be changed so that law enforcement can use people’s webcams to gather evidence about what crimes people may be committing through or near their computers.
    • One company alone installed remote activation technology on 400,000 rental computers and photographed its customers having sex, gambling online, and searching the Internet.
    • Existing laws do not protect people sufficiently.

    Digital Peepholes offers policy recommendations to protect people’s rights on the web. The comprehensive policy paper is available without charge at www.ckprivacy.org and the authors are available for comment.

    IIT Chicago-Kent has been at the forefront of issues arising at the convergence of technology and the law since the creation of the mainframe. The CK Privacy program at IIT Chicago-Kent provides an opportunity for students, faculty members, policymakers, and the public to assess the ways in which technologies present new challenges to privacy and data protection, as well as to develop technical and legal ways to better ensure privacy and improve data protection.

    For more information, please contact:

    Chicago-Kent Research Paper Series No. 6.8

    by  • December 16, 2014 • 0 Comments

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

    The latest edition (6.8) of the RPS was distributed this week. This edition includes the following articles:

    • Christopher Buccafusco, Well-Being and Public Policy (with J. Bronsteen and J. Masur), Oxford Handbook of Law & Economics (forthcoming).

    • Harold Krent, Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals (with S. Morris), working paper.

    • Martin Malin, Education Reform and Labor-Management Cooperation: What Role for the Law? 45 University of Toledo Law Review 527 (2014).

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

    Atuahene on Mandela

    by  • December 5, 2014 • 0 Comments

    On the first anniversary of Nelson Mandela’s death, Professor Bernadette Atuahene examines the leader’s legacy in a guest post at The Faculty Lounge blog. Read an excerpt below:

    Today is the first anniversary of Nelson Mandela’s death. He became an international icon because he chose reconciliation and forgiveness over war and vengeance. There is no doubt that Mandela was a great man and a great leader. But, now that we have mourned, it is time to take a critical look at his legacy. When we scratch beneath the surface, we find that the political bargain that he brokered to bring an end to apartheid while avoiding massive bloodletting and economic disintegration is now falling apart.

    Due to massive colonial and apartheid era land theft, when apartheid ended in 1994, 87% of the land was owned by whites although they constituted less than 10% of the population. The bargain allowed whites got to keep their land despite how it was acquired. In exchange, blacks got the promise of land reform. This year, South Africa celebrates 20 years of democracy and the state has transferred only about 10% of the land from whites back to blacks. Whites have secure land rights while the promise made to blacks has gone unfulfilled. Needless to say, many blacks are losing their patience.

    Read the rest of this post at The Faculty Lounge.