• Vogel Contributes to Lawfare

    by  • December 4, 2014 • 0 Comments

    Visiting Assistant Professor Ryan Vogel has authored a new post on Lawfare, a leading national security blog. The post analyzes a preliminary examination of U.S. detention policies in Afghanistan that has been advanced by the International Criminal Court’s prosecutor. Read an excerpt below:

    As Professors Ryan Goodman and David Bosco have both noted in excellent posts at Just Security and Foreign Policy, respectively, over the past seven years, the International Criminal Court’s (ICC) Prosecutor has quietly but persistently advanced a “preliminary examination” of the conflict in Afghanistan.  Although it has been clear that the United States was one of the subjects of this examination, the Prosecutor had avoided direct references to U.S. forces in public documents. This changed on Tuesday when, for the first time, the Prosecutor’s annual report alleged that “members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees,” which could amount to the war crimes of “cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.”

    Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

    But even if a case against U.S. forces for alleged detention-related abuses is not dismissed because it is insufficiently grave to meet the thresholds for the ICC to proceed, it also seems questionable for the ICC to pursue such a case for reasons of complementarity (i.e., the principle that the ICC is not to move forward when a State is genuinely able and willing to investigate and prosecute).  The United States has one of the most developed and effective military justice systems in the world, which has the demonstrated ability and willingness to hold its own accountable for violations of the law, including any violations in the context of detention operations.  Indeed, there have not been many issues more thoroughly investigated by the military and U.S. Government in the past decade than that of detainee treatment.  Ironically, the Prosecutor’s report even cites some of these very investigations as evidence of crimes – or worse, evidence of a criminal policy – rather than citing these reports as acknowledgement of accountability measures.

    Click here to read the rest of this post at Lawfare.

    New Buccafusco Article on Well-Being and Public Policy

    by  • November 28, 2014 • 0 Comments

    Professor Christopher Buccafusco and colleagues John Bronsteen (Loyola Chicago) and Jonathan S. Masur (U of Chicago) have authored a new article titled “Well-Being and Public Policy.” The article is forthcoming as a chapter in the Oxford Handbook of Law & Economics, edited by Francesco Parisi. Read an abstract below:

    Governments rely on certain basic economic metrics and tools to analyze prospective laws and policies and to monitor how well their countries are doing. For decades, critics of such economic measures have argued that they ignore important aspects of value that are not fully reflected by output or by willingness to pay (WTP). In recent years, one of the most important developments in social science has been the emergence of psychological research measuring subjective well-being (SWB) or “happiness.” Researchers have made great strides in replicating and validating their findings about happiness, and world leaders have called for this research to be used to supply SWB-based metrics and tools as alternatives to the existing economic ones. In response to these calls, early efforts have been made to use SWB research to create new social indicators. In this chapter, we discuss some of the efforts that have been made in this regard. We first briefly explain the way that SWB is measured and the way those measurements have been validated. We then explain our own contribution — well-being analysis (WBA) — which uses happiness data to analyze prospective policies more accurately than does cost-benefit analysis. Next, we cover the ways in which SWB data have been used to generate prices that can be used by traditional economic analysis. We then discuss attempts to revise cost-benefit analysis to deal with the limitations stemming from the fact that it uses wealth to assess the effects of policy on quality of life. Finally, we lay out the strides that have been made toward creating an SWB-based alternative to GDP.

    Download the paper on SSRN here.


    Andrews Presents on Privacy at CALL

    by  • November 25, 2014 • 0 Comments

    By Clare Willis, Chicago-Kent Research Librarian

    Lori Andrews presents at CALL

    Photo credit: Emily Barney

    On November 20, 2014, the Chicago Association of Law Libraries welcomed Prof. Lori Andrews as the speaker for their quarterly business meeting. Prof. Andrews spoke on “Privacy’s Dying Gasp and How Librarians Can Resuscitate It.” She started the talk by sharing her life-long appreciation for libraries, including the law library at Yale. She pointed out that online sources allow her to research things that could not have been found in a bricks and mortar library. But even though there is more information online, she added, it comes at the cost of the tracking and aggregating of private information online. Prof. Andrews gave several examples of how information posted online can be used against the person who shared it: in one instance, the consultancy firm Deloitte encouraged a group of life insurers to look to an applicant’s social network pages, especially for evidence of such personal characteristics as being an avid reader; eating fast food; commuting to work; and having friends who are skydivers, to determine if the applicant is a bad underwriting risk. When asked why an avid reader might be a risk, she speculated that the insurer might believe that avid readers have more sedentary lifestyles.

    Prof. Andrews explained that the information collected online goes to advertising and while she believed that most people would not mind a coupon, other advertisements can be more intrusive, especially those that use someone’s name and/or likeness. For example, two work colleagues could both “like” drugstore.com on Facebook and that affinity could produce a Facebook advertisement that tells their mutual Facebook friends that the two “like” a brand of personal lubricant.

    Prof. Andrews explained how social media can infringe on the right to a fair trial. In one example, she noted that criminal penalties may be enhanced if there is evidence that a defendant wore gang colors in a picture on social media. She pointed out that the Los Angeles Police Department considers plaid and black, otherwise benign patterns or colors, to be gang colors. She also noted that jurors find it difficult not to Google the facts of a case or tweet about being a juror. She told of a librarian who was charged with contempt of court for conducting her own online research into shaken baby syndrome when she was a juror in such a case.


    A Modest Proposal

    by  • November 12, 2014 • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [Reposted from ISCOTUSnow]

    Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

    While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.


    The Second Amendment and Section 1983: A Podcast

    by  • November 11, 2014 • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]

    As many of you may know, Chicago-Kent’s CLE department has presented my two-day Conference on Section 1983 for over thirty years. The next one is scheduled for April  16-17, 2015.

    As part of the most recent Conference in April 2014, I spoke in depth about the Second Amendment (Heller, McDonald and circuit case law) and its relation to section 1983.

    I am pleased to present the 45 minute podcast of that presentation and hope you find it of interest. It’s a very good way to understand the basics.

    Here is the audio:

    I invite you to follow me on Twitter @NahmodLaw

    Rosado Marzán Launches Book in Chile

    by  • November 5, 2014 • 0 Comments

    rosado book launch

    Sergio Gamonal C. (left) and César F. Rosado Marzán.

    On October 20, 2014, Professors César F. Rosado Marzán (IIT Chicago-Kent) and Sergio Gamonal C. (Adolfo Ibáñez) launched their new book, El Principio de Protección del Trabajador en el Derecho Norteamericano (“The Protective Principle in U.S. Work Law”), at the Universidad Adolfo Ibáñez in Santiago, Chile. The launch ceremony featured a discussion of the book with Omar Astudillo Contreras, Minister of the Court of Appeals of Santiago, and Jose Luis Ugarte Cataldo, a professor at the Universidad Diego Portales and one of the most prolific labor law scholars in Chile.

    Rosado bookEl Principio de Protección del Trabajador en el Derecho Norteamericano, published by Thomas Reuters-Chile, is a modified translation of the authors’ English article “Protecting Workers as a Matter of Principle: A South American View of U.S. Work Law” (forthcoming in the Washington University Global Studies Law Review). The book and article are attempts to use South American models to jump-start a discussion in the U.S. about the country’s need to develop more substantive principles for labor and employment law (i.e. “work law”).

    Scholars have noted that judicial conservatism has eroded work in law in the United States. The Roberts Court has kept in line with such conservatism, deciding a number of key work law cases in favor of employers. But the rebirth of work law in South America after years of authoritarian rule and dictatorship may provide valuable lessons for the U.S. and other jurisdictions. In particular, the authors point to the principle of protection, perhaps the central pillar of South American work law, as a doctrine that may help develop U.S. work law.

    To read the English article version, click here.

    Note: The book is not yet available online for purchase, but once it is, it will be available here.

    The Battle for a Free and Open Internet Continues

    by  • October 30, 2014 • 0 Comments

    [Reposted IIT Chicago-Kent NewsBrief]

    The Stop Online Piracy Act (SOPA), the controversial copyright bill that would have authorized the U.S. attorney general to obtain a court order to block Internet access to foreign websites accused of criminal piracy or counterfeiting, sparked the largest online protest ever.

    Prof. Edward Lee

    According to IIT Chicago-Kent Professor Edward Lee, author of The Fight for the Future: How People Defeated Hollywood and Saved the Internet—For Now, the January 18, 2012, Internet blackout was the shot heard ’round the cyber world. “On that date, more than 115,000 websites, including Wikipedia, Google and Twitter, went ‘black’ in a day of self-censorship,” says Professor Lee, director of IIT Chicago-Kent’s Program in Intellectual Property Law. “It is an incredible example of democracy in action, of civic engagement. The people—not the lawyers, lobbyists, government officials or courts—were at the forefront of the fight to save the Internet.”

    In addition to the blackout, 8 million Americans looked up contact information for their representatives in Congress, 10 million signed petitions sent to Congress, 3 million emails were sent, and 100,000 phone calls were received.

    Professor Lee likens the organization of the anti-SOPA protests, which was conducted primarily on the Internet, to the decentralized network established by Paul Revere and early American patriots to sound the alarm about the British more than 200 years ago. “Now, as then, ‘we, the people’ can make a difference,” he says.

    “The grassroots efforts by millions of people in the name of a ‘free and open Internet’ prevailed over the special interests and copyright industries that supported SOPA, but the battle is ongoing,” cautions Professor Lee. “Why do you think the FCC just received over 3 million comments on its controversial net neutrality proposal? That’s the most in FCC history.”

    Professor Lee has founded The Free Internet Project (TFIP), a nonprofit organization whose mission is to provide the public with information about the latest legal and technological efforts to protect Internet freedoms around the world. TFIP is the first nonprofit based in Chicago that is devoted to protecting Internet freedoms.

    The Free Internet Project is based on the belief that the Internet is an amazing tool for sharing knowledge, and that people around the world can learn from and share in the efforts to protect Internet freedoms in other countries. TFIP provides a user-friendly resource for the public to follow, and through which they can comment on, the latest bills, decisions, constitutional amendments, and technologies to protect the “free and open Internet.”

    “Protecting Internet freedom is the next civil rights movement of the 21st century,” says Professor Lee. “It’s happening in countries around the world, not just the United States. It’s our generation’s moment in history, how we will be later judged by future generations.

    “Every day, there are challenges and threats. The Free Internet Project hopes to make a small contribution to this movement to protect Internet freedoms by providing a common resource for people to track the legal and technological efforts people are undertaking to protect their freedoms.”

    Weekly Faculty in the News, 10/24/14

    by  • October 24, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 10/17/14 to 10/24/14.

    10/19Mary Rose Strubbe was quoted in a Chicago Daily Herald article about flight attendants’ role in battling sex discrimination (“Flight attendants helped to ground sex discrimination”). The article also mentioned the Chicago-Kent conference on the same subject, which was held at the school this past Thursday.

    10/21Richard Warner and colleague Robert Sloan (UIC) authored an article in Crain’s Chicago Business on the problem of corporate data breaches (“Why those corporate data breaches are happening,” limited access).

    10/23Edward Lee and his new nonprofit—The Free Internet Project—were highlighted in a Chicago-Kent NewsBrief. Prof. Lee’s organization is dedicated to providing the public with information about the latest legal and technological efforts to protect Internet freedoms around the world.


    10/22 – At his blog Nahmod Law, Sheldon Nahmod highlighted the Fourth Amendment Deep Dive that Oyez has put together.

    Weekly Faculty in the News, 10/17/14

    by  • October 17, 2014 • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week, 10/9/14 to 10/17/14.

    10/9The Volokh Conspiracy blog at the Washington Post highlighted Ed Lee’s new nonprofit, The Free Internet Project, which aims “to provide the public with information about the latest legal and technological efforts to protect Internet freedoms around the world.”

    10/14 – The government tech news site FedScoop quoted Ed Lee in an article about a new service that allows the USPTO and its equivalent office in China to electronically exchange certain patent application documents (“Patent Office, China establish electronic exchange for application priority docs”).

    10/14Patently-O profiled a new empirical study of recent patent litigation co-authored by professors John Allison, Mark Lemley, and Chicago-Kent’s Dave Schwartz. The study, titled Understanding the Realities of Modern Patent Litigation, is an extensive update of a 1998 article by Allison and Lemley, and has just been published by the Texas Law Review.