News & Media http://www.law.uchicago.edu/feeds/newsandmedia.rss en The Paradoxes of Public Philosophy http://www.law.uchicago.edu/faculty/research/brian-leiter-paradoxes-public-philosophy <div class="field field-type-text field-field-facultyresearch-photo"> <div class="field-items"> <div class="field-item odd"> http://www.law.uchicago.edu/files/imagecache/sidebar-image/image/LeiterBrian.jpg </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p><span>&nbsp;</span><span></span></p> </div> </div> </div> <div class="field field-type-nodereference field-field-facultyresearch-author"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Author:&nbsp;</div> Brian Leiter </div> </div> </div> <p><span>The idea of “public philosophy” — that is, philosophy as contributing to questions of moral and political urgency in the community in which it is located — is paradoxical for two reasons. The first is that normative philosophy has no well-established substantive conclusions about the right and the good. Thus, philosophers enter into moral and political debate purporting to offer some kind of expertise, but the expertise they offer can not consist in any credible claim to know what is good, right, valuable, or any other substantive normative proposition that might be decisive in practical affairs. But philosophers — at least those in the broadly Socratic traditions — do bring to debate a method or way of thinking about contested normative questions: they are good at parsing arguments, clarifying the concepts at play in a debate, teasing out the dialectical entailments of suppositions and claims, and so on: Socratic philosophers are, in short, purveyors of what I call “discursive hygiene.” This brings us to the second paradox: although philosophers can contribute no substantive knowledge about the good and the right, they can contribute discursive hygiene. But discursive hygiene plays almost no role in public life, and an only erratic, and highly contingent, role in how people form beliefs about matters of moral and political urgency. I call attention to the role of two factors in moral judgment: non-rational emotional responses and “Tribalism,” the tendency to favor members of one “tribe” at the expense of others. The prevalence of emotional responses, especially tribalist ones, undermines the efficacy of discursive hygiene in public life.&nbsp;</span></p> <p><span>I conclude that the role for public philosophy is quite circumscribed, though public philosophers should learn from their cousins, the lawyers, who appreciate the role that rhetoric, beyond discursive hygiene, plays in changing moral attitudes and affecting action. Along the way, I discuss Stevenson’s emotivism, what we can learn from Peter Singer’s schizophrenic role as a public philosopher (lauded for his defense of animal rights, pilloried for his defense of killing defective humans), evolutionary explanations of tribalism, the lessons of American Legal Realism for the possible relevance of discursive hygiene, and Marx and Nietzsche as "public" philosophers.</span></p> Thu, 20 Nov 2014 22:01:24 +0000 willcanderson 24362 at http://www.law.uchicago.edu NY Times Features FCJC Case in Drug Sting Story http://www.law.uchicago.edu/news/ny-times-features-fcjc-case-drug-sting-story <div class="field field-type-text field-field-news-title"> <div class="field-items"> <div class="field-item odd"> Lured to Stings by Fake Drugs and Facing Jail Time That&#039;s All Too Real </div> </div> </div> <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> Erik Eckholm </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> The New York Times </div> </div> </div> <div class="field field-type-date field-field-datepublished"> <div class="field-items"> <div class="field-item odd"> <span class="date-display-single">November 20, 2014</span> </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p>The work of the&nbsp;Federal Criminal Justice Clinic was highlighted in the Times's coverage of sting operations using fake drugs.</p> </div> </div> </div> <p>In a separate line of attack on the drug stings, defendants in Chicago and elsewhere have filed motions to require the bureau to provide data on the racial makeup of sting targets, and information on how the agency selects its targets.</p> <p>In one case, the agency asked the court to dismiss charges rather than be required to comply. In several others, after <a title="AP news account of one such ruling." href="http://www.huffingtonpost.com/2013/08/01/racial-profiling-in-drug-stings_n_3690551.html">judges found at least suggestive evidence of racial targeting</a> and approved the data request, the agency has complied, though the information remains under seal.</p> <p>The goal, defense lawyers say, is to build a case that the bureau engages in racial profiling and selective prosecution, which could result in the dismissal of charges.</p> <p>Defense lawyers in the Chicago cases calculated that the 25 known stash-house stings in that judicial district since 2006 involved 75 black, 16 Latino and six white defendants. The 13 cases since 2010 involved 45 black defendants, 14 Latinos and one white person.</p> <p>An unofficial national <a title="USA Today investigation." href="http://www.usatoday.com/story/news/nation/2014/07/20/atf-stash-house-stings-racial-profiling/12800195/">review of court files by USA Today</a>, published in July, found that nine in 10 of those imprisoned through such stings were black or Hispanic, well above the share of minorities convicted on charges of other federal robbery, gun and drug offenses.</p> <div class="field field-type-text field-field-news-source-url"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Read more at:&nbsp;</div> <p><a href="http://www.nytimes.com/2014/11/21/us/lured-to-stings-by-fake-drugs-and-facing-jail-time-thats-all-too-real.html">http://www.nytimes.com/2014/11/21/us/lured-to-stings-by-fake-drugs-and-facing-jail-time-thats-all-too-real.html</a></p> </div> </div> </div> Thu, 20 Nov 2014 21:30:09 +0000 willcanderson 24361 at http://www.law.uchicago.edu Start your international law research with the World Treaty Library via HeinOnline! http://news.lib.uchicago.edu/blog/2014/11/20/start-your-international-law-research-with-the-world-treaty-library-via-heinonline/ Are you researching an international law topic for your substantial research paper?  For a journal comment or article?  For a clinic or center research project?  For your B.A. paper?  Make sure you look for a related treaty or international agreement &#8230; <a href="http://news.lib.uchicago.edu/blog/2014/11/20/start-your-international-law-research-with-the-world-treaty-library-via-heinonline/">Continue&#160;reading&#160;<span class="meta-nav">&#187;</span></a> Thu, 20 Nov 2014 20:07:58 +0000 Lyonette Louis-Jacques http://news.lib.uchicago.edu/?p=25693 International Human Rights Clinic -- Significant Achievements http://www.law.uchicago.edu/clinics/theadvocate/international-human-rights-clinic-significant-achievements <div class="field field-type-date field-field-datepublished"> <div class="field-items"> <div class="field-item odd"> <span class="date-display-single">November 20, 2014</span> </div> </div> </div> <p>The International Human Rights Clinic started in January 2013. The Clinic works for the promotion of social and economic justice globally, including in the United States. The Clinic uses international human rights laws and norms as well as other substantive law and strategies to draw attention to human rights violations, develop practical solutions to those problems using interdisciplinary methodologies, and promote accountability on the part of state and non-state actors.&nbsp; The Clinic works closely with non-governmental organizations to design, collaborate, and implement projects, which include litigation in domestic, foreign, and international tribunals as well as non-litigation projects, such as documenting violations, legislative reform, drafting reports, and training manuals.</p> <p>Clinic students researched and drafted a report titled “Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States,” in partnership with the National Asian Pacific American Women’s Forum (NAPAWF) and Advancing New Standards in Reproductive Health (ANSRH). As part of the research, clinic student Jeff Gilson travelled to India with Clinic Fellow Brian Citro to better understand the issues surrounding declining sex ratios and the practice of sex selection in the country. The report examines the recent proliferation of laws banning sex-selection abortion in the United States. It is the work of a multidisciplinary team, including two economists and a reproductive health specialist. As the report explains, laws banning sex-selective abortion have been introduced and enacted based upon a combination of implicit bias, factual inaccuracies and harmful stereotypes about Asian Americans. Rather than to combat gender discrimination, the report shows that sex-selective abortion bans are intended to limit access to abortion generally. The report will be submitted in legislative debates at the federal and state level and will be shared directly with legislators around the country. Clinic student Bill Watson presented findings from the report at stakeholder briefing sessions in Washington, D.C. and New York City and participated by video in a session held in San Francisco. Bill Watson also wrote a series of blog posts examining important issues in the report to be published online. Clinic student Kelsey Stricker participated in a lunch-time panel discussion at the Law School, presenting the findings of the report along with representatives from NAPAWF and ANSRH.</p> <p>Clinic students, in partnership with Nazdeek, a legal capacity building organization based in India, conducted comparative research on housing rights and policy in New Delhi, India, with a view toward identifying and addressing the major problems and challenges faced by slum-dwellers and homeless people in the city. Students interviewed prominent scholars and activists, reviewed legal and socio-economic literature, and wrote four memos comparing housing policies in the UK, South Africa, Brazil and Chicago. Students also spent two weeks in Delhi meeting with government officials, including judges and heads of land-owning agencies, policy researchers, local activists, urban planners, and human rights lawyers. They also visited several slums and night shelters for homeless people and conducted in-depth interviews with local community leaders and stakeholders.&nbsp; The team successfully presented its research to the Law Commission of India and Justice A.P. Shah, former Chief Justice of the Delhi High Court and current Chairman of the Law Commission.</p> <p>Clinic students travelled to Colombia to conduct interviews with indigenous communities to investigate issues related to their access to education. They met with students, parents and community leaders. The information gathered has been used to draft a petition to the Inter-American Commission on Human Rights claiming violations of the right to education. Students worked in partnership with the Robert F. Kennedy Center for Justice and Human Rights.</p> <p>Clinic students drafted and submitted an appeal for asylum to the U.S. Board of Immigration Appeals (BIA) on behalf of a woman who was the victim of domestic violence in Guatemala. If sent back to Guatemala, the appellant faces continued violence and the threat of death at the hands of her common law husband. Students travelled to Texas to meet in person with the appellant, who is in federal detention awaiting the outcome of her appeal. If the BIA rules in favor of the appellant, it will be the first time an individual has received asylum based solely on the threat of domestic violence in her country of origin.</p> <p>Clinic students drafted and submitted a Letter of Allegation to the UN Special Rapporteurs on the Right to Health and Torture on behalf of a drug-dependent, HIV-positive citizen of the Russian Federation. The man was arrested and arbitrarily detained by the police for possession of drugs and suffered cruel, inhuman, and degrading treatment and violations of his right of health during his detention. Students researched the case and used the facts to construct arguments based on the right to be free from torture in the Convention Against Torture and the right to health in the International Covenant on Economic, Social and Cultural Rights. The letter was submitted to the Russian government through the UN Office of the High Commissioner for Human Rights (OHCHR) and will be published in OHCHR’s quarterly communications report along with the government’s response.</p> <p>Student volunteers in the clinic conducted research and drafted legal summaries for publication on the Global Health and Human Rights Database under the supervision of attorneys at the Lawyers Collective in New Delhi, India. The Database is a free online collection of law from around the world relating to health and human rights. Developed by Lawyers Collective and the O’Neill Institute for National and Global Health Law at Georgetown University, in collaboration with a worldwide network of civil society partners, the database offers an interactive, searchable, and fully indexed website of case law, national constitutions and international instruments.</p> <p>Students working on independent research projects worked with clinic faculty to examine the current state of the law with respect to hate crimes and discrimination against religious institutions in Illinois. The objective was to determine if current levels of legal protection are adequate and, if not, to identify possible legal and policy changes to improve those levels of protection. Students presented their research findings to the Illinois Advisory Committee to the United States Commission on Civil Rights during at a meeting held at the Law School. The Committee decided to fund further research on the issues presented by the students and a Subcommittee on Hate Crimes and Discrimination Against Religious Institutions was created for this purpose. The project is ongoing.</p> Thu, 20 Nov 2014 19:57:01 +0000 cjackson 24360 at http://www.law.uchicago.edu Bringing Clarity to Rule of Law http://www.law.uchicago.edu/news/bringing-clarity-rule-law <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> By Jessica Gonzalez, ‘15 </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> The Law School </div> </div> </div> <div class="field field-type-date field-field-datepublished"> <div class="field-items"> <div class="field-item odd"> <span class="date-display-single">November 20, 2014</span> </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p>Leading scholars on the rule of law gathered at the Law School earlier this month for the inaugural conference of the World Justice Project Rule of Law Research Consortium, which was designed to bring clarity to an elusive concept.</p> </div> </div> </div> <p><span> </span></p> <p>Leading scholars on the rule of law gathered at the Law School earlier this month for the inaugural conference of the World Justice Project Rule of Law Research Consortium, which was designed to bring clarity to an elusive concept.</p> <p><span> </span></p> <p>The “rule of law” — despite its association with good governance, democracy, and growth, and its frequent appearance in development programs — is still an imprecise idea, Deputy Dean Tom Ginsburg said in his introductory remarks. Ginsburg, the Leo Spitz Professor of International Law and the Ludwig and Hilde Wolf Research Scholar, organized the conference and is co-chair of the Research Consortium.</p> <p><span> </span></p> <p>“Never in the history of foreign aid has so much money been spent on such thin conceptual foundations,” he said. “We don’t really know much about what the rule of law is, and we certainly don’t know much about where it comes from or how it’s sustained.”</p> <p><span> </span></p> <p>Panelists with expertise in law, economics, political science, anthropology, and sociology presented on topics ranging from the theoretical concepts of the rule of law, to empirical measurement, to issues of implementation. All the while, presenters and attendees were encouraged to assess the state of research on the rule of law, and to identify theoretical gaps and areas of further inquiry.</p> <p><span> </span></p> <p>Particularly salient is the ongoing debate on the use of indices to measure the rule of law. In one panel, Alejandro Ponce and Juan Carlos Botero, economists for the World Justice Project, discussed their own work on the World Justice Project Rule of Law Index. Ponce detailed the methodology behind the Index, which after years in preparation released its fourth annual report earlier this year. His presentation also highlighted ways in which the Index, which reflects more than 500 questions asked to some 100,000 citizens and 2,500 experts in 99 countries, has been used by governments around the world.</p> <p><span> </span></p> <p>Not all the panelists were as enthusiastic.</p> <p><span> </span></p> <p>After pointing out some of the benefits of using indicators, Professor Sally Engle Merry, Silver Professor of Anthropology at New York University, listed some of their costs. In producing a global indicator, she asserted, measurers must go through "processes of categorization, organization of material, and commensuration, all of which inevitably lead to simplification, to&nbsp;homogenizing&nbsp;the object of analysis, to decontextualizing the object of analysis, and to presenting as individual things that may be better understood in holistic terms."</p> <p><span> </span></p> <p>Assistant Professor Adam Chilton countered that. “These aren’t reasons to be pessimistic about data or to be skeptical about data," he said. "They’re reasons to demand more data.”</p> <p><span> </span></p> <p>He further reminded attendees that indices and data can be useful, despite their shortcomings.</p> <p><span> </span></p> <p>“It’s true that data itself is a generalization of phenomena, but we have to compare it to the alternative,” he said. “The alternative is anecdotal evidence that is biased as well.”</p> <p><span> </span></p> <p>Chien-Chih Lin, JSD ‘15, attended both days of the conference because he is interested in both rule of law issues and empirical studies.</p> <p><span> </span></p> <p>“Specifically, being a Taiwanese student who studies constitutional law in the U.S., concepts such as ‘Asian values,’ or ‘rule of law with Chinese characteristics’ are very puzzling. Therefore, determining what rule of law is, and how to evaluate the degree of rule of law or constitutionalism in different contexts, become important issues to me.”</p> <p><span> </span></p> <p>He also reflected on the work left to be done.</p> <p><span> </span></p> <p>“In the workshop, several papers proposed different theories, discussing the foundations, methodology, measurements, and the findings of rule of law, which really shed some new light on this issue,” he said. “I learned a lot from this wonderful workshop. Nonetheless, or perhaps unsurprisingly, no real consensus is reached, which I think is a good thing, since it only stimulates more thinking.”</p> <p><span> </span></p> <p>The World Justice Project is an independent, non-governmental organization engaging citizens and leaders from different disciplines to advance the rule of law worldwide. The Consortium, a repository of research on the rule of law, is intended to stimulate and spread research on the rule of law into policy spheres. It will include, <em>inter alia</em>, a working paper series, conferences and workshops, and briefs to policy makers.</p> <p><span> </span></p> <p><span> </span></p> <div class="field field-type-nodereference field-field-faculty-news"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Faculty:&nbsp;</div> <a href="/faculty/ginsburg-t">Tom Ginsburg</a> </div> <div class="field-item even"> <div class="field-label-inline"> Faculty:&nbsp;</div> <a href="/faculty/chilton">Adam Chilton</a> </div> </div> </div> <div class="field field-type-text field-field-sidebar"> <div class="field-items"> <div class="field-item odd"> <p><a href="https://soundcloud.com/uchicagolaw/sets/rule-of-law-research">Listen to audio </a>of the conference.</p> <p>&nbsp;</p> </div> </div> </div> <div class="field field-type-filefield field-field-image"> <div class="field-items"> <div class="field-item odd"> <div class="filefield-file"><img class="filefield-icon field-icon-image-jpeg" alt="image/jpeg icon" src="http://www.law.uchicago.edu/profiles/palantirprofile/modules/filefield/icons/image-x-generic.png" /><a href="http://www.law.uchicago.edu/files/image/ambrogio_lorenzetti_-_allegory_of_the_good_government_detail_-_wga13487.jpg" type="image/jpeg; length=140428">ambrogio_lorenzetti_-_allegory_of_the_good_government_detail_-_wga13487.jpg</a></div> </div> </div> </div> Thu, 20 Nov 2014 15:47:21 +0000 beckygillespie 24333 at http://www.law.uchicago.edu William Baude on the Third Restatement of Conflicts http://www.law.uchicago.edu/news/william-baude-third-restatement-conflicts <div class="field field-type-text field-field-news-title"> <div class="field-items"> <div class="field-item odd"> Coming in 2015: The Third Restatement of Conflict of Laws </div> </div> </div> <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> William Baude </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> The Volokh Conspiracy </div> </div> </div> <div class="field field-type-date field-field-datepublished"> <div class="field-items"> <div class="field-item odd"> <span class="date-display-single">November 19, 2014</span> </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p><span>The&nbsp;</span>American Law Institute<span>&nbsp;recently announced that it will be pursuing four new “Restatements” of the law next year — the Restatements being an academic attempt to rationalize a particular area of common law doctrine.</span></p> </div> </div> </div> <p>The&nbsp;<a href="http://www.ali.org/">American Law Institute</a>&nbsp;recently announced that it will be pursuing four new “Restatements” of the law next year — the Restatements being an academic attempt to rationalize a particular area of common law doctrine. They’re partly descriptive, partly normative, restating their area of law in the same way a speaker might rephrase a confusing question from the audience.</p> <p>In any event, given my other hat as a conflict-of-laws nerd, I was particularly interested to see that one of the new Restatements will be a Third Restatement of Conflicts. The First Restatement of Conflicts by Joseph Beale was famously formalist and territorial. The Second Restatement was the opposite, famously criticized by Doug Laycock for “trying to be all things to all people” and therefore producing “mush.” I’ll be very interested to see what direction the Third Restatement takes.</p> <div class="field field-type-text field-field-news-source-url"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Read more at:&nbsp;</div> <p><a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/19/coming-in-2015-the-third-restatement-of-conflict-of-laws/">http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/19/coming-in-2015-the-third-restatement-of-conflict-of-laws/</a></p> </div> </div> </div> <div class="field field-type-nodereference field-field-faculty-news"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Faculty:&nbsp;</div> <a href="/faculty/baude">William Baude</a> </div> </div> </div> Wed, 19 Nov 2014 21:45:58 +0000 willcanderson 24350 at http://www.law.uchicago.edu Adam Chilton, "Why We Know Very Little About the Effectiveness of International Law, and How Experiments Might Help to Change That" http://www.law.uchicago.edu/audio/adam-chilton-why-we-know-very-little-about-effectiveness-international-law-and-how-experiments <div class="field field-type-text field-field-auedio-new-soundcloud"> <div class="field-items"> <div class="field-item odd"> <p><iframe width="100%" height="166" scrolling="no" frameborder="no" src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/177564310&amp;color=ff5500&amp;auto_play=false&amp;hide_related=false&amp;show_comments=true&amp;show_user=true&amp;show_reposts=false"></iframe></p> </div> </div> </div> <p>While scholars in most fields argue about how laws can be changed to maximize their effectiveness, scholars of international law still regularly debate whether many of the most prominent international agreements have any effect on state behavior. Part of the reason that this foundational question is still being debated is that answering it with observational data has proven to be all but impossible. This talk will explain why research on international law has made so little progress determining whether two core areas of international law—human rights law and the laws of war—help to improve people’s lives, and then will explore how researchers are starting to use experimental methods to gain traction on the topic.</p> <p>Adam Chilton is Assistant Professor of Law at the University of Chicago Law School. This talk was recorded on November 4, 2014, as part of the Chicago's Best Ideas lecture series.</p> <div class="field field-type-nodereference field-field-audio-new-event"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Event listing:&nbsp;</div> <a href="/events/2014-11-04-why-we-know-very-little-about-effectiveness-international-law-and-how-experiments-">Why We Know Very Little About the Effectiveness of International Law, and How Experiments Might Help to Change That</a> </div> </div> </div> <div class="field field-type-nodereference field-field-audio-new-faculty"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Participating faculty:&nbsp;</div> <a href="/faculty/chilton">Adam Chilton</a> </div> </div> </div> <div class="field field-type-nodereference field-field-audio-new-video"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Related video:&nbsp;</div> <a href="/video/chilton-effectiveness-international-law">Adam Chilton, &quot;Why We Know Very Little About the Effectiveness of International Law, and How Experiments Might Help to Change That&quot;</a> </div> </div> </div> Wed, 19 Nov 2014 16:57:56 +0000 willcanderson 24346 at http://www.law.uchicago.edu Eric Posner on the Constitutional Authority for Executive Orders on Immigration http://www.law.uchicago.edu/news/eric-posner-constitutional-authority-executive-orders-immigration <div class="field field-type-text field-field-news-title"> <div class="field-items"> <div class="field-item odd"> Room For Debate: Constitutional Limits of Presidential Action on Immigration </div> </div> </div> <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> Eric Posner </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> The New York Times </div> </div> </div> <div class="field field-type-date field-field-datepublished"> <div class="field-items"> <div class="field-item odd"> <span class="date-display-single">November 18, 2014</span> </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p>If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn?</p> </div> </div> </div> <p>Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.</p> <p>Yet the Constitution also <a href="http://www.newrepublic.com/article/118951/obamas-immigration-policy-lawful-he-can-enforce-what-he-wants">gives the president “executive power,”</a> which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.</p> <p>Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit. That’s why different administrations can pursue such different policies from each other without getting Congress’s permission first. The Reagan administration came to power promising to deregulate the economy, which often meant not enforcing the law, whether it was antitrust, environmental or financial.</p> <p>If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn?</p> <div class="field field-type-text field-field-news-source-url"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Read more at:&nbsp;</div> <p><a href="http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12/the-constitutional-authority-for-executive-orders-on-immigration-is-clear">http://www.nytimes.com/roomfordebate/2014/11/18/constitutional-limits-of-presidential-action-on-immigration-12/the-constitutional-authority-for-executive-orders-on-immigration-is-clear</a></p> </div> </div> </div> <div class="field field-type-nodereference field-field-faculty-news"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Faculty:&nbsp;</div> <a href="/faculty/posner-e">Eric Posner</a> </div> </div> </div> Wed, 19 Nov 2014 16:53:29 +0000 willcanderson 24345 at http://www.law.uchicago.edu Research Matters: Nicholas Stephanopoulos on "Partisan Gerrymandering and the Efficiency Gap" http://www.law.uchicago.edu/node/24320 <div class="field field-type-nodereference field-field-facresearch-abstract"> <div class="field-items"> <div class="field-item odd"> <a href="/faculty/research/nicholas-stephanopoulos-partisan-gerrymandering-and-efficiency-gap">Partisan Gerrymandering and the Efficiency Gap</a> </div> </div> </div> <div class="field field-type-nodereference field-field-researchmatters-faculty"> <div class="field-label">Faculty member:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/faculty/stephanopoulos">Nicholas Stephanopoulos</a> </div> </div> </div> <div class="field field-type-filefield field-field-image"> <div class="field-items"> <div class="field-item odd"> <div class="filefield-file"><img class="filefield-icon field-icon-image-jpeg" alt="image/jpeg icon" src="http://www.law.uchicago.edu/profiles/palantirprofile/modules/filefield/icons/image-x-generic.png" /><a href="http://www.law.uchicago.edu/files/image/stephanapoulos-web.jpg" type="image/jpeg; length=18137">stephanapoulos-web.jpg</a></div> </div> </div> </div> <p><span> </span></p> <p><a href="http://www.law.uchicago.edu/faculty/research?order=nid&amp;sort=desc"><em>Research Matters</em></a><em> is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.</em></p> <p><span> </span></p> <p>Professor Nicholas Stephanopoulos wrote “Partisan Gerrymandering and the Efficiency Gap” with <a href="http://www.ppic.org/main/bio.asp?i=378">Eric M. McGhee</a>, a research fellow at the Public Policy Institute of California. The paper, which proposes a new method for measuring the fairness of partisan district plans, will be published in the <em>University of</em> <em>Chicago Law Review</em> in 2015.</p> <p><span> </span></p> <p><strong>Q. Why did you write this paper?</strong><br /> A. For years and years, the cause of action for partisan gerrymandering has been in a weird limbo. The U.S. Supreme Court, by tenuous majority, continues to think that it is a legitimate, justiciable theory for bringing a suit. But, at the same time, five justices keep rejecting every single standard that anybody comes up with to distinguish between what’s a lawful district plan, and what’s an unlawful district plan. So there’s a real need in this area of law for a test that courts can use. The idea in this paper was to propose a test —&nbsp; and not just any test, but one that responds to what I think is a narrow, but real, opening in the Court’s last decision, <a href="http://en.wikipedia.org/wiki/League_of_United_Latin_American_Citizens_v._Perry"><em><span>LULAC v. Perry</span></em></a>, in 2006. In<em> LULAC</em>, for the first time in 20 years, the Court — with five justices signing on — expressed some openness to a test that is based on the notion of partisan symmetry. That means treating the political parties equally in terms of how their votes convert into seats. There could be a variety of a different kinds of tests. In the paper, my co-author and I argue for one based on a metric we call the efficiency gap.</p> <p><span> </span></p> <p><strong>Q.</strong> <strong>What is the efficiency gap?</strong><br /> A. It measures wasted votes. The two mechanisms that are part and parcel in gerrymandering are “packing” and “cracking” the other side’s votes. “Packing” means over-concentrating the other side’s votes so they win by huge margins in a small number of districts, and “cracking” means distributing their votes over lots of districts, so they lose each district by a relatively narrow margin. Packing results in surplus votes, and cracking results in lost votes; either way, they’re not contributing to a candidate’s victory in a district. The efficiency gap is a tally of all the packing and all the cracking that’s in a given district plan. We add up all the wasted votes for each party, and divide by all the votes cast. The idea is that in a perfectly fair plan, the parties would waste the same number of votes, so you would get an efficiency gap of zero. The bigger the difference between the parties’ wasted votes, the more one party has been either a victim or a beneficiary of gerrymandering.</p> <p><span> </span></p> <p><strong>Q. So if the gap is in favor of Party A, that means they essentially are able to win more seats with the same number of votes?</strong><br /> A. Yes. There’s a gap in the efficiency with which the parties’ votes turn into seats.</p> <p><span> </span></p> <p><strong>Q. You and your co-author computed the efficiency gap going back 40 years for congressional and state house races. What did you find?</strong><br /> A. Over the <em>whole</em> 40-year period, plans look pretty symmetric. There’s no systematic bias in favor of either the Democrats or the Republicans. But there have been serious trends toward favoring the Republicans. In the ‘70s and ‘80s, plans were tilted a little bit toward the Democrats. In the ‘90s, they were roughly fair. Then in the 2000s and 2010s, it moved toward the Republicans, more than it had ever been toward the Democrats. And not only are plans more pro-Republican on average, the typical plan benefits some party — whether it’s the Democrats or the Republicans — more so than in the past. Overall, the extent of gerrymandering is getting worse. But it’s Republicans who are the big winners.</p> <p><span> </span></p> <p><strong>Q. Why?</strong><br /> A. That’s the big question. Is it because they’re deliberately manipulating district lines more than in the past? I think they probably are, and they are probably aided in doing this by advances in technology. It’s much easier to produce a really good, really high efficiency gap in a district plan now. They might also be the beneficiaries of things other than deliberate efforts to screw over the other party. It might just be that Democrats are even more concentrated in cities than they used to be, and so there might be a natural gerrymandering effect against Democrats.</p> <p><span> </span></p> <p><strong>Q. Did the findings surprise you?</strong><br /> A. It was pretty obvious that Republicans were really benefitting from gerrymandering in 2012. You have a number of states — Wisconsin, Pennsylvania, Ohio, Michigan — where Republicans won less than the majority of the total vote in the state and then won big majorities of the seats. Even an eyeball test shows that’s extreme gerrymandering. But I was surprised at how across-the-board it is. I wouldn’t have known that Wyoming is really bad, or that all sorts of states that aren’t in the news are really bad. I was surprised that 2012 was so much worse than previous cycles. I was surprised that Democrats don’t seem able to gerrymander effectively when they’re in charge.</p> <p><span> </span></p> <p><strong>Q. Why should the average American care about district plans and the efficiency gap?</strong><br /> A. It affects the policies coming out of legislatures. At the federal level, if there had been an efficiency gap of zero in every state in 2012, Democrats would have controlled the U.S. House. The last two years would have been completely different with a Democratic Congress. Immigration reform would have passed, a climate-change action might have been taken. Gerrymandering is not just about seats and votes; if you affect who gets elected, you affect which policies come out. Gerrymandering makes it possible to have a big distortion in what the public wants versus what the public gets. There’s been a big uproar over voter ID laws, over campaign finance —and all those things are important, but neither a voter ID law nor campaign