News & Media en Research Matters: Geoffrey Stone on “The Behavior of Supreme Court Justices When Their Behavior Counts the Most” <div class="field field-type-nodereference field-field-facresearch-abstract"> <div class="field-items"> <div class="field-item odd"> <a href="/faculty/research/geoffrey-r-stone-behavior-supreme-court-justices-when-their-behavior-counts-most">The Behavior of Supreme Court Justices When Their Behavior Counts the Most</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/stone-g">Geoffrey R. Stone</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="" /><a href="" type="image/jpeg; length=7058">stone_geof.jpg</a></div> </div> </div> </div> <p><a href=";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>Professor <a href="">Geoffrey Stone</a> wrote “<a href="">The Behavior of Supreme Court Justices When Their Behavior Counts the Most</a>” for the September/October 2013 issue of the journal <a href=""><em>Judicature</em></a><em>. </em>In the work, Stone examines the voting behavior of Supreme Court justices in the 20 most “important” decisions since 2000 and whether those votes align with individual justices’ ideological preferences.</p> <h2>Q. Why did you write this?</h2> <p>A. I was curious. I was intrigued by the question, what explains the pattern of voting of Supreme Court justices in the most important decisions in recent years? I tried to figure out a simple way of doing this, so I asked several colleagues to tell me what they thought were the most important Supreme Court decisions since 2000. I then selected the 20 with the most “votes” and looked at how the justices voted in these cases. The hypothesis was that justices are most likely to be driven by ideological preferences in the most important cases. In cases that are not so important, they’re more likely to follow the law, so long as there’s law to be followed. But the temptation to stretch to reach the “right result,” based on what they think is the best public policy, is likely to be the greatest when the stakes are the highest. I had a research assistant go through the votes in all these cases and tabulate in each one who voted to uphold the law and who voted to strike down the law.</p> <h2>Q. What did you find?</h2> <p>I found that justices voted in a highly ideologically predictable manner in these cases. The cases cut across a broad range of constitutional questions, including freedom of speech, freedom of religion, search and seizure, equal protection, due process, commerce clause, and the like. What I discovered was that the justices who are generally regarded as “conservative”– Rehnquist, Scalia, Thomas, Roberts, and Alito – voted together 99 percent of the time in these cases. The only vote that departed from this pattern was Chief Justice Roberts’ vote in the Affordable Care Act case, which is no doubt why all the conservatives in the country were so upset with him. I also found that the justices who are thought of as “liberal” – Stevens, Souter, Ginsburg, Breyer, Kagan, and Sotomayor – voted together 97 percent of the time in these cases. Justices Kennedy and O’Connor were the only justices who did not vote in a consistent, invariable pattern. They voted, each independently, roughly two-thirds of the time with the conservative justices and roughly one-third of the time with the liberal justices. This explains and ratifies the perception that O’Connor and Kennedy were the “swing votes” in this era. They were, quite clearly, the ones who ultimately determined the outcomes in these cases.</p> <h2>Q. Is this ideological pattern a problem?</h2> <p>A. One likes to think that judges decide cases according to legal principles, precedents, methodologies, and so on. That would often lead them to reach results different from the ones they would prefer to reach as a matter of their own personal, political ideologies. But what came across in this set of decisions is that the justices pretty consistently voted in ways that tracked their own policy preferences. This is certainly disconcerting. &nbsp;</p> <h2>Q. What can we do about that?</h2> <p>A. One thing we can do is to make this explicit, which is one of the reasons for writing this piece. The reason it was published in <em>Judicature </em>is because that journal published a set of essays about a <a href="">book</a> published by <a href="">Richard Posner</a>, <a href="">William Landes</a>, and <a href="">Lee Epstein</a>, about the behavior of federal judges. It is an empirical study of the voting pattern of the federal judges and justices over a long period of time. My piece asked different, though similar, questions. By confining my inquiry to these most important decisions, I was able to highlight a pattern that was evident, but not as dramatic, in their analysis. That’s why I published this piece as part as this collection of essays.</p> <h2>Q. Can these votes be explained outside of ideology?</h2> <p>A. I asked that question in the paper. I found that it was possible to explain the votes of the more liberal justices by identifying a familiar theory of constitutional interpretation, which was first enunciated by Chief Justice Harlan Fiske Stone in 1938 in his famous “footnote 4,” in a case called <a href=""><em>Carolene Products</em></a>. He suggested that, in general, when interpreting and applying the Constitution, judges should defer to the elected branches of the government and take a relatively restrained view of their authority. Stone recognized that the central question was when judges should depart from that general presumption and be more aggressive, or more “active,” in reviewing the constitutionality of government action. Stone identified two situations in which it made sense for judges to be more muscular. First, judges should be less deferential, and more skeptical, when a law disadvantages a group that has historically been oppressed or subordinated. Second, judges should be less deferential, and more skeptical, when a law poses risk of political capture – that is, when those in authority enact laws that might be designed to perpetuate their own authority. Footnote 4 suggested that courts should not be restrained in evaluating the constitutionality of law in those two circumstances, because in those situation the risk of majoritarian abuse or dysfunction is greatest, and it is in precisely those circumstances that judicial review is most important.</p> <p>If you accept this theory as stating an appropriate approach to constitutional interpretation, as I do, and if you then examine all 20 of the laws that were at issue in the cases I examined, you would to tend to invalidate almost of the laws that the “liberal” justices struck down, and to uphold almost of laws that the “liberal” justices upheld. A reasonable inference, then, is that these justices are applying somewhat quite akin to the footnote 4 approach to constitutional interpretation. This suggests that they are pretty neutrally applying a principled theory of constitutional law that was proposed 75 years ago, rather than just voting their personal ideological preferences in each case.</p> <p>On the other hand, when I looked at the votes of the “conservative” justices in these cases and asked whether I could imagine some principled methodology that one could apply in a consistent manner to get the results they reached, I could not conjure any such theory. Originalism certainly does not get you there, nor does a commitment to judicial restraint. To the best of my knowledge, no judge, lawyer, or scholar has ever articulated a principled approach to constitutional interpretation that would lead to this particular set of 20 votes. I’ve asked several of my conservative friends, “can you come up with such a theory?” Apparently, they can’t, other than to say, “these justices are making sound decisions” – which just happen to coincide with their personal ideological preferences.</p> <h2>Q. Do your conservative friends accuse you of picking on conservatives?</h2> <p>A. It’s a perfectly fair question. And I say, OK, fine, answer the question. And sometimes they don’t even get back to me, because they don’t have a good answer. And sometimes they say, well, it’s a combination of originalism and judicial restraint and precedent, it’s a whole bunch of things. But that’s not very persuasive, because they’re picking and choosing competing theories and explanations on a case-by-case basis in order to justify a set of preferred results. There’s nothing consistent about it. Which leads me at least tentatively to conclude that the pattern of votes of the conservative justices in these 20 cases cannot be explained in any fair-minded, neutral, or principled manner. It is, rather, I suspect, a product of the personal, political, and ideological value judgments of these individual justices, which is, indeed, troubling.</p> <h2>Q. Isn’t it possible the liberal judges are acting out of ideology too, and not in deference to footnote 4?</h2> <p>A. Absolutely. It is possible that the specific judgments of twenty-first century liberal justices just happen coincidentally to track the results you would predict if you neutrally applied the 1938 footnote 4 theory. That seems statistically unlikely, however. Of course, I don’t know what’s going on in the justices’ minds. But it is comforting to me to think there is, in fact, a sensible, principled theory of constitutional intepretation that seems plainly to explain – and justify – their results. So even if they’re being “bad,” they’re somehow, inadvertently, being good.</p> Wed, 16 Apr 2014 21:33:29 +0000 mheagney 21342 at Lior Strahilevitz, "Personalizing Default Rules and Disclosure with Big Data" <p><iframe width="560" height="315" src="//" frameborder="0" allowfullscreen></iframe></p> <p>The laws of intestacy are the same for men and women even though preferences for how one's estate should be divided differ by gender. Peanut-allergic octogenarian men and gluten-allergic pregnant women see the same warnings on consumer products even though they are interested in seeing information that is much better tailored to them. Companies have made enormous strides in studying and classifying groups of consumers, and yet almost none of this information is put to use by providing consumers with contractual default terms or disclosures that are tailored to their preferences and attributes. This lecture will explore the costs and benefits of personalizing various parts of American law and business practices.&nbsp;<br />This talk was recorded on April 7, 2014. Lior Strahilevitz is Sidley Austin Professor of Law at the University of Chicago Law School.</p> <div class="field field-type-text field-field-sidebar-position"> <div class="field-items"> <div class="field-item odd"> Right </div> </div> </div> Wed, 16 Apr 2014 21:30:20 +0000 arester 21341 at Young Center Helps Secure Victory for Teenager Facing Unsafe Repatriation <div class="field field-type-text field-field-news-title"> <div class="field-items"> <div class="field-item odd"> Law Clinic Students at the Young Center for Immigrant Children’s Rights Help Secure Victory for Teenager Facing Unsafe Repatriation </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> Young Center for Immigrant Children&#039;s Rights </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">April 16, 2014</span> </div> </div> </div> <p>Until February 28, 2014, Leslie, a sixteen-year-old girl residing in California, faced deportation to Mexico because the Superior Court of Orange County refused to find that deportation was contrary to her best interests—a necessary finding to apply for Special Immigrant Juvenile Status (SIJS), a form of immigration relief for children who were abused, neglected, or abandoned by a parent. This despite evidence that her only relatives in Mexico were an abusive mother and a father who had abandoned her. The California State Court of Appeals for the Fourth Appellate District issued a writ of mandate vacating the order that had denied Leslie relief. The appellate court directed the juvenile court to enter a new order sustaining the requisite findings and enabling Leslie to apply for SIJS. The Young Center for Immigrant Children’s Rights filed an <em>amicus</em> brief in the case, drafted by University of Chicago Law School students Courtney Cox (’14) and Kate Long (’14) and supervised by Policy Director Jennifer Nagda (’04), which argued that Leslie’s petition for a writ should be granted.</p> <p>Congress created SIJS in 1990 to provide protection for abused, neglected, and abandoned undocumented minors for whom it is not in their best interests to return to their countries of origin. This status allows these children to become lawful permanent residents of the United States. While the federal government retains the authority to grant or deny a child’s SIJS petition, state juvenile courts are charged with making a preliminary determination of the child’s dependency and best interests, a prerequisite to applying for SIJS. In this case, Leslie, who had lived most of her life in California with her grandmother, faced deportation to Mexico, where there was no responsible adult to care for her. The juvenile court declined to issue the predicate order, erroneously finding that Leslie did not meet the dependency criteria, that parental reunification was viable, and that it would be in Leslie’s best interests to be returned to her parents in Mexico, despite uncontroverted evidence to the contrary.</p> <p>In their <em>amicus</em> brief Young Center clinic students Cox and Long argued that the juvenile court erred in basing its best interests determination on stereotypes about Mexican immigrant families, rather than making an individualized decision based on Leslie’s unique history. In its opinion, the court speculated that Leslie would be better off returning to Mexico because Mexican immigrant families with “minors who have encountered difficulty with the law” frequently “send their children back to Mexico to get them out of the negative environment that has placed them in the juvenile court.”&nbsp; The Young Center argued that such generalizations undermine a best interests analysis. We also argued that because a child’s safety and the availability of a responsible adult caregiver are paramount considerations in any best interests determination, separating Leslie from her grandmother would violate fundamental principles of family unity found in domestic child welfare law and international law, and reflected in recent changes to federal immigration policy.</p> <p>In granting Leslie’s writ relief, the appellate court embraced the Young Center’s arguments, explaining that the juvenile court’s findings were improperly influenced by “misplaced policy conclusions” and based on “anecdotal impressions, untethered to any evidence in [the] case.” The appellate court explained: “A state court’s role in the SIJ process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned in their best interests to their home country.” The appellate court concluded that Leslie met the dependency criterion, that “the facts overwhelmingly establish Leslie’s reunification with one or both of her parents was not viable due to abuse, neglect, and abandonment,” and that “nothing in the record supported the juvenile court’s conclusions that repatriation to Mexico was in Leslie’s best interests.” The appellate court noted that Leslie “as an unaccompanied minor ha[s] no one to return to safely in Mexico,” and agreed that “[b]y all accounts, Leslie’s grandmother [is] her only refuge.”</p> <p>“Working on this case was such a great experience,” third-year law student Kate Long explained. “I hope that the precedent set by the appellate court will ensure that other children in Leslie’s situation receive the individualized best interests determinations they are entitled to.” Third-year law student Courtney Cox added: “We are particularly pleased to have succeeded on facts that might appear unsympathetic—if you forget that the petitioner was a child who survived severe abuse and faced permanent separation from her grandmother, the only adult who had ever cared for her. Leslie came before the juvenile court as a juvenile delinquent, and the juvenile court failed to consider her best interests individually as a result. But the appellate court rightly recognized that a child’s mistakes should not result in her permanent separation from family or her repatriation to an unsafe situation in home country.” The Young Center’s <em>amicus</em> brief was filed in collaboration with the Los Angeles-based Esperanza Immigrant Rights Project and was joined by the University of California Hastings College of the Law’s Center for Gender &amp; Refugee Studies.</p> Wed, 16 Apr 2014 21:19:57 +0000 arester 21340 at The Behavior of Supreme Court Justices When Their Behavior Counts the Most <div class="field field-type-text field-field-facultyresearch-photo"> <div class="field-items"> <div class="field-item odd">,%20Geof.jpg </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> Geoffrey R. Stone </div> </div> </div> <div class="field field-type-nodereference field-field-facresearch-qanda"> <div class="field-label">Q&amp;A about this work:&nbsp;</div> <div class="field-items"> <div class="field-item odd"> <a href="/faculty/research/geoffrey-r-stone-behavior-supreme-court-justices-when-their-behavior-counts-most/qanda">Research Matters: Geoffrey Stone on “The Behavior of Supreme Court Justices When Their Behavior Counts the Most” </a> </div> </div> </div> <p>In this paper, Geoffrey Stone examines the votes of 13 Supreme Court Justices in 20 important constitutional cases since 2000 to compare the differences between liberal and conservative approaches to constitutional interpretation.</p> <p> While liberals have often been associated with judicial activism and conservatives have rhetorically embraced judicial restraint, Stone argues that the Court’s “most important recent constitutional decisions” belie this “traditional understanding of how liberal and conservative justices behave.” Stone argues instead that the moderately liberal justices employ a method of “selective judicial activism deeply rooted in the original understanding of the essential purpose of judicial review in our system of constitutional governance” and reflective of the Court’s famous footnote four in <em>United States v. Carolene Products Co.</em> The conservative justices, on the other hand, while “articulat[ing] two quite different theories of constitutional interpretation,” judicial restraint and originalism, are unable to demonstrate any consistent interpretive theory capable of explaining their votes in important constitutional decisions.</p> <p> Stone concludes that the moderately liberal justices apply an approach in line with “the original concerns of the Framers of the Constitution and in their distinctive understanding of the special responsibility of courts in our constitutional system,” while the Court’s conservatives’ “votes cannot be explained by any consistent theory of constitutional interpretation” but are instead driven by their own policy preferences.</p> Wed, 16 Apr 2014 19:55:50 +0000 mheagney 21334 at Human Rights Clinic Earns Delhi Center Grant <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> Meredith Heagney </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> Law School Office of Communications </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">April 16, 2014</span> </div> </div> </div> <p>Clinic Fellow <a href="">Brian Citro</a> has been awarded a $30,000 grant from the newly opened <a href="">University of Chicago Center in Delhi</a> to help fight tuberculosis in India. Citro, who works in the Law School’s <a href="">International Human Rights Clinic</a>, is part of an interdisciplinary team that will develop a rights-based approach to prevent and treat tuberculosis, a global epidemic among the world’s poor.</p> <p>The project will explore how human rights, and particularly the right to health, can be used as tools to increase access to testing and treatment of tuberculosis in India. They will work to articulate the rights of people with the disease, and those at risk of contracting it, as well as the obligations of government and the private sector in providing treatment and prevention. Finally, they will develop methods to bring a rights-based approach to the fight against tuberculosis that can be used in India and other developing nations.</p> <p>The project, which will begin this summer, will include a research trip to India and a conference in Delhi this fall. International Human Rights Clinic students will work alongside Citro.</p> <p>“India has the highest TB burden in the world. More than 1,000 people on average die a day from TB in India,” Citro said. “But the disease is easily curable and at a low cost. Social and economic factors, including poverty, poor sanitation, and lack of access to appropriate testing and treatment, drive the epidemic.”</p> <p>Citro, a 2010 graduate of the Law School, worked in Delhi for two years as senior research officer to the United Nations special rapporteur on the right to health. He was also project manager of the <a href="">Global Health and Human Rights Database</a>, a project of the HIV/AIDS Unit of the <a href="">Lawyers Collective</a>, a nongovernmental organization in India. He worked on right-to-health issues with the United Nations, including efforts studying tuberculosis in Azerbaijan and Tajikistan.</p> <p>His co-organizers include two University of Chicago doctors, Assistant Professor of Medicine Evan Lyon and Research Fellow Kiran Raj Pandey, and attorney Mihir Mankad, health policy advisor for <a href="">Save the Children United Kingdom</a>, which promotes children’s rights around the world. The team is currently developing partnerships in India, including with the Public Health Foundation of India, Jindal Global Law School, and the Lawyers Collective.</p> <p>The University of Chicago Center in Delhi, which <a href="">opened March 29</a>, is an interdisciplinary center for research in India and southeast Asia. The University also has centers in Paris and Beijing.</p> <p>In the grant proposal, Citro and his fellow researchers described the scope of the tuberculosis epidemic. They pointed out that in 2012, there were approximately 8.6 million new cases of tuberculosis and 1.3 million deaths. That same year, more than a quarter of all global incidences of tuberculosis occurred in India, they said.</p> <p>Tuberculosis is relatively easy to prevent and treat. But for the poor and marginalized, the disease is devastating. These patients face many barriers to treatment, and even when treatment is begun, it often isn’t finished for financial or other reasons. As a result, difficult to treat drug-resistant strains of tuberculosis have developed.</p> <p>The researchers want to develop methods for reducing the devastation of tuberculosis that prioritize human rights and personal autonomy. They aim to mimic similar initiatives that made progress in the global effort to lessen the impact of HIV. Such an effort requires participation from the government, private health care providers, and pharmaceutical companies.</p> <p>“A rights-based approach has been effective in the global movement to fight HIV/AIDS in increasing access to life-saving medicines, protecting the rights of people living with HIV, and reducing stigma associated with the disease. A similar approach, using the courts, policy advocacy, and grassroots activism, can be just as successful in the fight against TB,” Citro said.</p> <p>The tuberculosis project is not the International Human Rights Clinic’s only work in India. Over Spring Break, Citro and Clinical Professor <a href="">Sital Kalantry</a>, who directs the clinic, took three students to Delhi to study housing policy. They <a href="">developed litigation and policy strategies to improve the living conditions of slum dwellers and presented their work to The Law Commission</a> of India, which is considering drafting a national housing rights bill.</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/citro">Brian Citro</a> </div> </div> </div> Wed, 16 Apr 2014 19:21:50 +0000 mheagney 21333 at Geof Stone Argues for a Journalist-Source Shield Law <div class="field field-type-text field-field-news-title"> <div class="field-items"> <div class="field-item odd"> Democracy Demands a Journalist-Source Shield Law </div> </div> </div> <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> Geoffrey R. Stone </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> The Daily Beast </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">April 15, 2014</span> </div> </div> </div> <p><em>The&nbsp;</em><em>Guardian</em><span>&nbsp;and&nbsp;</span><em>The&nbsp;</em><em>Washington Post</em><span>&nbsp;were each awarded the Pulitzer Prize for public service Monday for their reporting based on classified documents leaked by former National Security Agency contractor Edward Snowden. This will no doubt annoy many in the intelligence community who believe that Snowden,&nbsp;</span><em>The&nbsp;</em><em>Guardian</em><span>, and the&nbsp;</span><em>Post</em><span>&nbsp;have done serious damage to the national security of the United States.</span></p> <p>Unlike most disclosures of classified information, this reporting has not raised any central issues about the legitimacy or value of a journalist-source privilege, because Snowden chose to make no secret of his identity. Nonetheless, the bestowal of the Pulitzer Prize presents a good moment to reflect on the appropriate relationship between the government, the press, and source.</p> <p>The issue is particularly timely at the moment because Gabriel Schoenfeld,<strong>&nbsp;</strong>a senior fellow at the&nbsp;<a href="" target="_blank">Hudson Institute</a>&nbsp;and a former adviser to presidential candidate Mitt Romney, recently published an article in the journal&nbsp;<em>National Affairs</em>&nbsp;in which he concludes that for Congress to enact a federal journalist-source privilege would be “a bad idea.” Although I admire and respect Schoenfeld, in this, he is wrong.</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="" title=""></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/stone-g">Geoffrey R. Stone</a> </div> </div> </div> Tue, 15 Apr 2014 19:34:59 +0000 arester 21325 at Monday/Tuesday Blog Roundup <p>Eric Posner posts on <a href="" target="_self">Russia's invocation of 'civil war'</a> in Ukraine and <a href="" target="_self">shares a response</a> to his post on social security overpayments; Will Baude <a href="" target="_self">looks at a recent case</a> in which police were caught lying; and Richard Epstein discusses <a href="" target="_self">"the problems with 'equal pay.'"</a></p><div class="feedflare"> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> <a href=""><img src="" border="0"></img></a> </div><img src="" height="1" width="1"/> Tue, 15 Apr 2014 19:22:24 +0000 UChicagoLaw,2003:post-6a00d8341c031153ef01a73dab52c7970d Op-Ed on Archaeology Law in LA Times by Adam Wallwork '13 <div class="field field-type-text field-field-aa-source"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Original source:&nbsp;</div> <p><a href=",0,2487941.story" title=",0,2487941.story"></a></p> </div> </div> </div> <p>From the LA Times:</p> <blockquote><p><a id="PLCUL000187" class="taxInlineTagLink" title="The Getty" href="">The Getty Center</a>&nbsp;in Los Angeles, the Metropolitan Museum in New York and&nbsp;<a id="ORCRP014166" class="taxInlineTagLink" title="Sotheby&#039;s Holdings Incorporated" href="">Sotheby's</a>&nbsp;auction house — these are just some of the major institutions that have been forced to repatriate artworks in recent years. Italy, Egypt, Greece, Turkey and Cambodia have all successfully used their cultural property laws to secure the return of important antiquities from collectors and museums.</p> <p>Treasures from King Tutankhamen's tomb that had been in the Met's collection for almost a century went back to Egypt. In 2006, the Met agreed to return the Euphronios krater, a masterpiece Greek urn that had been a museum draw since 1972. In 2007, the Getty agreed to return 40 objects to Italy, including a marble Aphrodite, in the midst of looting scandals. And in December, Sotheby's and a private owner agreed to return an ancient Khmer statue of a warrior, pulled from auction two years before, to Cambodia.</p> <p>Cultural property, or patrimony, laws limit the transfer of cultural property outside the source country's territory, including outright export prohibitions and national ownership laws. Most art historians, archaeologists, museum officials and policymakers portray cultural property laws in general as invaluable tools for counteracting the ugly legacy of Western cultural imperialism.</p> </blockquote> <p><a href=",0,2487941.story">Read the rest of the article</a>.</p> Tue, 15 Apr 2014 19:05:36 +0000 arester 21324 at Workshopping for Success <div class="field field-type-text field-field-alumnimagauthor"> <div class="field-items"> <div class="field-item odd"> <div class="field-label-inline-first"> Author:&nbsp;</div> Robin I. Mordfin </div> </div> </div> <div class="field field-type-text field-field-lead"> <div class="field-items"> <div class="field-item odd"> <p>Generations of faculty and students have wrangled with cutting-edge scholarship at the Law School’s many and varied academic workshops.</p> </div> </div> </div> <p>The University of Chicago Law School was a seminal force in using workshops to develop ideas and to perfect scholarly papers and articles. Today, workshops are ubiquitous on American campuses and have become essential to the academic process, but it was the Law and Economics giants at the University of Chicago who established the practice of bringing the best minds of different disciplines together to evaluate and encourage new work in an accessible, defined format.</p> <p>The workshop phenomenon began in the autumn of 1960 when Aaron Director and George Stigler began running the Workshop in Industrial Organization. Director had founded the <em><a href="">Journal of Law and Economics</a></em> two years earlier and saw the workshop as a way for those interested in publishing to hone and perfect their articles. The workshop was held several times over the academic year and studied “the structure and behavior of industries, with special emphasis on the role of government and regulation.”</p> <p>While the workshop was run by and held at the Law School, a healthy contingent of the economics faculty from across the Midway attended on a regular basis. In fact, according to Judge <a href="">Richard Posner</a>, senior lecturer in law, there were always more economics faculty present as it was seen as an economics workshop. Academics from leading universities as well as the University of Chicago were invited to the workshop to present nearly finished or in-progress papers for discussion and critique by the University of Chicago faculty. Drafts would be circulated a week or two in advance and would be closely read by everyone attending, including a handful of specially invited students, usually 3Ls. That week’s presenter would give a short talk about his work and would then have a little under two hours to hear comments and answer questions from the audience.</p> <p>“It was very tough,” commented Posner. “In fact, it was brutal. Stigler was really smart, and he was very hard on his people, but very incisive. Ronald Coase and Aaron Director would add their thoughts, which were also very insightful. The whole thing was excellent.”</p> <p>In this period, the University of Chicago had no competition in Law and Economics. It was the first institution where researchers began applying economic principles to social institutions, and the workshop was key to the development of the discipline.</p> <p>Today the historic harshness of that workshop has taken on nearly mythic proportions, but the level of difficulty for presenters at the Workshop in Industrial Organization was apparently quite unique.</p> <p>“Aaron Director would rip out your entrails and then ask you why they were misshapen,” noted <a href="">Richard Epstein</a>, James Parker Hall Distinguished Service Professor Emeritus. “I learned a lot more going to those workshops and not being the target. A lot of us who attended felt that way; we had a ‘glad it’s not me’ attitude.”</p> <p>Gradually, the number of Law School faculty who attended the Workshop grew, and together with the economists, they would work on substantial issues such as the regulation of the airline industry, a topic that required experts in both disciplines. But according to Epstein, by the late 1970s, the economists had stopped attending.</p> <p>“They were going more techie, using equations for everything, and did not have an interest in what we had to say,” Epstein added. “But that did open things up more for the people at the Law School to really make a difference in Law and Economics. But the workshop itself didn’t change much, it was still like Roman gladiator combat.”</p> <p>As time passed, a variety of professors ran the workshop, including Ronald Coase, <a href="">William Landes</a>, now Clifton R. Musser Professor Emeritus of Law and Economics, and University Professor <a href="">Gary Becker</a>. But the goal remained the same, to develop strong research in Law and Economics. Of course, after a while, the obvious success of the workshop, and the strong work it turned out, began to interest other faculty members and eventually led to the development of other workshops.</p> <p>Although the Workshop in Industrial Organization was long viewed as a workshop in Law and Economics, the titled Workshop in Law and Economics was actually formed by Posner and Landes in 1974. This workshop was “devoted to the intensive examination of selected problems in the application of economic reasoning to legal questions in such fields as property law, criminal procedure, accident law, and antitrust law.” The group met every other week throughout the academic year, and for the first time students were invited to enroll and could receive six credits for completing a substantial paper. Industrial Organization was run for the last time in the 1980–81 year.</p> <p>“The workshop was a pressure cooker, and when I arrived in 1972 it sent a very clear message of being seen and not heard. Of course, there were these wonderfully impossible people—George Stigler and his crowd of geniuses who were not particularly good at developing protégés,” Epstein said. “But today there is a much stronger bend toward parity, everyone participates. And it is much less of a pressure cooker experience. It is still a sink-or-swim situation, but if you can swim, you can soar.”</p> <p>Law and Economics is the longest-running workshop at the Law School and holds such an esteemed reputation that it attracts superstars of the academic world. Among the multidisciplinary experts who have presented papers in the last few decades are Yale’s George Priest and Alan Schwartz, Harvard’s Steven Shavell and Louis Kaplow, along with a slew of Chicago luminaries including <a href="">Saul Levmore</a>, William B. Graham Distinguished Service Professor; Richard Epstein; <a href="">Daniel Fischel</a>, Lee and Brena Freeman Professor of Law Emeritus; and Gary Becker. Landes and Posner ran the workshop until 1990, when the faculty for the course began to change more regularly. <a href="">Douglas Baird</a>, now Harry A. Bigelow Distinguished Service Professor; Daniel Fischel; <a href="">Randal Picker</a>, now James Parker Hill Distinguished Service Professor; <a href="">David Weisbach</a>, Walter J. Blum Professor of Law; <a href="">Lisa Bernstein</a>, Wilson-Dickinson Professor of Law; <a href="">Omri Ben-Shahar</a>, Leo and Eileen Herzel Professor of Law; Lecturer in Law <a href="">Scott Davis</a>; and Assistant Professor <a href="">William Hubbard</a> have all taken the opportunity to help students and faculty to make the most of their research.</p> <p>“Law and Economics set the stage for the workshops we have today,” explained <a href="">David Strauss</a>, Gerald Ratner Distinguished Service Professor of Law. “The workshops really serve three purposes. First, there is the pedagogical purpose, in which the students get to see the real sausage-making process of scholarship. Second, they are a wonderful way to bring to the Law School ideas from other schools. And third, they provide yet another way for faculty to get together to question ideas and to spin off conversations that lead to more ideas to investigate.”</p> <p>Professors began to see the benefits of creating workshops in their areas of expertise: they would provide opportunities to meet with leaders in their field while reading and critiquing their work and would also provide opportunities to teach a new generation the art of legal scholarship. For example, Geoffrey Miller started the Workshop in Legal Theory in the Fall of 1989. The workshop, according to the Law School <em>Announcements</em>, looked at “a variety of selected topics in the area of legal theory. Among other subjects that may be addressed are the role of self-interest in legal theory: republican, interest-group, and pluralist theories of legislation; the legal and moral standing of lies, omissions, and partial truths; legal anthropology; and the relations among legal, theological, and literary principles of interpretation.”</p> <p>But what truly set the Legal Theory apart from the other workshops offered at this time was that part of the intent of the workshop was student involvement. At each of the six sessions at which papers were to be presented, students were expected to write one- or two-page critiques to bring to class. They were also required to write a substantive paper on an area of legal theory.</p> <p>“The idea behind was to have an interdisciplinary workshop that involved disciplines other than economics,” said Strauss, who took over Legal Theory in 1994. “So we invited philosophers, I think some literary critics, political scientists, and political theorists, as well as legal scholars whose work drew on those disciplines.</p> <p>“When the Law and Philosophy workshop started, it took over much of that terrain, and around that time, we converted the Legal Theory Workshop into the current Constitutional Law Workshop,” Strauss continued. “The idea was to shift the emphasis somewhat more toward law and away from the associated disciplines, just because those other disciplines were covered well by other workshops. But one interesting aspect of this is that, over time, legal scholarship has become more and more interdisciplinary, so that even a law-focused workshop, like Con Law, will bring in lots of people whose work is influenced by other disciplines.”</p> <p><a href="">The Workshop in Law and Philosophy</a> was inaugurated in the Spring Quarter of 1994 when <a href="">Martha Nussbaum</a>, Ernst Freund Distinguished Service Professor of Law and Ethics, was visiting faculty and was funded by the university’s new Humanities Center, now known as the <a href="">Franke Institute</a>. “The basic idea was that law and philosophy usually intersect on a very narrow terrain, that of technical jurisprudence; and yet the law uses many concepts that philosophers have investigated, and we thought that both disciplines would profit from collaborative investigation of the way these concepts work in law and the ways in which they are analyzed in philosophy,” Nussbaum explained. “The initial group was faculty only, and the first time we tried it out we had sessions on a variety of different concepts, but when I moved to Chicago full-time, we began the system of holding the workshops on a single topic throughout the year.”</p> <p>Law and Philosophy began accepting students in 1999, and the speakers for the workshop have come not only from the University of Chicago but also from philosophy and law faculty from Northwestern University. Topics investigated in the past include autonomy, equality, privacy, race, gender and family, and global equality. In 2007, <a href="">Brian Leiter</a>, Karl N. Llewellyn Professor of Jurisprudence, joined the Law School faculty and began supervising the workshop with Nussbaum. This year’s topic is life and death.</p> <p>Strauss and Adrian Vermeule started supervising the <a href="">Workshop in Constitutional Law</a> in the Fall of 1999. The workshop exposed students to “to recent academic work in constitutional law and the theory of constitutional interpretation.” Strauss’s aspiration is to create a rigorous but civilized environment, where paper are read and considered seriously and where good questions are asked and answered.</p> <p>Clearly, the notion that workshops should be encouraging is something of a response to the harsh reputation established by the Workshop in Industrial Organization. But Strauss is hardly the only one looking to make his workshop civilized.</p> <p>“Today, Chicago has a reputation for being tough but civil at the same time, and it is nice that our workshops have now developed both reputations,” noted Professor of Law <a href="">Alison LaCroix</a>. “Having presented at workshops at other schools, I think it is clear that we are modeling to students how to have civil and rigorous academic discourse. Sometimes other schools and faculty set up students to ask questions and the presenter is merely a foil. They just attack and are not interested in actually improving the work. In other cases, workshop attendees have not read the paper. But Chicago has a very strong norm that everyone comes to the workshop having read the paper, which creates a much more collaborative environment.”</p> <p>A number of other workshops formed over the next decade. <a href="">Thomas Ginsburg</a>, Leo Spitz Professor of International Law, and <a href="">Eric Posner</a>, Kirkland and Ellis Distinguished Service Professor, started the <a href="">Workshop in International and Comparative Law</a> in 2008. It meets four times in the first quarter every other year and offers students the opportunity to read new research in the field.</p> <p>“International law is the most important area of law in the world now because of globalization, and we would be doing our students and faculty a disservice if we are not engaging in the topic,” said Ginsburg. “These days, you cannot advise clients on antitrust, arbitration, or even divorce in Peoria without a knowledge of international law, because everything has global strings.”</p> <p>In 2008, <a href="">Mary Anne Case</a>, Arnold I. Shure Professor of Law, founded the <a href="">Regulation of Family, Sex, and Gender Workshop</a>, which looks at these issues through a feminist theory lens. “We like to show the Law and Economics people how their methods can be used to consider a variety of different topics that they might not have thought about,” Case noted. “The presenters I bring in are all experts in the field, but they are not all lawyers. I invite people who specialize in different areas, like history. But their work is always relevant to the law.”</p> <p>That year veteran workshop supervisors Landes and Posner started the <a href="">Workshop in Judicial Behavior</a>, which provides students “with the opportunity to read and analyze cutting-edge scholarship that focuses on how judges reach their decisions.” The workshop accepts a limited number of students from the Law School and from Northwestern University Law School. “We try to invite speakers who are mostly, but not all, academics, who have something interesting to say about judicial behavior,” Posner said.</p> <p>A group of other workshops that concentrated on public law also started in this period, including American Legal History, Crime and Punishment, and Law and Politics. These workshops brought even more new faculty into the workshop world.</p> <p>“The idea was to hear about cutting-edge research at the forefront of the field, and there is no better way to do that than to invite accomplished scholars to present their most recent work,” explained <a href="">Jonathan Masur</a>, deputy dean and professor of law, who spent his first couple of years as a member of the faculty helping to run the Law and Politics Workshop, which looked at the legislative process, electoral structures, and constitutional constraints on political institutions.</p> <p>But with so many new workshops, getting faculty to attend them all was becoming something of a problem. In 2009, these three workshops and Legal Theory were combined in the <a href="">Public Law and Legal Theory Workshop</a>.</p> <p>“I remember talking to several faculty members one day and saying that there were just too many workshops. That was when we decided to combine a few of them into one workshop,” noted LaCroix, who had been running the history workshop. “The beauty of the current workshop is that it is broad enough to absorb all these ideas and that it is both lunch and intellectual stimulation. It’s broad enough to absorb all these workshops, and it allows us to invite all kinds of academics—not just lawyers.</p> <p>“It’s also nice to have this workshop because while the Law School is mostly known for Law and Economics, we have an incredibly strong public law faculty. We have experts in voting rights, democracy, con law, administrative law—and this offers us the opportunity to stay connected to colleagues at other schools.”</p> <p>Part of the growth of popularity in workshops around the nation is the changes that technology has brought to the development of scholarly work. With the advent of SSRN and other databases, everyone in a field has already read a paper by the time it is published. That exposure brings commentary and critiquing previously not available until after an article appeared in a journal. The workshop process can offer researchers constructive feedback before a paper appears online or in print.</p> <p>Today, workshops are an integral part of how law professors are hired. Many schools evaluate candidates by how they perform in a workshop environment because it gives the faculty the opportunity to see how candidates approach scholarship and how they perform in a collaborative intellectual environment.</p> <p>“In 2006 or 2007, Eric Posner invited me to give a paper at his workshop, and when I arrived Saul Levmore, who was dean at the time, was sitting in the room,” Ginsburg said. “I gave the paper and went home. Then I got a phone call to come back.”</p> <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="" /><a href="" type="image/jpeg; length=46115">workshop.jpg</a></div> </div> </div> </div> <div class="field field-type-filefield field-field-thumbnail"> <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="" /><a href="" type="image/jpeg; length=12055">workshopthumb.jpg</a></div> </div> </div> </div> Tue, 15 Apr 2014 16:21:44 +0000 arester 21322 at Law School Federalist Society Chapter to Host National Convention <div class="field field-type-text field-field-news-author"> <div class="field-items"> <div class="field-item odd"> Meredith Heagney </div> </div> </div> <div class="field field-type-text field-field-news-publication"> <div class="field-items"> <div class="field-item odd"> Law School Office of Communications </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">April 15, 2014</span> </div> </div> </div> <p>The Law School chapter of the <a href="">Federalist Society for Law and Public Policy Studies</a> has been selected by the <a href="">national organization</a> to host the 2015 <a href="">Federalist Society Student Symposium</a> under the theme “Law and Innovation.”</p> <p>The Law School chapter emerged from a competitive field to host the symposium, which is expected to draw about 500 students for a two-day event in late February. The board will finalize the date, speakers, schedule, and other specifics in the coming months.</p> <p>“The University of Chicago Law School has been a very strong and very good chapter at doing the core thing we want to do, which is fostering a vigorous discussion of ideas,” said <a href="">Eugene Meyer</a>, president of the Federalist Society, based in Washington, D.C. “The topic of innovation and how law can promote it is incredibly important to society, and we’re confident the Chicago chapter will do a great job putting a thought-provoking program together.”</p> <p>Kathryn Bi, ’15, symposium chair, said the chapter leadership was inspired to talk about innovation and the law because of the changing realities of business and technology. The symposium will give the country’s future leaders a chance to talk about how America can maintain its “innovation edge,” through favorable political, regulatory, and business environments.</p> <p>“This is a great chance to showcase our strengths in law and economics,” Bi said. “Our faculty has long been on the leading edge of analyzing the systemic effects of regulatory and policy decisions.”</p> <p>Professor <a href="">Todd Henderson</a>, the group’s adviser, said he was proud of the leadership team for “their hard work and dedication” in earning the right to host the symposium, which was last held at the Law School in 1999.</p> <p>“The theme of ‘Law and Innovation’ is especially fitting, since much that defines our school is about innovation,” Henderson said. “Law and economics, the most innovative and influential movement in law in the past 50 years, was largely started and defined at the Law School, and we continue to be among the leading innovators in this field and others in law.”</p> <p>The student chapter, which now numbers more than 100 members, was established in 1980 by Lee Liberman Otis and David McIntosh as one of the three founding chapters of the Federalist Society, along with Harvard and Yale law schools. The founders “questioned the prevailing notion that big government could solve our country’s social, political, and economic problems,” according to a chapter history. The students teamed with conservative professors, including Antonin Scalia, <a href="">Frank Easterbrook</a>, <a href="">Richard Posner</a>, and <a href="">Richard Epstein</a> to found the organization.</p> <p>Bi said today’s student chapter was indebted to Henderson and other faculty who offered help with preparing the bid, including <a href="">William Baude</a>, <a href="">Adam Mortara</a>, and Epstein. Dean of Students Amy Gardner and many Federalist Society alumni lent their support as well. “We’re very grateful to have alumni, administrators, and faculty who actively support our chapter,” Bi said.</p> <p>One of those supportive alumni is <a href="">Allyson Ho, ’00</a>, who organized the last symposium at the Law School 15 years ago. Now she is co-chair of the appellate practice at Morgan, Lewis &amp; Bockius LLP in Texas. She was thrilled to hear the symposium was coming back to her alma mater.</p> <p>“This is an outstanding opportunity not only for the Chicago chapter, but also for the Law School as a whole, to host some of the leading legal minds in the academy, in government, and in public service,” she said.</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/henderson">M. Todd Henderson</a> </div> <div class="field-item even"> <div class="field-label-inline"> Faculty:&nbsp;</div> <a href="/faculty/epstein">Richard A. Epstein</a> </div> <div class="field-item odd"> <div class="field-label-inline"> Faculty:&nbsp;</div>