The University of Chicago Law School Faculty Blog

Roberts, Alito and the Rule of Law

For the Supreme Court of the United States, this will be remembered as the year of intellectual dishonesty. In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis.

John Roberts assured the Senate Judiciary Committee that judges must “be bound down by rules and precedents.” Invoking Alexander Hamilton and James Madison, he affirmed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability,” and “integrity in the judicial process.” Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly “unworkable” over time. But in general, “a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

Four New Horsemen? Of Minimalists and Visionaries

(The following is a mildly edited version of an oped that appeared today on the Washington Post website.) The most intriguing development on the Supreme Court this term has been the emergence of a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists. Justices Antonin Scalia and Clarence Thomas, the visionaries, are not merely predictable in their votes; their sweeping opinions call for fundamental changes in constitutional law. They do not greatly respect stare decisis. Chief Justice John Roberts and Justice Samuel Alito, the minimalists, have also turned out to be predictable in their votes. But their opinions tend to be cautious, narrow and unambitious. They are reluctant to reject the court's own precedents, and attempt to rule in a way that preserves them.

Justice Kennedy and the School District Cases

There are two very important ideas that emerge from Justice Kennedy's concurring opinion in Parents Involved, the landmark school desegregation opinion handed down today.  Because of the way the remaining justices split their votes, it's Justice Kennedy's concurrence that really tells us what "the law" says going forward.  Kennedy's first important idea is that school segregation and racial imbalance is no longer a white-nonwhite dichotomy.  In a city with substantial racial diversity, a school with 50% white students, 50% African American students, and no Asian or Latino students, is not racially balanced.  The defendant school districts lumped all students of color together in assessing racial imbalance, and Seattle did not permit individual students to be classified as members of multiple racial groups for school assignment purposes.  Justice Kennedy sensibly argues that school districts must do better, and use finer-grained racial classifications if they are to use them at all.  I believe that this part of Kennedy's opinion will be uncontroversial within a few years, if it isn't already.

Justice Kennedy's second idea ought to be more controversial, and it is certainly more intellectually ambitious.

Doctor Who?: Reason Comes to Minimum RPM in Leegin

Like the Doctor’s tardis, some Supreme Court cases are “transcendentally dimensional”: bigger (or smaller) on the inside than the appear from the outside. I have never been sure of the exact “size” of the Supreme Court’s 1911 decision in Dr. Miles, but I no longer need to sort through that. This morning, in a 5-4 decision authored by Justice Kennedy, in Leegin Creative Leather Products v. PSKS, the Supreme Court overruled Dr. Miles and determined that antitrust actions relating to minimum resale price maintenance should be evaluated under the rule of reason. (Minimum RPM means that the manufacturer requires a retailer to agree to sell the manufacturer’s goods for at least a particular price. Sony might require Best Buy to sell its new HD rear-projection TV—I have been doing some looking—for at least $1500.) This was exactly what I predicted before when the Supreme Court took the case, so this isn’t a surprise. That said, the oral argument indicated that the decision would be close and that too was right. We get another 5-4, and like the other cases at the end of this Term, you can probably guess the line-up.

Copying on the Internet

This is one of a series of posts; the last post was here.

***

So far, the Internet has meant different things to text, video and music. The Internet is the perfect device for copying a book. Stick the book into the Internet, press a button, and out comes a copy, just like a photocopying machine. That sentence probably didn’t seem to make much sense, but I think that it is right. Consider Harry Potter and the Half-Blood Prince, book number six in J.K. Rowling’s planned seven-book series. Leading books like HP VI are usually released simultaneously in many formats: standard hard cover; audio (both CD and cassette); a large-print version; and more recently several ebook formats. Same text, but different readers can experience the work in the format that best matches them.

Rowling declined to release an electronic version of the text. Hard-core Harry Potter fans wanted a searchable version of the text. Rowling was thought to have left clues scattered throughout the text about Harry’s eventual fate, and the Potterphiles wanted to find them. Reading the text was one thing, searching it another. But without an electronic version of the text—all 652 pages of it—how could they do that?

Sicko and Health Care Reform

The new Michael Moore movie is provocative. It reminds me of Al Gore's "An Inconvenient Truth" and then also Morgan Spurlock's "Super Size Me." These are manipulative movies with single-minded aims and characters. They can be very annoying to watch, especially as the enthusiastic audience, in attendance at the sneak preview of Sicko that I patronized, cheers for the sorry citizens who have bad results under our current health care system and gasps in horror at the evil insurers. The policy argument could be much, much better. Moore makes very little of the enormous cost of our system. He loves showing the audience that there is no billing department in the French and Canadian hospitals he visits, but does not bother to point out that a substantial fraction of our costs goes to administration, including billing. The insurance carriers are made out to be evil when they deny coverage, but it would have been much more interesting to try and see whether the "experimental" treatments denied would indeed have been undertaken in France or Canada. Part of the movie makes us out to be ungenerous, but then then the better part begins to get at the fact that we have poor overall performace for the resources we do spend. The funniest and most provocative part of the movie comes toward the end, when Moore takes some of the sad cases from the U.S. and seeks help in Cuba. For an annoying, anti-intellectual, biased, and manipulative documentary, it is finally entertaining and provocative. It is hardly the best thing that could have been done in favor of universal health care but, like the Al Gore movie, it just might make more Americans care about the subject, and begin to ask the right questions.

The Hoax

Here is the text of an oped I received the other day from a climate change skeptic. I reprint it here because it seems to capture a widespread view. (Or is this post itself a parody, or a hoax, attempting to caricature, and thus capture the essence of, a widespread view? Let the reader decide.)

The Global Warming Hoax

Global warming isn't real. It's a hoax.

"They" say the world is getting warmer. Tell that to the people of Alaska. In Alaska, it's too cold.

I know someone in Anchorage who uses the heater all the time, because it's freezing there.

It's cold in Moscow too. And what about Iceland?

Once, the scientists said it would be colder. Now, the scientists say it will be hotter. They keep going back and forth.

The world is so big, it couldn't get that hot, all of a sudden. They say a little pollution will make everything hotter. That's impossible.

The world is too big for that.

Does a fire make a beach much hotter? No. Even a fire can't do that. How can people make the whole planet hot?

Little schoolchildren know that on some days it's cold, and on other days it's hot. You can't predict the weather.

Would you rather starve, because of all the money wasted on this hoax, or be normal, because of the weather?

When the world is so big, let's have liberty and prosperity, not a hoax.

Good for Microsoft, Good for Us?

Good for Microsoft. Late yesterday, the Department of Justice posted on its website its most recent joint status report regarding compliance with the final judgments entered in the federal government action against Microsoft. The new report describes an agreement by Microsoft to revamp how Vista approaches desktop search. Google has contended that Microsoft’s approach to desktop search in Vista creates a barrier to entry for competing desktop search products. The new agreement should resolve this complaint and facilitate greater competition in desktop search. Good for Microsoft and good for us.

Regulating the Cloud: Warshak v. United States

We are once again changing how we organize computers. In the past, we moved from mainframes to mini computers to freestanding personal computers. The introduction of ubiquitous networks tying together these computers has had important consequences in area after area (I discuss this generally here in the context of cyber-security and more specifically for copyright here).

We are now moving towards a cloud organization for data. Some content may be stored locally on your machine, while other content—content that you in some powerful sense think belongs to you—will be stored remotely. Where actually? You won’t have a clue. For those data—data stored in the cloud—we need to define the respective rights of all of those with access to the data. I have blogged on this before in the context of data portability. The recent tussle between Google and the European Union over how long Google would keep search data is another example (Google has revised its practices and will now keep data for only 18 months rather than two years). These are the front lines of the law of cloud computing.

Today, the Sixth Circuit issued a decision in Warshak v. United States that addresses Fourth Amendment rights for remotely stored e-mail. (Hat tip: Orin Kerr.) This is another step on what will be a path of increasing interest and difficulty: how will we regulate the cloud?

Curtis Bradley - Military Detention in the War on Terrorism

If you read this blog regularly, you know that we don't really shy away from controversial topics. On May 1, 2007, Curtis Bradley, who was at the time a Visiting Professor here and is more regularly the Richard and Marcy Horvitz Professor of Law at Duke University Law School, delivered a talk here entitled "Military Detention in the War on Terrorism." Want to listen? Click here. Want to opine? That's what the comments are for...