The University of Chicago Law School Faculty Blog

Geof Stone on The Roberts Court

On Oct. 1st, 175 Law School Alumni and guests gathered for the annual First Monday lecture at Chicago's University Club (similar lectures were also held in Washington and New York). This year's talk, by Geoffrey Stone, was "The Roberts Court: STARE WHAT?" A video of the event appears after the jump (you'll need to have the  Quicktime plugin installed on your browser).

Don't want to watch online, but want to download this talk to your portable media player? Just right-click on one of these links and save the file to your computer:
Video (.mov) | Audio (.mp3)

David Currie on Military Tribunals

Continuing our series of posts remembering David Currie, we'd like to direct you to a recording of a panel that Professor Currie participated in, entitled "The Legitimacy of Military Tribunals," in 2002. In his presentation, Professor Currie looked at military tribunals during the Civil War and World War II to ask whether such tribunals are constitutional. The recording was archived by the Fathom academic consortium.

David Currie and the Green Bag

As we remember David Currie this week, we've been thinking a lot about his scholarship and teaching. Among his projects in the past decade has been his involvement with the Green Bag 2d, an "entertaining journal of law" created by his students shortly after their graduation from the Law School. Professor Currie has served on the board of advisors of the Green Bag since its inception, and the Green Bag founders acknowledge him as their inspiration in creating it.

A lovely tribute to Professor Currie currently appears on the Green Bag's home page, along with links to two of his celebrated articles from that publications - "Green Bags" (with the inagural citation of 1 Green Bag 2d 1) and "Choosing the Pilot: Proposed Amendments to the Presidential Selection Process, 1809-29," an excerpt from The Jeffersonians volume of his much-lauded Constitution in Congress series.  Both pieces are, needless to say, well worth your time.

David P. Currie, 1936-2007

It is our terribly sad duty to inform you of the death of David Currie on October 15, 2007. Professor Currie had been ill, and a recent turn for the worse brought about hospitalization and his sudden passing.

This is a very sad day for the Law School. Professor Currie taught here for some forty-five years. In that time he did great work, taught many generations of students in magnificent fashion, and exhibited kindness and common sense from the first day to the last. In many ways, David Currie represented all that was good about us. He was a fabulously successful teacher who made his mark not by making things too easy for his students (or colleagues) but rather by holding us all to the same high standards to which he held himself. That he did this with warmth and a twinkle and an occasional reference to Gilbert & Sullivan make his passing especially sad, or perhaps inspiring.

A formal obituary is available at the Law School's website. We hope all who knew him find some comfort in good memories. Those wishing to spend some time with Professor Currie's words today may want to read his address on the occasion of the Law School's Centennial. Those wishing to hear his voice can listen to his wonderful reading of the Constitution of the United States. All are welcome to share their memories of this extraordinary teacher and scholar in the comments.

Michelle Goodwin on the Trade in Human Body Parts

Last week, Visiting Professor of Law Michelle Goodwin was interviewed on WHYY's "Radio Times with Marty Moss-Coane." She discussed the case of three Philadelphia funeral home directors who were recently charged with selling bones and tissues from the deceased without permission from the donor or his or her family, as well as the growing legitimate and black market trade in human body parts. You can listen to the discussion in RealAudio here.

Law and Politics Book Review Looks at Geof Stone's "War and Liberty"

In the Law and Politics Book Review, published by the Law and Courts Section of the American Political Science Association, Torin Monahan of Arizona State University's School of Justice and Social Inquiry reviews Geof Stone's recent book,  WAR AND LIBERTY: AN AMERICAN DILEMMA: 1790 TO THE PRESENT.Monahan writes that the book "offers one effective means of encouraging discussion of [challenges to the preservation of civil liberties and an active civil society], especially in classroom environments, and fostering productive critique of current practices in light of similar (and dissimilar) ones in the past."

Susan Bandes Mentioned on Sentencing Law and Policy

Douglas Berman's Sentencing Law and Policy blog links today to a paper by Susan Bandes, who is a visiting professor at Chicago this year, called "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty." See what folks over at SL&P are saying about her paper here.

Update: Lawrence Solum's Legal Theory Blog has also picked it up.

Sunstein on "Causation in Tort"

The ever-prolific Cass Sunstein has a new book out from Harvard University Press, Worst-Case Scenarios; he also recently added a paper to SSRN, written with William Meadow of the University of Chicago Children's Hospital, entitled "Causation in Tort: General Populations Vs. Individual Cases." The abstract reads as follows:

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.

Henderson on Dissent

The Supreme Court term started last week, and the docket includes many interesting and controversial cases. A safe prediction is that there will be many cases in which the Court splits 5-4 firmly along ideological lines. We take it for granted that justices can dissent, issue official separate opinions, and that the public vote of the justices is revealed, but this was not always so. In a new paper recently posted to SSRN, Professor Henderson traces the history of opinion delivery practices in England and the United States in search of an explanation for the current practice of dissent. The history shows that the discourse is about power, and that courts adapt their opinion delivery practices to achieve a greater role over dispute resolution.

From 'Seriatim' to Consensus and Back Again: A Theory of Dissent
M. Todd Henderson
University of Chicago - Law School
October 2007
U of Chicago Law & Economics, Olin Working Paper No. 263

Abstract:      
Why do judges dissent? There are several conventional answers. One is that dissents communicate legal theories to future judges, litigants, or politicians in the hope of becoming law later. Another is that dissents reveal the internal deliberation of courts, thus increasing their legitimacy in a democratic society. Both of these suggest that dissent improves the law making process.

Other theories are potentially less benign. For example, dissents are inevitable given the ego and life-tenure of Article III judges or dissents enable majorities to be bolder in their holdings, thereby creating more law than is necessary. Chief Justice Roberts adheres to this latter view, and therefore has called for more unanimity on the Court. Before we can say whether Roberts's goal is worth pursuing, we must have a full account of the reason for dissent.

This paper traces the history of judicial discourse to understand the reason for dissent. Over the past several hundred years, the Supreme Court and its predecessors in England have sometimes issued dissents and sometimes spoken largely with one voice. A specific change in the delivery of opinions has happened at least three times on a grand scale: (1) Chief Justice Mansfield's change from traditional seriatim opinions to an “opinion of the court” in England circa 1760; (2) a similar change in the United States Supreme Court upon the ascendancy of John Marshall to Chief Justice in 1801; and (3) the development of a tradition of writing separately during the New Deal era of the Supreme Court, which has persisted to the present.

This paper shows that in each case the change in judicial discourse was made in an attempt to increase the power of law courts over other forms of dispute resolution. For example, Mansfield and Marshall moved from seriatim opinions to an “opinion of the court” to bring certainty to decisions and thereby increase the power of their courts, whereas the modern move away from unanimity is about achieving the same goal, but by using dissent to placate losers and protect the Court's jurisdiction over politically contentious issues like abortion or affirmative action. In short, history shows that judicial discourse, be it unanimity or seriatim or something in the middle, reflects court power, and those who want to change court power did so through a change in judicial discourse.

The Faculty Podcast Widget

The latest in our series of improvements to the blog should now be visible in the sidebar to your right: The Faculty Podcast Widget (with thanks to the folks at FeedBurner and SpringWidgets). Now, you might be wondering, "What the heck is a widget?" Essentially, it's a little mini-mp3 player that will allow you to browse and play our many (over 40!) Faculty Podcasts quickly and easily on every page of the blog you're reading right now. Best of all, the widget is portable, which means you can grab it and embed it on your own blog, Facebook page, website, or even your desktop (check out those little buttons at the bottom of the widget). Enjoy!