The University of Chicago Law School Faculty Blog

Real Homeland Security

What is it that we Americans stand for? What is it about our nation that makes us most proud? What is it that makes other nations of the world respect and admire and emulate us? It is our unparalleled commitment to personal freedom and to the dignity of the individual. It is captured in our guarantee of freedom of speech, freedom of religion, due process of law, equal protection of the law, and freedom from unreasonable searches and seizures and cruel and unusual punishments. We are the beacon to the world because we aspire to be good and fair and just to one another. That is who we are and who we want to be.

We do not always live up to our aspirations. At times, we have embarrassed ourselves and tarnished our image. We have brutally persecuted dissenters, interned innocent persons, suspended habeas corpus, intrusively investigated innocent individuals and recklessly invaded reasonable expectations of privacy, we have even tortured our fellow human beings. We are a well-meaning but imperfect nation. We strive to be good, but we are only as good as our people, our leaders, and our institutions enable us to be.

Presidents have a wide range of official advisors, each with a designated portfolio. There is a Secretary of Defense, a Secretary of Labor, a Secretary of Energy, a National Security Advisor, and a Domestic Policy Advisor, to name just a few. The next president should create a brand new position, which should become a permanent part of the Executive Branch in the future: a Civil Liberties Advisor.

Audio/Video: Richard Epstein Asks, "Is the Administrative State Consistent with the Rule of Law?"

On January 29, the always entertaining Richard Epstein presented a Chicago's Best Ideas talk entitled "Is the Administrative State Consistent with the Rule of Law?" Video of the talk is embedded below, or you may download a .mov file or .mp3 file.

Here is the descriptive blurb that was on the poster for the talk:

Without question, the most distinctive feature of the modern social democratic state is the rise of administrative agencies, which at the federal level function as a shadowy Fourth Branch of government that fits uneasily into our constitutional scheme of separation of powers, and which at the state level oversee vast swaths of economic activity.

Defenders of the current administrative setup claim the elaborate procedural safeguards built into today’s administrative law effectively blunt the risk of arbitrary power, whose exercise has always been in tension with the rule of law. In this talk, Professor Epstein will explain why he thinks the massive discretion routinely confided in administrative agencies is in fact inconsistent with the rule of law on a wide range of matters dealing with economic liberties, tort liability, private property, and the institutional autonomy of voluntary associations.

Audio: Randy Picker's Hooding Ceremony Address

Friday was graduation day here at the Law School, so please join us in wishing heartfelt congratulations to the Class of 2008 and to their families. As is tradition, along with the University's graduation ceremony, the Law School hosted a hooding ceremony in Rockefeller Chapel. During this ceremony, graduates receive the distinctive purple hood that is worn during formal academic events by those who hold degrees in law.

This year's faculty speaker at the hooding ceremony was Randy Picker, Paul H. and Theo Leffmann Professor of Commercial Law, and a frequent contributor to this blog. You can listen to Randy's address here; he was introduced by Dean Saul Levmore.

Update: A transcript of Professor Picker's speech is also available.

Cellphone Fines

Why do we see fines for littering but but not for cellphones ringing in the middle of movies and concerts? I'm afraid the question is better than any answer I have to offer. A private tort suit against the rude and negligent cellphone owner is plausible, but damages are difficult to determine, and the nuisance, though I use the word sloppily, affects many people. The apparent absence of a negligence suit might be attributed to this problem of injury and damage assessment. But the same could be said  about a fellow who "negligently" lets a paper bag and its contents fly out the window of his car. In that setting, we resort to fines rather than torts, though that must be in part because the littering is on public property. The cellphone wrong is often on private property, and littering is normally a misdemeanor on public property.

Empirical Scholarship and the Future of the Voting Rights Act

Over on Rick Hasen's Election Law Blog I've written a post about empirical legal scholarship and the future of the Voting Rights Act.  I thought I'd cross-post the discussion here, but first I should provide a bit of background:

In 2006, Congress reauthorized Section 5 of the Voting Rights Act -- a core provision of the Act that singles out some jurisdictions' voting laws (mostly in the deep South) for intensive federal oversight.  Section 5, which was initially a enacted as a temporary provision, was designed to provide a powerful institutional mechanism to prevent discrimination against minority voters.  But unsurprisingly, the jurisdictions subject to Section 5 were extremely unhappy to be singled out.  They challenged Section 5 when it was first enacted, and they've done so each time the temporary provision has been reauthorized.  Shortly after Section 5 was reauthorized in 2006, its constitutionality was challenged in Northwest Austin Municipal Utility District Number One v. Mukasey ("NAMUDNO").

Solving the Last-Foot Problem: The Roku Netflix Player

Sometimes my professional and personal interests overlap and mechanisms for delivering video content are very much in the sweet spot of that particular Venn diagram. We are big Netflix fans at my house. Netflix, of course, is the DVD-by-mail service with a fixed subscription fee per month for having out, in our case, three DVDs at a time. A while back, Netflix added video-on-demand, but you had to watch on your computer. That doesn’t do much for me—I watch almost no TV alone and I don’t see us crowding around my laptop—but when Netflix announced that it would sell a set-top box to deliver content to a TV screen, I was interested. After a very-favorable review in the NYT, I ordered immediately, figuring that we would see a run on the box. (That was right, as Roku is sold-out temporarily.)

Adam Cox and Thomas Miles: "Judging the Voting Rights Act"

Over on the Columbia Law Review's online Sidebar, Chicago professors Adam Cox and Thomas Miles are involved in a debate about their January 2008 CLR article "Judging The Voting Rights Act." In that piece, Thomas and Adam write that they provided "the first systematic evidence that judicial ideology and race are closely related to findings of liability in voting rights cases." In so doing, they called into question the core findings of Ellen D. Katz & Anna Baldwin's report, "Documenting Discrimination in Voting:  Judicial Findings Under Section 2 of the Voting Rights Act Since 1982;" Katz and Baldwin responded to Cox and Miles with a reply in Sidebar, and Cox and Miles have responded to that reply with one of their own.

Video: Cass Sunstein and Eugene Volokh on Information Cocoons

Yesterday, Bloggingheads.tv posted a discussion between Cass Sunstein and Eugene Volokh of UCLA (and the Volokh Conspiracy), in which they touch on questions of fairness, balkanization, serendipity, and defamation in the discourse of the blogosphere.