The University of Chicago Law School Faculty Blog

Sonia Sotomayor and the Hypocrisy of "Conservative" Critics

The May 30, 2009, New York Times contains two interesting articles about Sonia Sotomayor. One deals with her views of affirmative action, the other with her views of campaign finance regulation. According to these articles, Judge Sotomayor has been supportive of both policies. What this means in terms of her predicted behavior as a Justice of the Supreme Court is that she will tend to uphold the constitutionality of both policies. The articles report that conservative critics of Judge Sotomayor have begun to attack her for her positions on these issues because, by doing so, she is allegedly making inappropriate policy judgments rather than applying the law in a cautious and respectful manner.

This criticism reveals the inconsistency and, dare I say, hypocrisy of the contemporary conservative stance on constitutional interpretation. Conservatives insist that their heroes – Justices Rehnquist, Roberts, Scalia, Thomas and Alito – are judicial “passivists,” rather than judicial “activists,” who “strictly construe the Constitution,” do not substitute their own views for those of the Framers, and generally defer to the judgments of the democratically-elected branches of the government. Most fundamentally, these conservative Justices do not use the power of judicial review (the power to declare laws unconstitutional) to smuggle their own policy preferences into their interpretations of the Constitution. That vice, they say, is the vice of liberal activists.

Student Blogger - Can Charities Be Too Rich?

Professor Takeshi Fujitani on charitable wealth accumulation

Charities generally exist to help the poor - but they themselves are sometimes quite rich. Is this a problem? Some people seem to think so. Universities and other non-profit organizations with substantial endowments have been criticized for failing to provide "public benefit". The sharp decline in such endowments over the past year has of course muted this criticism, but the underlying issues remain - many nonprofits still have vast endowments, and these are likely to grow significantly in the future. But what, exactly, is the problem with this? Are charities that build reserves doing anything wrong - should they spend now instead? If we think they should be making different choices, should we change our policies towards tax treatment of charitable giving to realign incentives?

Professor Takeshi Fujitani addressed these issues in his recent paper Does the 'Timing of Charity' Matter?: A Theoretical Reexamination of Tax Policy for Endowed Nonprofit Organizations presented at last week's Works in Progress (WiP) talk. In the paper and talk, he argued that criticism of charitable wealth accumulation is not particularly focused, but that it may have some validity when examined closely. He further suggested that tax subsidies for such wealth accumulation can be separated from those for charitable giving in general, and that the justifications for the former subsidy are much weaker.

David Frum (American Enterprise Institute) on Judge Sonia Sotomayor: Subprime Reporting

David Frum of the American Enterprise Institute took the air last night—and the blogosphere—to blast President Obama’s nomination of Judge Sonia Sotomayor. In his diatribe “Sotomayor not a justice for these times,” Frum attacked Judge Sotomayor as someone “whose experience of business law is abstract and academic.”

“Abstract and academic”?  Does anybody fact check anything anymore? 

David Frum has no idea what he is talking about. Judge Sonia Sotomayor was an attorney in a commercial litigation firm in New York City from 1984 (after prosecuting cases for District Attorney Morgenthau in Manhattan) until 1992 (when she was sworn in as federal district court judge, nominated by President George H. W. Bush). 

Student Blogger - Claire Priest Reassesses the Death of the Fee Tail

The fee tail, as any first year property student knows (or knew, then promptly forgot), is a type of interest in property that renders it inalienable, instead automatically passing on to the owner's heirs upon his death. Though a long standing component of English property law, the fee tail is no longer enforceable in the United States, and indeed was relatively quickly subject to attack after the Revolutionary War. The common explanation for the fee tail's death was that it offended America's incipient republican spirit -- enabling the creation of large hereditary estates which too closely resembled European aristocracies.

In her presentation to the last session of this year's American Legal History Workshop, Northwestern Law Professor (joining Yale's faculty this summer) Claire Priest sought to complicate that explanation and offer a different picture for why the fee tail withered away soon after the revolution. Acknowledging that republican ideals may have played some role, Priest focused her inquiry on a different aspect of entailed estates -- their shielded status from creditors -- and how that affected the way that fee tails were employed in the revolutionary era.

Obama's Speech on National Security: "The Most Difficult Issue We Have to Face"

In his speech on Thursday about Protecting Our Security and Our Values, President Obama touched on many of the challenges posed by the threat of terrorism. I want to address one challenge in particular: What should we do with "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people." This is a fundamental question, because it cuts to the very heart of the concept of preventive detention.

The President explained that some detainees at Guantanamo will be be prosecuted for crimes in the federal courts of the United States. To the extent this occurs, it should be constitutionally unproblematic. The President explained further, however, that some detainees cannot realistically be prosecuted in the federal courts, because the procedural and evidentiary rules of those courts would require the exclusion of evidence that would be essential to secure their convictions.

This is most obviously the case with respect to evidence obtained through "involuntary" statements (either by the defendants or others) and various forms of hearsay evidence (for example, X testifies at trial that Y said that Z committed a terrorist act). Such evidence ordinarily would be inadmissible in federal court because its use in a criminal proceeding would violate the privilege against compelled self-incrimination, the due process clause, and/or the defendant's constitutional right to confront the witnesses against him.

Student Blogger - Chicago’s Best Ideas: Bernard Harcourt on “Neoliberal Penality: A Genealogy of Excess”

In light of the financial crisis, many people are calling for greater regulation of the market. A few years ago, many called for freeing the market from excessive regulation. The common thread underlying both sentiments is that there is there is a spectrum along which market regulation can be located, from free at one end to excessively regulated at the other. These assumptions are ubiquitous, but not quite universal.

On May 21, Professor Bernard Harcourt gave a talk in the Chicago's Best Ideas lecture series entitled "Neoliberal Penality: A Genealogy of Excess" (about which he has a paper in progress). Harcourt took on the concepts of "free market" and "excessive regulation" by highlighting two snapshots in time: grain laws in France in 1739, commonly considered to epitomize excessive regulation; and the Chicago Board of Trade in 1996, representing the free market.

Student Blogger - Divide and Conquer

Professor Eric Posner (and co-authors) on a classic strategy - and law's responses to it  

What do labor organizers, Germans, and criminals have in common? Each of their respective bêtes noire - union-busting employers, the Emperor Tiberius, and clever prosecutors - are masters of a classic strategy: divide and conquer. Employers may try to buy off some employees and punish others to prevent unionization or gain an advantage in negotiations. Tiberius famously played German tribes against each other to ensure Roman dominance. And, in the well-known Prisoner's Dilemma, a nameless prosecutor separates conspirators and offers each a deal that makes squealing attractive. These are only a few examples of what surely must be one of the oldest moves in human interaction. But is "divide and conquer" just a loosely-used label, or do these different examples have something in common? If they do, does that tell us anything interesting about what we should think or do about uses of the strategy?

Chicago's Professor Eric Posner, along with co-authors Kathryn Spier and Adrian Vermeule (both at Harvard Law School) tries to answer these questions in his draft paper titled, not surprisingly, "Divide and Conquer", which was presented at last week's Works in Progress (WiP) talk. Prof. Posner and his co-authors come to the conclusion that there is a common thread running through many incidents labeled as "divide and conquer," and that there are interesting implications of this that might not be apparent when looking at each type of incident in isolation. Posner and his co-authors first classify different methods of divide-and-conquer behavior, then investigate the use and limits of legal rules for countering divide-and-conquer behavior in situations where it is harmful.

"Shakespeare and the Law" Conference Brings Justice Breyer to the Stage

On Friday and Saturday, the Law School will play host to a conference on "Shakespeare and the Law." According to the conference event listing, the event (organized by Chicago faculty Martha Nussbaum, Richard Posner, and Richard Strier,

will bring together thinkers from law, literature, and philosophy to investigate the legal dimensions of Shakespeare's plays. Participants will explore the ways in which the plays show awareness of law and legal regimes and comment on a variety of legal topics, ranging from general themes, such as mercy and the rule of law, to highly concrete legal issues of his time. Other papers will investigate the subsequent influence of his plays on the law and explore more general issues concerning the relationship between law and literature.

The highlight of the conference for many, we suspect (including the Tribune's theater blog), will be watching special guest Justice Stephen Breyer perform as the ghost of Hamlet's father in a series of scenes from the Bard's plays that will be staged as part of the conference. Of course, the keynote conversation between Breyer, Nussbaum, Posner, and Strier will likely be just as fascinating.

The conference is free and open to the public. All the world's a stage, but the Weymouth Kirkland Auditorium isn't exactly the Globe, so space may be limited. The scenes and keynote will be made available on the web once they're ready.

If you attend and happen to be tweeting at the event, please use the hashtag #bardlaw.

What's Wrong with this Picture?

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.” -- James Madison

President Barack Obama yesterday changed his mind about releasing to the public hundreds of photographs that apparently document abuse of prisoners in Iraq and Afghanistan by American military personnel between 2001 and 2005. Mr. Obama apparently changed his mind after he was reportedly warned by top Pentagon officials that publication of these images might inflame anti-American sentiment in the region and therefore endanger American soldiers.

The President is right that the dissemination of these photographs might inflame anti-American opinion and possibly put our soldiers at greater risk. But he is wrong to focus on that risk rather than on the importance of these images to public debate in the United States – debate that is at the very core of our self-governing society.

Student Blogger - Political Commitment, Entrenchment, and Self-Enforcement in Constitutional Law

The difficulty in reconciling constitutional constraints, especially those enforced by judges, on the authority of democratic majorities given American society’s commitment to popular sovereignty and self-governance—the “countermajoritarian difficulty”—has received a lot of attention in constitutional scholarship over the years. A less explored, but no less important, question is why democratic majorities follow such constraints rather than treating them as “parchment barriers” easily crumpled and discarded?

Professor Daryl Levinson of Harvard Law School presented a paper at this week’s Law & Politics Workshop addressing this question from a Madisonian perspective. James Madison believed constitutional rights by themselves were only effective as a signaling mechanism to a widely dispersed majority that it needed reign in its agents in government. By themselves, constitutional rights are fairly ineffective restraints against the majority itself. As outlined in Federalist Numbers 10 and 51, Madison hoped the Constitution also created institutional arrangements that empowered political actors whose interests would align with constitutional rights so that the majority could be adequately checked.