The University of Chicago Law School Faculty Blog

Dean Levmore Early Career Quiz

When I arrived as a student at the University of Virginia Law School in the fall of 1982, Professor Saul Levmore was already an institution, though he had joined the faculty there only two years earlier. On Friday, September 12, 1980, the student newspaper at the Law School, the Virginia Law Weekly, had run an article about the school’s newest faculty member. In honor of Dean Levmore stepping down this month to rejoin the faculty, after eight years of sterling service, I offer a short quiz based on that article to test your knowledge of the early career of our great Dean.

Student Blogger - Lunchtime Talk: Virtue and Drug Use

As the State of California prepares to debate whether or not marijuana should be decriminalized, the Federalist Society sought to resolve an issue of higher magnitude: whether virtue and drug use are incompatible.  The lively lunchtime debate featured plenty of snacks and The Law School’s own Professor Richard McAdams and Professor John Baker of the LSU Law Center to hash out an answer.

The most surprising part of the debate was that there was not much of a debate on drug laws at all.  Both professors agreed in general the that so-called “war on drugs” had largely been a waste of resources given its growth to a multi-billion dollar economic intrusion and espoused general support for the DOJ’s new stance on marijuana.  As for whether virtue and drug use are incompatible, let’s just say the professors agreed that everything in moderation was a good creed to follow.  Who says you can’t pass on a question in law school?

Professor Baker began with a summary of the medical marijuana laws in California and wondered aloud whether AG Holder was a libertarian or just soft on crime for the DOJ’s reversal on prosecutions.  Given that there are over 4,500 federal crimes, only a small fraction of which are actually enforced, Baker proposes that it just might be an end to the unjust and disproportionate focus on drug laws.  Baker even went as far to say that he thinks that the federal government should be out of the business of governing people altogether. 

For drug cases in particular, federal policies blur the line between crimes and simple regulatory offenses.  To Baker, crimes are acts that need to be prohibited while regulation says what you are doing is actually okay, just let me—the federal government—tell you how to do it.  Thus, the federal government spends money on labels and chasing regulatory offenses disguised as crimes in order to justify their existence. 

Student Blogger - Summer WIP: Richard McAdams on Why Othello is a Legal Thriller

The plays of William Shakespeare hardly ignore the topic of law. Yet most of the time when the legal lens gets pointed at the works of the Bard, they focus on the more explicitly judicial pieces, such as The Merchant of Venice or Measure for Measure. Working off of Chicago's 2009 Law and Shakespeare conference, however, Professor Richard McAdams presented a new paper at the tail end of the season's WIP talks on why Othello has far more to say about law and legal concepts that perhaps previously recognized. Showing both the benefits and shortcomings of resorting to the legal process, Shakespeare presents a nuanced and ambivalent perspective on law's overall utility.

The play is book-ended by two opportunities to use the legal process to avert an injustice. At the start of the play, Othello stands accused by Brabantio of taking his daughter Desdemona by force or fraud. Iago is the mastermind behind this misconception, stoking mistrust between the two and seeking to provoke street violence. However, at the critical moment Brabantio decides to divert the matter to a legal proceeding, which allows (through Othello and Desdemona's testimony) for Othello's exoneration.

By contrast, the play concludes with Othello serving as judge, jury, and executioner after accusing Desdemona of adultery with Cassio (again, a mistake fostered by Iago). In contrast the first Act, where Othello is vindicated by virtue of procedural rights, he flatly refuses to grant Desdemona any, including a rejection of her plea to call Cassio as a witness. The tragedy of Desdemona's death, after all, could have been averted the same way that Othello was freed -- through exculpatory witness testimony. Yet Othello, by choosing the path of private vengeance rather than public law, sowed his own bitter harvest, wrongfully killing his wife and love.

So at this level, Othello takes a significantly more positive view of law than many other Shakespearean works. Yet, in another sense, law is actually a dramatic failure in Othello--it provides virtually no recourse against the generally recognized true villain: Iago. Not only that, but this failing is one that drives several significant plot choices Shakespeare makes that cast light on otherwise seemingly odd authorial decisions.

Torture and Reliance on Official Misstatements of Law

Yesterday, while releasing new “torture memos,” President Obama made a statement that many interpret as categorically disclaiming any future prosecutions of CIA personnel for torture. I don’t know what Obama’s intentions are, but it is worth paying attention to what he actually said: “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This statement is quite similar to one Eric Holder made in writing during his confirmation hearings in January (in response to a question from a Republican Senator): "It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself."

Herring and the Exclusionary Rule

On Wednesday, the Supreme Court announced the decision in Herring v. United States, a case I discussed on the blog in October. The 5-4 majority opinion (you can guess the votes) expands the good faith exception to the Fourth Amendment exclusionary rule in precisely the way that I said may prove transformative.

The facts involve a record-keeping error. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding warrant for Herring’s arrest. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier, but no one had bothered to update the warrant database. There being no warrant and no probable cause for Herring’s arrest, the lower courts find it plainly illegal. But those courts avoid excluding the illegally obtained evidence by extending an earlier Supreme Court decision, Arizona v. Evans, that allowed the good faith exception when clerical personnel of a court made a similar data entry mistake.

In October, I noted that this seemingly narrow distinction in the source of the error – court clerk vs. police clerk – could be significant. Every other good faith exception to the exclusionary rule has involved an error made by judicial or legislative personnel. If the exception also applies to mistakes the police made themselves, then there will be a potential good faith issue in every case of a Fourth Amendment violation.

Audio: Richard McAdams on the Fourth Amendment

You may have noticed that it's been awfully quiet around here; It's the calm before the storm at the Law School as we prepare for classes to start on Monday. If you're looking to fill the hours between now and then, have a listen to the first Faculty Podcast of the new year. Recorded on October 6 of last year as part of the Law School's annual First Monday series, Bernard D. Meltzer Professor of Law Richard McAdams gave a talk entitled "The Fourth Amendment in Transition?"

Wither the Exclusionary Rule?

On October 7, the Supreme Court heard argument on a significant Fourth Amendment issue –- application of the good faith exception to the exclusionary rule –- that could lead to a dramatic contraction in the primary remedy for Fourth Amendment violations. The case is Herring v. United States. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding arrest warrant for him. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier. There being no warrant nor any probable cause for Herring’s arrest, it was plainly illegal.

The normal remedy would be to exclude the evidence found as a consequence of the illegal arrest. But the prosecutor convinced the lower courts to instead extend the good faith exception to the exclusionary rule.

Equality and Establishment: Reply to Nussbaum

I thank Martha Nussbaum for her gracious response to my post a few days ago. Here I offer a brief reply.

As to my first hypothetical -– rotating school prayers -– I agree with Prof. Nussbaum but I think the argument she makes is less about equality than liberty. I think it is right to worry that the proposal would involve coercion of schoolchildren and therefore violate liberty of conscience. But my point is that the coercion could be made to occur, more or less, on an equal basis. That the practice remains objectionable shows, I think, that there is more going on to the Establishment Clause than a respect for equality, i.e., that liberty plays at least an independently important role. Perhaps I misread Nussbaum in saying otherwise, but the point of my original post is to say that a pure equality theory leads to more unconventional doctrine.

On Nussbaum's Equality Theory of the Establishment Clause

In her work presented at Monday’s Law & Philosophy Workshop, Martha Nussbaum interestingly ties the religion clauses to a concern for equality – to the need for the state to treat its citizens with equal respect. For the Establishment Clause, this means that separation of church and state is not an end, but only one possible means of achieving the end of equality. I find this approach intriguing, but I think the doctrinal implications are even bolder and more unconventional than Prof. Nussbaum acknowledges. Though she observes that equality requires less separation than does some Supreme Court precedent, she generally finds the equality rationale to support the existing doctrinal requirements for the separation of church and state. I am not so sure. Consider two examples.

First, if a public school principal rotates through a variety of public prayers and secular statements (the latter including but not limited to statements of agnostic skepticism or atheistic certitude), should we not conclude that this rotation pays equal respect to all citizens of the school? (Alex Kolod notes in her blog entry that I asked this question in the Law & Philosophy workshop). Think of this proposal as like the old “fairness doctrine”: public schools are permitted to have official prayers, but if they do, they must give “equal time” (or possibly proportionate time) to each religious tradition as well as to those traditions rejecting religious belief. It also partly corresponds to the rotation of prayers in the United States Congress (though I believe they exclude agnostic or atheistic statements). The counter-example of the high school graduation prayer shows that the rotation idea might not work for every occasion, but it would still be a marked departure from doctrine if the concern for equality led to permitting a centralized daily prayer (say, over the intercom) in public school classes.

Conference: "Torture, Law, and War"

On February 29 and March 1, the Law School hosted an extraordinary conference devoted to the topic “Torture, Law, and War: What are the moral and legal boundaries on the use of coercion in interrogation?” The conference, which was sponsored by the Law and Philosophy Workshop with assistance from the Center for Comparative Constitutionalism, showcased the interdisciplinarity for which a Chicago legal education is renowned. Participants looked at the central question from the perspective of a wide range of fields, from law and public policy to psychology and history. Speakers included scholars from a dozen universities as well as the Law School's own Adam Samaha, Susan Bandes, Richard McAdams, Martha Nussbaum, Geoffrey Stone, Scott Anderson, and Eric Posner.

The conference keynote speaker was Justice Albie Sachs of the Constitutional Court of South Africa (pictured above). His talk, “Four tales of terrorism,” gave a first-hand account of his own torture by South African security forces and his brush with death when they attempted to assassinate him with a car bomb. It also described the principles behind the rejection of torture and capital punishment by the ANC, both before and after coming to power in South Africa. His talk discussed at some length four instances of terrorism, and the responses that courts and political leaders in South Africa made to them. Through these, he argued for the importance of adhering to the rule of law, including a refusal to resort to capital punishment, and also for the possibility of reconciliation with those who have previously used torture and terrorism against oneself and one’s own side in political struggles.

Audio and video of the keynote address, along with the  other panels of the conference, are now available on the conference web page.