Hitting the Ground Running

We're excited about getting the 2011-2012 school year started, and introducing incoming UChicago law students in ACS and its mission. Coming up soon are a welcome barbeque, an introduction to ACS by our favorite Professor Geoff Stone, and our first lunch talk of the year, Professor Aziz Huq on 9/11, 10 Years Later.

The Atlantic recently published a Special Report on this same topic. Of particular interest: an addition to the National Defense Authorization Act, requiring all terror suspects to be put into immediate military custody; and redefining sovereignty under international law in light of the Libyan intervention.

Paul Smith on Litigation Promoting LGBT Rights

2011 has been a busy time for the University of Chicago ACS chapter so far. Events have included a talk by Professor Adam Cox on redistricting and the 2010 Census, which touched on this provocative paper (coauthored with Richard Holden of the Booth School and forthcoming in the University of Chicago Law Review), and a talk by Professor David Strauss on his new book, The Living Constitution.

Recently, a talk by Jenner & Block DC partner and Supreme Court litigator Paul Smith finally made it to the U of C Student Events podcast. Enjoy this look at the current status of litigation to promote LGBT rights!

Redish, Henderson, and Stone on Citizens United

Where there is controversy, there is debate: ACS recently sponsored a fascinating presentation on Citizens United with two First Amendment scholars, Martin Redish and Geoffrey Stone, and one corporations specialist, M. Todd Henderson. A podcast of the event is available for download here. Professor Stone also addressed Citizens United in this piece for the Huffington Post.

Alison Siegler on Juvenile LWOP

On October 15, University of Chicago's ACS chapter sponsored a lunch talk by Professor Alison Siegler
previewing two upcoming Supreme Court cases—Sullivan v. Florida and Graham v. Florida—that present the question whether life without parole sentences for crimes other than homicide committed by juveniles violate the Eighth Amendment. Her talk, which assesses litigation strategy and the chances that the plaintiffs will prevail, is available via podcast here.

Want more? Another U of C professor, Bernard Harcourt, recently contributed an opinion piece to the Los Angeles Times on the same subject.

Paul Smith - Litigating Same Sex Marriage Podcast!

Click here to listen to a podcast of Paul Smith at the University of Chicago discussing the future of gay marriage litigation.

ACS On The Rise and In The News

With some high-profile appointments in the Obama administration, ACS is being recognized for its growing influence at the national level by the media. Here are a couple recent articles:

Washington Post - Legal Organization May Become Influential Beyond Its Dreams

New York Times - Liberal Legal Group Is Following New Administration's Path to Power

Blog for ACS!

The University of Chicago ACS Chapter invites all members, alumni, students, and other interested parties to contribute to our blog!

• Check back weekly for updates to what we're reading and share your thoughts.
  
• Keep track of our upcoming events and then share your thoughts.
  
• Start a whole new online discussion on the issues that matter most to you.

If you have questions or suggestions, let us know at uofcacs@gmail.com.

Judge Mikva Introduces ACS

The U of C ACS Chapter is fortunate to have Judge Abner Mikva introduce the organization as an annual tradition. During an introductory meeting on October 4, Judge Mikva introduced the ACS by explaining the important role of this "concerned organization, national in scope, that cares about issues" and fielded questions about the role of student members. In addition to perceiving a commitment to the rule of law and important constitutional issues as an integral part of any legal career, Judge Mikva encouraged members to do their part to promote thoughtful discussion and give traction to important issues in the upcoming presidential campaign. Popularizing issues such as the status of habeas corpus, US policies on torture and interrogation, and membership in the world criminal court is a good starting point for making a difference.

Follow-Up to Jan Crawford-Greenburg talk

Ms. Crawford-Greenburg recommended that we take a firsthand look at the papers of Justice Blackmun at the Library of Congress.

For those who are interested, here is the relevant website: http://www.loc.gov/rr/mss/blackmun/

More to come...

Lunch with Hinton Moot Court Judges, 5/2

On Wednesday, May 2, ACS teamed up with the Federalist Society for a special lunchtime event. In honor of the finals of the Hinton Moot Court competition, Justice Eid of the Colorado Supreme Court and Judge Pallmeyer of the Northern District of Illinois, both alumnae, joined us for an informal discussion entitled, “Misconceptions of Life on the Bench: What we would have liked to learn in lawschool, and what we could have done without.” Professor Strahilevitz moderated the discussion, which was guided primarily by student questions. Both speakers extolled their experiences here at the Law school, but emphasized that there is a great deal about the legal profession that is not taught in law school. For instance, Justice Eid spoke at length about the importance of “court cultures,” where norms about collegiality and expressing disagreement vary among courts. She added that it is helpful to have a panel of judges with diverse backgrounds, and that more discourse among these judges tends to yield better opinions. The speakers themselves illustrated this point; Justice Eid discussed the great responsibility of holding the highest Colorado state court position, while Judge Pallmeyer reminded the audience that the district courts “don’t make law,” but rather “just apply it as it’s been determined by higher courts.” Likewise, many issues arise in state court but not federal court (and vice versa), i.e. domestic disputes.

Judge Pallmeyer also noted that law school instruction does not pay enough attention to the “pure stress of the profession” and the inevitable challenges associated with performing “new lawyer” duties. Correspondingly, Pallmeyer lamented an “overly narrow understanding of our [career] options,” with momentum guiding so many law students toward large law firms. Audience members expressed that they enjoyed the unique access to such distinguished judges and alumnae- rarely are we afforded exposure to distinguished alumnae and judges in such a friendly and frank environment.

Thanks to the audience for their thoughtful questions and to the Federalist Society for their excellent collaboration.

Washington shields journalists

I realise that blogs are commonly characterised by criticism, but I just thought I'd give a little praise to Washington State for getting out a shield law for journalists. Not every state gives journalists the ability to keep sources confidential and avoid going to jail, and I am glad to see another state do so.

Save the Bees and Mind Your Own Dam Business by Investing in Research

Single environmental issues seem to create serious problems when it comes to obtaining real legislation, but I have to wonder if there is an even bigger impediment to environmental legislation than apathy, or political disagreement, or even Bush's policy on Kyoto. The problem may be sheer complexity of environmental issues that make a single comprehensive climate change bill impossible. The result may be not just one up-hill battle for the environment, but thousands. And much of the action being taken right now we don't really have great answers for.

For example, we have no idea what to do about the bees disappearing. I'm not making this up, please see the NY Times article at http://www.nytimes.com/2007/04/24/science/24bees.html?_r=1&oref=slogin

Like many environmental issues, we know the bees are disappearing, we have a laundry list of causes, but the situation is complex. How do you save the bees when you don't know what to save them from? It may seem like a silly issue, but the potential environmental impact and economic impact is absolutely enormous. Perhaps I need a bumper sticker from Bee Watch.

On the other hand, sometimes we know the science involved but the situation is complex enough that it is difficult to tell course to take to minimize harm. A great example involves current fights over Dams in Oregon used for hydroelectric power. Do we like the dams for their (relatively) clean hydroelectric power, or do we hate the dams because they kill all the delicious (Read: ecologically vital) salmon?

What is the point? The point is that as much as we need lobbyists and all of the political pressure on reducing emissions and such, many of the real environmental problems out there
need funding for research before we can even begin to make informed choices. Saving the planet with your vote needs to be accompanied with saving the planet with your wallet.

The deadissue of gun control

I am reluctant to turn the horrible tradgedy at Virginia Tech into a political issue. My heart goes out to both those who lost loved ones and those who did not. I lived in Blacksburg as a child, and I can only imagine what it has been like for our family friends still living there.

At the same time, I have been surprised by the political reaction to this recent tradgedy. After Columbine, politicians were up in arms (pun intended) about gun control and President Clinton went after hand guns. Today the favored political response seems to be altering the laws and rules governing University responsibility for getting help for the mentally ill. Gun control has received little attention even from the myriad presidential hopefuls.

In fact, nearly the only gun-control related comment Fox News made was to interview members of the Virginia Tech Gun Club who hinted that they could have avoided the tradgedy if they were allowed to come onto campus armed and that their guns would have made them feel less helpless. It's Fox News, but come on!

i guess I knew gun control was a dead issue, but now I really know.

Follow-Up to Gary Feinerman, Solicitor General of Illinois

Our roundtable lunch with Gary Feinerman, Solicitor General of Illinois provided an in-depth look at the operations of the Solicitor General's office as well as a testimonial about how Feinerman fulfills the duties of the position while still honoring his own convictions. After prepared remarks by Mr. Feinerman, students had the opportunity to pose questions about cases that he cited, his own career trajectory, and his views about the judicial system.

I thought I'd offer links to opinions from the cases we discussed, in case anyone is interested:
Illinois v. Caballes
Hosty v. Carter
Board of Trustees of the University of Alabama v. Garrett

Please feel free to post lingering questions or comments about this event!
- Karen

Name Your Baby 'Metallica'

Apparently a couple in Sweden is upset because they are not allowed by the Swedish authorities to name their baby 'Metallica.' "Why do I post this on the ACS blog" you ask? 1) because the EPA case seems to have garnered no attention whatsoever, and 2) because it has interesting legal implications.

There are two ways to look at the experience of this couple: Either this is an example of stupid bereaucrats limiting freedom of expression through unconventional means, or it may be a case for limiting the scope of government involvement in every-day choices. Is not being able to name your baby 'Metallica' a potential drawback of living in a pseudo-socialist state where the government is involved in everything (so what if this is a gross mischaracterization of Sweden, this is a blog)? I prefer to think the officials here were just stupid, but it does provoke thought. Or does it?

Massachusetts v. EPA: A Hollow victory unless we do something about it

Some news sources seem to be touting Massachusetts v. EPA as a slap in the face of Bush's environmental policy, but the real result is that the EPA (under Bush's direction) can continue to avoid making serious inroads against global warming unless someone forces the EPA to do so.

I am grateful that the Supreme Court ruled that the EPA can regulate tailpipe emissions of greenhouse gases. I realize that such a ruling was by no means certain, but, at the same time, most Americans probably thought that the EPA was regulating tailpipe emissions all along. I realize that this is a naive view of administrative law, but if the EPA can't regulate tailpipe emissions what is the point of the EPA?

But far from some enormously helpful, pro-environment opinion, Massachusetts v. EPA actually does little to help the environment. Much of the case was focused on whether the EPA was required to regulate tailpipe emissions. The EPA argued that it had discretion to decide whether or not to regulate tailpipe emissions. The Supreme Court did not explicitly rule that the EPA had to regulate tailpipe emissions, instead it said the EPA had to re-evaluate its contention and to come up with a better (read: closer to the Clean Air Act) reason not to.

Basically the court declined the EPA to do what I see as its job! I can understand all of the legal reasons why the court did it, but it still leaves a bad taste in my mouth. It makes me wonder when some branch of government will finally make the EPA do something.

Who can make the EPA regulate tailpipe emissions now that the Supreme Court has declined to do so?
1) The President could do something, but don't hold your breath.
2) Perhaps the most interesting part of this case is that it allows States to challenge EPA decisions in court. Again, this at first seems really exciting, but if Massachusetts v. EPA is any indication, the ability of any state to force the EPA to be tough on environmental issues will probably be limited.
3) Ultimately, this case seems like a plea for us to elect Legislators who will actually force the EPA to take measures to counteract global warming.

Nina Perales 2/27

On February 27, Nina Perales spoke to a large group of interested students about her work regarding voting rights in the United States. Her talk focused particularly on her work on behalf of MALDEF, the Mexican American Legal Defense and Educational Fund. After a brief discussion of the roots of her organization, Perales described briefly the history of discrimination against Mexican-Americans in the voting rights arena. This record includes denial of voter registration, a poll tax, and outright intimidation at polling places.

According to Perales, the organization tackles two primary issues related to voting rights. First, she and her colleagues endeavor to register Mexican-Americans to vote and to encourage voting despite opposing efforts to limit their ballot-casting. Perales raised the important example of Proposition 200 in Arizona. Touted as a law designed to thwart abuse of social services by undocumented immigrants, the Proposition included a new provision that would require potential voters to provide documentary proof of citizenship in order to be registered to vote. Under this law, over 15,000 applicants we

In addition, Perales and MALDEF oppose schemes that “dilute or diminish” the weight of a Mexican-American’s vote. As background, Perales noted that vote dilution is amplified within the context of other social ills that disproportionately affect the Mexican-American community such as poverty, housing discrimination, segregated schools, low education rates, language isolation, and cultural exclusion. One such “dilution scheme” is gerrymandering.

Perales herself litigated the Texas case involving a 2003 redistricting plan that was broadly viewed as favoring the Republican agenda by altering the distribution of Latino voters in the state. Perales noted that although the plan was devised to protect the threatened seat of Anglo-preferred Henry Bonilla, a Latino Congressperson, the racially polarized voting patterns of the Latino population demonstrated an extreme lack of support for Bonilla. Following a drawn-out procedural progression, Perales joined six other parties representing various groups in presenting claims before the Supreme Court. The plan was successfully struck down.

After Perales’ remarks, students seized the opportunity to ask questions.

In response to a question about overhauling the district system, Perales cautioned the crowd: “I don’t think you can never take the politics out of redistricting.” Another student wondered whether Bonilla’s unpopularity among his own racial group should raise doubt about the existence of racially polarized voting. In response, Perales noted: “You don’t look at the color of the candidate, you look at whether the electorate is divided along racial lines in which candidates they’re supporting.” Furthermore, Bonilla opposed Latino candidates in all of his elections.

One student drew a comparison between Latino voters and Chasidic Jews, asking why Latinos constitute a protected class while other insular minorities do not. Perales invoked Hernandez v. Texas and the Voting Rights Act (1965), which recognized Latinos largely because of their history of discrimination.

Perales closed with a colorful image that described her position in a nonpartisan group, working alongside democratic and republican groups: “Litigating redistricting is like driving on I-85 between two Semis [in a compact car] – “you don’t know who you’re going to get squished by.”

Contemporary Issues in American Voting Rights

This Tuesday, ACS welcomes Nina Perales, Southwest Regional Counsel for MALDEF, the Mexican American Legal Defense and Educational Fund. Ms. Perales will speak about the current state of voting rights in America, as well as her experience as lead counsel challenging the 2003 Texas redistricting plan in League of United Latin American Citizens v. Perry.

Please feel free to check out the SCOTUS decision before the talk:
League of United Latin American Citizens v. Perry

Tuesday, February 27th
Room III
12:15
Lunch Provided!

Dr. Gunn: Continuing Viability of History in the Establishment Clause Debate

In his talk, Dr. Gunn responded to the historical arguments made by critics of the separation of church of state. Gunn roughly separated the Establishment Clause scholars into two camps: (1) the separationists, who interpret the Establishment Clause as a “wall” blocking both the federal and state government from advancing or censoring the activities of religious groups; and (2) the accomodationists, who interpret the Establishment Clause to prevent only the federal government from interfering with individual or state-established religions.

According to Dr. Gunn, the seminal case Everson v. Board of Education established the separationist view as the American legal status quo. In the 1970’s, however, the accommodationists began questioning the separationist view and promoting their counter-history of the Establishment Clause.

Today’s accommodationists, represented by Phillip Hamburger and Michael McConnell, have focused on developing a counter-history to support a narrow reading of the Establishment Clause. According to Dr. Gunn, the accommodationist arguments fall into four categories: first, the term “establishment of religion” was a contemporary term of art for a federally-sanctioned Church, such as the Church of England; second, the words and actions of the Framers demonstrate their support for governmentally sponsored religious activity; third, the Clause was motivated by Federalist desires to prevent federal regulation of state sponsored religious activity; and fourth, the metaphor of a “wall between Church and State” is a modern metaphor with no historical basis.

Dr. Gunn responds to the accommodationist arguments on historical, interpretative, and positive grounds. Contrary to the accomodationists’ position, Gunn argues that the phrase “establishment of religion” did not have a clear contemporary meaning; rather, it was a loosely defined term of approbation used to condemn political-religious interactions across the spectrum. Given the ambiguity of the phrase, Gunn argues that modern interpreters have to look beyond the plain meaning of the text. He makes an interpretative argument that the words by themselves should not incapsulate or control meaning, and that the subsequent acts of Congress should not conclusively be viewed as their interpretation of the text. Finally, Dr. Gunn obliquely promotes a positive argument: the Bill of Rights was intended to protect natural rights, and implicitly, government-sponsored religious activity is inconsistent with natural rights.

The primary value of Gunn’s position is his willingness to confront accommodationalist arguments within the positivist framework. While his interpretative arguments are not necessarily more persuasive, Gunn begins to introduce doubt into the accomodationalist position. The accomodationalist position critically assumes that the Establishment Clause embodied a fixed concept and that a narrow methodology arrives at the most accurate results. Gunn attacks these two tenets, arguing that the “establishment of religion” lacked a fixed definition and introducing the viability of other interpretative methodologies. By merely introducing doubt into the accomodationalist framework, Gunn forces the debate outside of the positivist account of history and onto either fundamental or contemporary grounds.

Dr. Gunn briefly touched on the fundamental theory of the Establishment Clause, arguing that the Bill of Rights derives from a respect for natural rights and implying that a government-sponsored Church would violate the foundational natural rights. However, he didn’t flesh out the argument or set forth an affirmative interpretation for the Establishment Clause.

The Continuing Vitality of History in Establishment Clause Debates: The Chicago School's Framing of Religious Freedom

Former University of Chicago Law School professors Michael McConnell and Philip Hamburger have written important works challenging the usefulness of "separation of church and state" as a a guiding constitutional norm. This talk, by Dr. Jeremy Gunn, the director of the ACLU's Program on Freedom of Religion and Belief (who himself is a U of C grad), will challenge the writings of McConnell and Hamburger and question how history might better be used to resolve contemporary issues in the culture wars over religion.

For those of you who'd like some quick background:
Here's a review of a McConnell lecture at the University of Virginia Law School.
And here's a book review of Hamburger's work.

Please join us!
Tuesday, 12:15
Room II
Lunch Provided!