My colleague, Erin Delaney, was recently awarded a prestigious MacCormick Visiting Fellowship at Edinburgh Law School for her work on comparative constitutionalism. This Fellowship will allow her to expand her research on the United Kingdom and exchange ideas with her European colleagues. As part of the fellowship, she will teach a MacCormick Seminar on Constitutional Change in the United Kingdom at the Edinburgh Law School—a topic about which she also has a paper, “Judiciary Rising: Constitutional Change in the United Kingdom”—forthcoming in the Northwestern Law Review.
This is further evidence of the extraordinary strength of our constitutional law faculty, particularly in the emerging area of comparative constitutionalism.
The MacCormick Fellowships were created in honor of the memory of noted Philosophy of Law scholar Professor Sir Neil MacCormick, the Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh from 1972 to 2008. The program supports advanced research in legal studies and the international exchange of ideas.
Please join me in congratulating Erin, and wishing her the best of luck in Scotland.
On the heels of a very successful Entrepreneurship Law Center symposium last weekend comes news of a successful startup endeavor that involves two of our JD/MBA students.
John Kuelper and Matthew Rosenstock, both JD/MBA ’14, are two members of a six-person team that formed Orpheden Therapeutics, a company that is working on commercializing a therapy to stimulate an individual’s immune system to fight cancer. The therapy is based on research done by Alan M. Krensky, MD, of the Feinberg School of Medicine.
Orpheden Therapeutics is a finalist in the Business Plan phase of the Breast Cancer Startup Challenge. The idea behind this competition is that there is a lot of important research just sitting out there, currently not being developed but with tremendous potential. The Challenge creates an opportunity for teams to take unused patents and create a business plan that would bring the technology to market. The hope is that this effort will unlock some of this research so that it might benefit mankind.
The Business Plan is an early phase of the larger challenge. Because of their success at this level, Orpheden will be able to compete later in the year for up to $100,000 in venture capital funding.
Orpheden Therapeutics is a project of Northwestern’s Innovation and New Ventures Office, which brings together teams from different academic backgrounds to support and accelerate entrepreneurship. Six students compose the team: from the Law School, John and Matthew; from the Feinberg School of Medicine, Jonathan Bell, a MD/PhD candidate, and Mthabisi Moyo and Daniel Levine, both doctoral candidates; and from the Kellogg School of Management, Ronald Mantel, an MBA student.
John is the CEO of Orpheden. He is also a student in the Medical Innovation class, where he is a member of another team, one that is working on an ophthalmology device that simplifies the delivery of post-operative medications to cataract and other eye surgery patients.
These endeavors reinforce something unique to Northwestern: the inclusion of law students on these types of entrepreneurial teams. It might not be immediately obvious why it would be important to have law students on a team that works on cancer therapies or ophthalmological devices. But the fact is these therapies and devices are developed in a highly complex legal and regulatory environment. Many pitfalls lie along the road to commercialization, problems and delays can be avoided by people who understand the requirements. I know from talking with venture capitalists that they value teams that have people who understand intellectual property and regulatory requirements, and they value that expertise because it makes a difference to the bottom line.
Congratulations to John and Matthew and the other members of the Orpheden Therapeutics team, and best of luck in the venture capital round! I look forward to following your progress.
Professor Juliet Sorensen penned an opinion piece that is well worth a read: “Why Are Natural Disasters Breeding Grounds for Corruption?” It was published today on Talking Points Memo.
This is a subject on which she writes regularly. Another notable recent op-ed of hers was on the United Nation’s efforts to fight international corruption through the United Nations Convention against Corruption, which was published on Al Jazeera America.
Her writing is based, in part, on the work she does with her Northwestern students. I’m pleased to share with you here an excerpt from a forthcoming article about the exemplary work of students, faculty, and alumni involved with the Center for International Human Rights. The full article will appear next month in the Spring 2014 issue of the Northwestern Law Reporter:
In 2013 the Bluhm Legal Clinic’s Center for International Human Rights was granted consultative status with the United Nations, an accreditation held by only one other US law school, which allows nongovernmental, nonprofit public and voluntary organizations to play a role in UN deliberations. CIHR’s consultative status enabled clinical assistant professor Juliet Sorensen and two JD students—Akane Tsuruta (JD ’14) and Jessica Dwinell (JD-LLM IHR ’14)—to attend last November’s Conference of the State Parties to the United Nations Convention against Corruption, held in Panama City.
As recently as 15 years ago bribery was regarded in many countries as a legitimate business practice, in some cases even a tax deduction allowed by law. It was not until 2003—when the Convention against Corruption was adopted by the UN General Assembly—that a legally binding international treaty to criminalize corporate bribery, extortion and embezzlement first emerged. As of February of this year, 170 countries have become parties to the treaty, and the Conference of the State Parties to the UNCAC has convened biennially to review signatories’ progress toward preventing corruption, improving international law enforcement and providing mechanisms for the treaty’s implementation.
Northwestern Law’s three delegates to last fall’s conference—the fifth to be held—worked closely with the UNCAC Coalition, a global coalition of anticorruption NGOs, attending plenary sessions and helping the organization to write articles. Tsuruta and Dwinell also blogged about conference proceedings for FCPA Professor, a widely followed online forum devoted to the Foreign Corrupt Practices Act and other international anticorruption laws…
…With substantial input from Chicago law firm Baker & McKenzie, the Center for International Human Rights created a desk reference compendium on UNCAC compliance. Sorensen and her students analyzed data and assembled country-by-country documentation, working together with Baker & McKenzie partner Edwin R. Dunn (JD ’67), attorney Gerardo Calderon-Villegas (who also attended the UNCAC conference), and Bluhm Legal Clinic advisory board member Angela Vigil (JD ’95), who is Baker & McKenzie’s director of pro bono and community service for North America. The compendium was an essential resource for Northwestern Law’s UNCAC conference delegation and will continue to serve as a guide for future UNCAC compliance work.
“This valuable resource would not have been possible without the generosity and talent of Baker & McKenzie,” said Sorensen. “And each of us, regardless of the type of law we practice, can play a role in fighting corruption. As members of the bar, it is our responsibility to advise clients facing the gray areas of corruption to make honest, ethical decisions. In-house lawyers, corporate counsel and litigators—all can help.” –Erin Marks
I’m proud and appreciative of the extraordinary efforts of these members of the Northwestern Law community.
from today’s L.A. Times:
Legal ‘standing’: Obama’s executive branch escape hatch
President Obama delivers a statement on the Affordable Care Act in the Brady Press Briefing Room of the White House.
BY EUGENE KONTOROVICH
March 2, 2014, 2:00 a.m.
President Obama’s proclaimed strategy to “bypass Congress” — most conspicuously his broad rewriting of the Affordable Care Act — has given unusual prominence to a fairly arcane legal doctrine: standing. Standing is what is preventing a potential blizzard of litigation against the president’s unilateral decrees, and ironically, it’s a doctrine liberal jurists have long decried.
To challenge the government in federal court, it isn’t enough to simply believe that the government’s conduct is illegal or even unconstitutional. Federal courts can hear only specific disputes about the law as applied to particular people. To be heard in court, a person must have a concrete complaint that he or she has suffered or will suffer a distinct injury stemming from the government action.
This limit, rooted in Article III of the Constitution, is designed to prevent courts from becoming arenas for endless ideological rehashing of the merits of government policies. But the upshot is that federal courts cannot simply review any allegation of illegality by the government. And further, when the government has a policy that does not directly affect particular individuals, there may be no plaintiff with standing.
For example, on Monday, the Supreme Court heard arguments in a major case about the Obama administration’s regulation of greenhouse gases, which the plaintiffs claim vastly exceeds what Congress has authorized. Yet the court will review only a portion of their complaints; several were thrown out in the lower courts for lack of standing.
The counterintuitive thing about standing is that it can result in situations in which the government may well be violating the law, even the Constitution, and yet there may be no vehicle for judicial review. Problems of this sort arise when governmental action affects most everyone uniformly. In such cases, the political process — working through Congress — is a more efficient and proper solution than piecemeal adjudication. Congress is where wholesale policy is made; the federal judiciary works in retail decision-making.
The Obama administration’s unilateral decision to delay implementation of parts of the Affordable Care Act, or give waivers for compliance to certain businesses, is a perfect example. This may well be a violation of the separation of powers. But because the law is not being enforced against anyone — indeed, it is not being enforced at all — there is no one who has a specific beef. Rather, everyone has the same beef: The president is defying the Constitution by in effect rewriting the law, a role reserved for Congress.
An inability of federal courts to immediately deal with such alleged official lawlessness is certainly a cost of the standing doctrine. But it is one that the Constitution accepts as the price for preventing judicial tyranny. If the judiciary could take up any issue it wanted, whenever it wanted, the court would become omnipotent.
This can be seen by looking at countries such as Israel, where a hyper-activist Supreme Court succeeded in eliminating standing limits and emerged as perhaps the most powerful institution in the nation. U.S. federal courts already have great power as the primary arbiters of constitutional cases. But if they could also seek out such cases, they would become a constitutional Spanish Inquisition, with an open mandate to hunt down constitutional heresy.
That is not to say that there is never anyone with standing in situations like the rewriting of the Obamacare mandates. Proper plaintiffs often take time to emerge. One might imagine an employer that already took measures to comply with the law as required, and is now at a competitive disadvantage to companies that hadn’t bothered. But we have to wait for such a plaintiff to surface; this is not a mere ritual formality but a necessary part of limiting the power of courts to decisions on a particular sets of facts, rather than allow a judicial slash-and-burn approach.
Standing is one of the jewels in the Constitution. But it remains a very controversial doctrine, with conservatives supporting it and liberals seeking its contraction. Obama’s former regulatory czar, Cass Sunstein, even argued that standing was essentially a constitutional myth. At the Supreme Court, standing rulings often break down 5 to 4 along ideological lines.
Conservatives see standing as essential to the separation of powers, while liberals see it as implicitly favoring old-fashioned property and personal injuries over more inchoate regulatory ones; standing, for example, makes it very hard to challenge governmental mismanagement of the environment.
The standing doctrine enables the White House to “go it alone” by largely keeping the administration out of court and potentially sparing it legal embarrassment. Liberals today seem less vociferous about how standing limits are preventing the courts from defending the substance of the Constitution.
What has been most impressive about the Republican reaction to the legal wall they’ve run into in opposing the White House’s policies is the notable absence of arguments to ignore or dismantle standing. This is constitutionalism at its best: principled limitations on one’s own actions and desired goals out of an understanding that the restraint of government power is ultimately in everyone’s best interest.
Hopefully, the current episode will be a lesson to all sides that the only thing more dangerous than unbridled executive power is unleashing unchecked judicial power to defeat it.
Eugene Kontorovich teaches constitutional law at Northwestern University School of Law.
In addition to high ranking in previous post, here is some additional data from NLJ:
Go-to law firms for selected major law firms. Baker & McKenzie, Kirkland & Ellis, and McDermott, Will, & Emery are at the top for NU Law.
Associates to partner has Northwestern in the high echelon.
Here is a chart that juxtaposes go-to law firm ranking with U.S. News rankings. NU Law overperforms more than any other law school in the T14.
Finally, the last chart is interesting. It puts NU Law in the highest quintile for overall value (placement/cost).
This is actual data, not surveys. Gives some very useful perspective on the question of comparative success in one (though certainly not the only) measure of law school success.
Nice article in Chicago Daily Bulletin about Savner gift of $1 million to enable new classroom for innovative education.
While the focus here is usually on the technology, the critical point is that this type of innovation allows for teamwork and collaborative education, all central to new and improved ways of teaching and learning.
United States Senator Dick Durbin will deliver the keynote at the Journal of Criminal Law and Criminology’s 2014 symposium, “Guns in America.” The Senator will discuss the gun lobby’s efforts to fight new and existing firearms regulations. The symposium also features an opening address by Northwestern Law Professor James Lindgren and a panel discussion with distinguished experts including Cook County Sheriff Tom Dart, McDonald v. Chicago plaintiff’s attorney David Sigale, University of Chicago criminologists Jens Ludwig and Harold Pollack, and Northwestern Law clinicians Stephanie Kollmann and Dominique Nong. Topics include the Second Amendment, gun access and how it impacts gun crime, conceal and carry laws, sentencing and gun laws, as well as mental health and guns.
The symposium will be held on Friday, February 7, from 4:15 to 6 p.m. in Lincoln Hall here at Northwestern Law. I hope you can join us for what promises to be a very interesting series of conversations.
Consistently ranked among the most influential legal and criminology publications, the Journal of Criminal Law and Criminology is one of Northwestern Law’s student-run publications. Since its inception in 1910, the Journal has captured legal scholarship on crime through the publication of legal articles, criminological research, book reviews, and symposia.
Congratulations and thanks to Kelsey B. Shust, editor-in-chief, and Vanessa Szalapski, symposium editor, who have done a great job organizing this event.
Big sports news this week is the effort underway by Northwestern athletes to seek collective bargaining rights. Northwestern Law prof and employment law expert, Zev Eigen, offers his interesting perspective on this development;
By: Zev. J. Eigen
Kain Colter is a senior at Northwestern University. He has been the co-captain of the school’s football team for two years now. He plays quarterback. How would he describe himself in relation to the school? Would he call himself a student attending a university to receive a college education? Or, would he call himself an employee of Northwestern?
That question will likely determine whether Mr. Colter and a group of athletes at Northwestern will be allowed to form a union under the National Labor Relations Act (“NLRA”). That is the federal law that says that only “employees” may form unions in the private sector.
Ramogi Huma is the president of the newly formed College Athletes Players Association. He is assisting Mr. Colter in his efforts along with the United Steelworkers Union in filing the petition with the National Labor Relations Board for recognition of the union. As Mr. Huma pointed out in a radio interview yesterday, the football players “work” for forty hours per week on football, are directed and controlled by the university, and receive “compensation” in the form of scholarship funding directly tied to students’ playing ball. Those characteristics make them seem at least partially like employees, or at least student-employee hybrids. But the National Labor Relations Board has flip-flopped on the issue of whether another category of student-employee hybrids, namely, graduate students (who receive both an education and are directly paid for teaching classes) are primarily students who happen to work, or whether they are employees who happen to be students receiving an education. It’s not clear how the Board will rule on student-athletes like Mr. Colter, who do not receive direct compensation like grad students do, but receive scholarship funding, and are expected to play a sport, not teach classes. As I have suggested elsewhere, I think student-athletes have an uphill battle ahead of them.
Perhaps a more interesting question than how the law will characterize these student athletes is how the law should characterize them. The NLRA is a 1935 statute that regulates the relationship among unions, employees, and employers. It has not been substantially updated at all except in 1947. I think everyone can agree that a LOT has changed about how work is performed and structured in this country in between then and now. Most importantly, the law does not cover independent contractors and other categories of non-full-time work. In the ’30s and ‘40s, these categories of workers were the exception, now they are becoming more of the rule. More workers now are part-time, temporary workers, freelancers, and independent contractors. It would make sense to update the law to extend coverage to categories of work that now dominate the employment landscape. If for no other reason, this would merely extend protections of the NLRA to the approximate percentage of the workforce that the law initially covered when it was passed.
Don’t hold your breath for change in labor law. This is the most polarized area of law one can imagine. There are pro-labor groups, and there are pro-management groups. Both groups have made proposals to update the laws, but these have been dismissed outright as too partisan by the other side. This is an unfortunate form of what negotiation scholars refer to as “reactive devaluation”—when one assumes that anything proposed by one’s counterpart is automatically not in one’s best interest. The extreme dichotomization is a perfect storm for legislative stalemate. Everyone assumes that the other side’s proposals are partisan, and therefore nothing gets changed, and everyone is made worse off. I have discussed this problem in two articles—here, and here.
My hope is that we are headed towards a tipping point. The law’s intentions to protect collective employee voice and to promote “labor peace” will become so attenuated that it would make sense to either scrap the law entirely or amend it to bolster its modern relevance. Efforts like the Northwestern football players, and others, like mixed martial artists, raise awareness of the need for the laws to be modernized to reflect the more fractured non-traditional forms in which many employment relationships now occur.