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Justice John Paul Stevens Wants to Change the Constitution

Yesterday I had the pleasure of attending the swearing-in ceremony for 40 new Northwestern Law alumni members of the Supreme Court Bar. Carter Phillips, JD ’77, one of the stars of the appellate bar (who recently argued his 77th case before the Supreme Court), led the ceremony.  It was a wonderful event and I was proud to be there.

In chatting with these distinguished Northwestern Law alumni, I was reminded of another—retired Supreme Court Justice John Paul Stevens (JD ’47) who recently wrote an interesting book, Six Amendments: How and Why We Should Change the Constitution. It won’t be on sale until April 22, 2014, but it is already lighting up the blogosphere. ThinkProgress reported on Justice Stevens’ call for an amendment to prevent gerrymandering rather gloomily: “…the Republican Party has six very good reasons not to support an anti-gerrymandering amendment…” Breitbart hastened to illustrate the error of Justice Stevens’ thinking about the Second Amendment by explaining that “…The rights protected by the Second Amendment are individual rights, as are the rights that are protected, but not created, by the First, Third, Fourth, and Fifth Amendments…” These are but two examples of how people are reacting to this book. I’m confident there will be many more, and I’m pleased to see it—we need robust public discussion on the essential issues of our own governance.

Congratulations to the newest members of the Supreme Court Bar, and to Justice Stevens on the book.



Kudos to Erin Delaney: 2014 MacCormick Visiting Fellowship at Edinburgh Law School

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.


Innovation in action: Student-run company to bring new cancer therapy to patients

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.


Center on Wrongful Convictions Women’s Project

A conference tomorrow, March 7, at the Northwestern Law School.

Check it out!


Competition in the new legal marketplace

from another prominent legal futurist, this time Jordan Furlong.

Two thoughts:

On the observation that regulation will wither away, this hasn’t been the path of legal change has predicted over many years.  Regulation in the legal profession (and in legal education) has proved remarkably resilient, even in the face of competitive pressures.  Just consider the stunning lack of bar reciprocity and also the various restrictions on pro se representation.  Or, in the law school context, the limitations on supervised student representation, even where there are enormous unmet legal needs.  So perhaps Furlong is right that regulation is under especially sustained assault and will crumble.  But we shouldn’t count our chickens.

On the “creating new markets” message:  yes indeed.  I have written about this elsewhere on this blog.  In the future — indeed, in the present — lawyers are entrepreneurs and regulatory engineers, business professionals and risk managers.  The business of lawyering is going through significant change, and how JD holders can deploy their skills to improve structures and institutions and business decision-making is an essential modern question.  Law is important for folks other than lawyers; and lawyers are important for business performance in spaces other than traditionally legal.


Legal future?

field trip report from Aric Press of the American Lawyer.

As one of our colleagues mentioned:  it is not clear why the innovation analogy to law and the modern legal profession is apt.  What underlies the claim, he asks, that law firms are too skittish or unimaginative to embrace technological innovation in their business models?  And, indeed, what is the evidence that such innovation has not in fact been embraced in key parts of the practice (e.g., the use of predictive analytics in discovery)?

All of which is to say that the debate about the dynamics of professional change is not one between the “futurists” and the “luddites,” but is actually much more nuanced and complex (and interesting!).


Chicago winter

enjoy this hilarious parody!


Battling Public Corruption

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.


NU Law prof on standing doctrine and the Constitution

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.


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.


Chicago White Sox Centerfielder Joins Global Health Team

From left: Professor Juliet Sorensen, Alejandro De Aza, and Dan Young, deputy director, Center for Global Health, Northwestern University Feinberg School of Medicine

Professor Juliet Sorensen, Alejandro De Aza, and Dan Young, deputy director, Center for Global Health, Northwestern University Feinberg School of Medicine

Alejandro De Aza, leadoff hitter and centerfielder for the Chicago White Sox, helped promote Northwestern University’s Access to Health project with a message to his hometown of Guaymate, Dominican Republic. His 90-second video announcement encouraging a healthy lifestyle debuted at a community health fair held on Guaymate’s baseball fields March 1, 2014. The Access to Health team is working with healthcare practitioners at Guaymate Hospital on a long-term quality improvement project, which evolved from the team’s need assessment following a site visit to Guaymate last spring.

Juliet Sorensen, clinical assistant professor of law in the Center for International Human Rights at Northwestern Law, along with colleagues at the Center for Global Health at Northwestern’s Feinberg School of Medicine, founded the project to leverage their research and clinical expertise in partnership with a community in the developing world to conduct a multidisciplinary needs assessment of that community. Once the team identifies a community, its needs are assessed and, based on the results of that study, both the team and the community identify and implement a sustainable, capacity-building intervention. Northwestern law, business, medical, and public health students in Sorensen’s “Health and Human Rights” class work in interdisciplinary groups on various aspects of the needs assessment, while also taking advantage of the expertise of the University’s engineering faculty to design health projects in the developing countries. Later this month, a team will travel to Mali to work with people there to build health care capacity as the country emerges from civil conflict.

Access to Health is a terrific project, one that demonstrates the power of interdisciplinary work. Bringing people with different skills and training together to work on teams is a very effective way to solve problems, and the experience helps our students become better lawyers. Good luck to Juliet and her students on their trip to Mali!