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The Evolution of Sodomy Decriminalization Jurisprudence in Transnational and Comparative Constitutional Perspective
Get PDFIn this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, legislators, claimants, and judges from the United Kingdom and United States in the 1950s through 1970s that shaped the claims-making in Dudgeon and Toonen. Conversely, I argue that the difference between the outcomes in Bowers v. Hardwick and Lawrence v. Texas can be explained in part by developments in transnational equality and human dignity jurisprudence that resulted in a shift from the privacy legal frame to the equality and human dignity legal frame and a shift from a spatial conception of privacy to a decisional (personal choice) conception of privacy. Additionally, I move beyond scholarship centered on European and U.S. case law to include the jurisprudence from the Global South (2005 to present) that, to my knowledge, has yet to be analyzed systematically and comparatively. My Article is among the first to analyze the five landmark decriminalization cases decided in 2022, and one of the few that discusses judicialized sodomy decriminalization in transnational and comparative constitutional perspective.
This inquiry is retrospective: how has legal mobilization and comparative methodological jurisprudence contributed to understandings of sexual freedom and the justifications for sexual freedom? But it is prospective as well. Sixty-six countries retain sodomy prohibitions; will the sodomy decriminalization trend continue, and if so, what role(s) will legal mobilizations play? There is also the question of backlash and retrenchment—whether homosexual conduct will be recriminalized in jurisdictions that have decriminalized. In 2022, in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas essentially invited reactionary and regressive forces in society to bring to the U.S. Supreme Court cases that would overturn Griswold v. Connecticut and its progeny in the LGBTQ rights space—Lawrence and Obergefell v. Hodges. I recommend activists and their allies begin the work of upholding Griswold, Lawrence, and Obergefell by exploring not only U.S. domestic jurisprudence but also transnational jurisprudence—in international human rights law and comparative constitutional law—to support the continued legalization of adult, consensual, same-sex sexual conduct and same-sex marriage
The Liability Trap: Why the ALEC Anti-ESG Bills Create a Legal Quagmire for Fiduciaries Connected with Public Pensions
Get PDFTwo proposed bills barring public pensions from considering environmental, social, and governance investment criteria create massive legal risk for any pension fiduciary or service provider. The American Legislative Exchange Council “boycott bill” and the “fiduciary duty” bill, if adopted, would impose irreconcilable legal requirements on such fiduciaries, and subject them to compliance with arbitrary and unworkable legal demands.The main legal problems the bills create fall into four categories:(1) the unworkable distinction between “pecuniary” and “non-pecuniary,” a distinction so blurry that the bills are self-contradictory, as we demonstrate;(2) the clash between the bills’ definition of materiality and that established by the Supreme Court of the United States, such that state law would bar consideration of investment information that federal law requires;(3) similarly vague and self-contradictory requirements to boycott companies that engage in ESG, and(4) the transfer of control of proxy voting to elected officials, thereby ensuring the politicization of such voting in direct conflict with the bills’ stated goals.The boycott bill and the fiduciary duty bill dramatically increase liability risk for plan fiduciaries and service providers without providing any corresponding or even off-setting benefits to fiduciaries or their members. They will reduce the number of service providers willing to work with such pensions, increase liability, insurance, and investment costs for taxpayers, and fund participants and beneficiaries. They should be rejected
The Ghosts of Chevron Present and Future
Get PDFIn the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and policy significance. Where does the Chevron doctrine now stand?
I take a close look at the six Supreme Court cases decided during the October 2021 term, including a close look at the arguments advanced by the parties (and by sometimes numerous amici) in those cases to provide a descriptive account of the Supreme Court’s current treatment of Chevron and the major questions doctrine. My principal goal is to not to lay out a Grand Theory of Chevron or deference doctrine in general but simply to provide a snapshot of current Supreme Court doctrine and a framework for further theoretical work, in whatever direction that theoretical work goes.
I do, however, offer some speculations, for whatever they are worth, about the future of Chevron in the lower federal courts. The Supreme Court did not create the Chevron doctrine. The doctrine was created by lower courts and eventually taken over, and modified, by the Supreme Court. If lower courts originally created the doctrine (as I think they did) principally to make it easier to decide difficult administrative law cases, any reformations in doctrine that come from the Supreme Court may face a hostile reception unless the Court provides alternative mechanisms for decision that respond to the realities, not of a Court with a discretionary docket that decides a small handful of administrative law cases each year, but of a lower court system that must handle these cases by the thousands
“Do Not Ever Refer to My Lord Jesus Christ with Pronouns”: Considering Controversies over Religiously Motivated Discrimination on the Basis of Gender Identity
Get PDFIn the by-now familiar framing “religious freedom versus LGBT+ rights,” perhaps the most visible conflicts today in the United States, and elsewhere, concern the “T”—transgender or gender identity rights. This issue of the Journal of Law and Religion includes a conversation in print between Patrick Parkinson, Laura Portuondo and Claudia Haupt, and Shannon Gilreath on this timely topic, and their contrasting perspectives mirror dimensions of the larger public controversies. Although tweets like those quoted above (by unsuccessful Republican congressional candidate Lavern Spicer) asserting that neither the Bible nor Jesus had pronouns sparked both factual corrections and comical retorts, 3 the underlying issues about religious stances on transgender rights are serious. Midway through 2022, state legislatures in the United States had already considered or passed a “record” number of bills seeking to restrict LGBTQ rights, with “most” of those bills “target[ing] transgender and nonbinary people, with a particular emphasis on trans youth.”4 These bills range from restricting gender-affirming care for minors to restricting what teachers may teach in schools to requiring transgender persons in public facilities like schools to use single-sex bathrooms and locker rooms based on their sex assigned at birth.5 One overview of such legislative efforts identified protecting “religiously-motivated discrimination against trans people” (such as religious exemptions from antidiscrimination laws) as one aim. 6 At the same time, some other state legislatures have taken steps to protect transgender persons, for example, by protecting their access to gender-affirming care and the rights of medical professionals to provide that care.7 Further, citing the Supreme Court’s decision in Bostock v. Clayton County, 8 the Biden administration has issued executive orders declaring a policy to “prevent and combat” discrimination on the basis of gender identity and sexual orientation through enforcing Title VII and other civil rights laws (including Title IX, which prohibits sex discrimination in education)
Trends in the global antibiotics market
No full textThe global antibiotics market has changed substantially in the past two decades. We examined data on this market tracked by the IQVIA Institute for Human Data Science to understand some of the environment surrounding the well-documented departure of large companies from research and development (R&D) on innovative antibacterial drugs and the financial crises faced by smaller companies in this period
National Telecommunications and Information Administration: Comments from Researchers at Boston University and the University of Chicago
Get PDFThese comments were composed by an interdisciplinary group of legal, computer science, and data science faculty and researchers at Boston University and the University of Chicago. This group collaborates on research projects that grapple with the legal, policy, and ethical implications of the use of algorithms and digital innovation in general, and more specifically regarding the use of online platforms, machine learning algorithms for classification, prediction, and decision making, and generative AI. Specific areas of expertise include the functionality and impact of recommendation systems; the development of Privacy Enhancing Technologies (PETs) and their relationship to privacy and data security laws; legal regulation of platforms under privacy, intellectual property, and antitrust laws; the science of monitoring and measuring the behavior of large deployed systems and networks; and programming languages and the science of rigorously specifying and verifying properties of algorithms and information systems
Beyond More Accurate Algorithms: Takeaways from McCleskey Revisited
Get PDFMcCleskey v. Kemp1 operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.2 By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.3 But what if McCleskey had been decided differently? Given that Washington v. Davis4 held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”5 could McCleskey have articulated an approach to equal protection doctrine that would have been capable of addressing the sophisticated and sometimes technologically advanced methods by which racial hierarchy is reinforced and protected in criminal administration today?
It is with this question in mind that I read Professor Mario Barnes’s6 rewritten McCleskey decision, which appears as a chapter in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, edited by Professors Bennett Capers, Devon W. Carbado, R.A. Lenhardt, and Dean Angela Onwuachi-Willig. Using critical race theory, Professor Barnes shows us a different way forward. Critical race theory is an intellectual movement that provides a lens to study the relationship between law and racism. As Professor Capers explains, its aim is to confront and “transform[] the relationship between law and white supremacy to reshape American jurisprudence in a project of racial emancipation and anti-subordination.”7 When critical race theory enters the frame, it brings with it a distinct way of knowing about race, as well as racial discrimination, its effects, and potential avenues for its amelioration.8 For this reason, Professor Barnes offers us more than just an alternative world where Warren McCleskey prevails. He puts forth a framework that would have equipped courts with a set of interdisciplinary and empirical tools to identify and abolish the power of colorblind ideology to encase racially inequitable systems.9
To highlight the importance of Professor Barnes’s contribution, this Review will apply Professor Barnes’s framework to a current racial justice challenge: the use of racially biased risk-assessment algorithms within criminal administration.10 I start by contextualizing how McCleskey foreclosed the possibility of using the discriminatory intent doctrine to address the challenge posed by these algorithms.11 I then introduce Professor Barnes’s framework and imagine how it could be deployed in a current setting. I conclude by addressing implications
Waivers
Get PDFWaiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. The aim of this paper is to offer a consistent set of policies that can form the foundation of a consistent set of doctrines, leading ultimately to a more apparently consistent treatment of waivers in the courts. The most basic piece of this paper’s framework is a contract theoretic analysis of the wealth (or welfare) created by a contractual provision. In this framework, waivers should be enforceable when they are likely to increase the welfare of the contracting parties, and otherwise not enforceable. Waivers are likely to increase the welfare of the parties when litigation is likely to reduce their welfare. Litigation is wealth reducing when the social value of the deterrence created through litigation is low relative to the costs of litigation. The social value of deterrence is low, in turn, when the productivity of precaution, in terms of accident avoidance, is low – in other words, additional precaution has little or no “bang for the buck”. These general propositions send me on a search for the factual conditions associated with low productivity precaution. The most important ones are inherency of risk and the existence of multiple causal factors. I find the cases are consistent with this precautionary productivity thesis. The immediate implication is that waivers generally are not enforceable or unenforceable according to their language. Waivers are enforceable contextually, conditional on facts indicating inherency of risk or weak causation