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The Incoherence of Marital Benefits
Get PDFEn route to finding the Defense of Marriage Act (DOMA) an unconstitutional violation of the Fifth Amendment\u27s Equal Protection Clause, the Second Circuit Court of Appeals in Windsor v. United States gave short shrift to one of Congress\u27s primary arguments in defense of the Act: that the federal government has a compelling interest in limiting federal marriage benefits to opposite-sex couples because traditional marriage has the laudable purpose-or function-of channeling the heterosexual sex that creates children into a way of life that provides the optimal environment for the rearing of those children. In other words, DOMA aims to minimize irresponsible heterosexual sex and procreation, thereby limiting the number of children born outside of marriage and minimizing the dependency of single parents and their children on state assistance. As a number of courts-whether state or federal, and whether operating under state or federal constitutional guarantees-have done in reviewing DOMA, the Second Circuit gave the responsible procreation argument only cursory treatment. Essentially, the Second Circuit reasoned (no doubt, correctly) that extending federal marriage benefits to all married couples-both sameand opposite-sex-will not affect the incentives of heterosexual couples to marry, and therefore should not threaten any state interest in encouraging marriage among heterosexuals who, by force of desire or nature, may be inclined to produce children as a result of their mutual lust. Finding no state interest sufficiently compelling to justify what appears to be an irrational classification, the court declared DOMA unconstitutional.
The responsible procreation theory fails not because it is bizarre or incoherent; it is considerably more coherent, albeit dated, than either the Second Circuit or traditional marriage\u27s many critics seem willing to admit. Rather, it fails because the argument behind it rests on premises that are no longer true-if they ever were-and because the exclusions it suggests, however coherent, are now simply cruel and unwarranted
Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform
Get PDFThere is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case.
Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively and symbolically to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, challenges distorted notions of race and maturity, and holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires that prosecutors evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and more frequent crime among youth of color, prosecutors have a duty to evaluate that behavior in light of the current developmental research and respond to that conduct with the same developmentally appropriate options that are so often available to white youth.
As the gatekeepers of juvenile court jurisdiction, prosecutors should work with developmental experts, school officials, and other community representatives to develop and publish juvenile charging standards that reflect these goals. To increase transparency and encourage buy-in from the public, Professor Henning recommends that prosecutors track charging decisions according to race and geographic neighborhood and provide community representatives and other stakeholders with an opportunity to review those decisions for disparate impact. Finally, to ensure that communities of color are able to respond to adolescent offending without state intervention, Professor Henning contemplates a more expansive role for prosecutors who will engage and encourage school officials and community representatives to identify and develop adequate community-based, adolescent-appropriate alternatives to prosecution
Distinguishing Probability Weighting from Risk Misperceptions in Field Data
Get PDFThe paper outlines a strategy for distinguishing rank-dependent probability weighting from systematic risk misperceptions in field data. Our strategy relies on singling out a field environment with two key properties: (i) the objects of choice are money lotteries with more than two outcomes and (ii) the ranking of outcomes differs across lotteries. We first present an abstract model of risky choice that elucidates the identification problem and our strategy. The model has numerous applications, including insurance choices and gambling. We then consider the application of insurance deductible choices and illustrate our strategy using simulated data
Ruth Bader Ginsburg\u27s Equal Protection Clause: 1970-80
Get PDFProfessor Ruth Bader Ginsburg of Columbia Law School was the leading Supreme Court litigator for gender equality in the crucial decade, 1970-80. In addition to teaching her classes, producing academic articles, and co-authoring the first casebook on sex discrimination and the law, she worked on some sixty cases (depending on how one counts), including over two dozen cases in the Supreme Court. Rumor has it she did not sleep for ten years; her prodigious output gives the rumor some credence. Her impact on the law during that critical decade earned her the title the Thurgood Marshall of the women\u27s movement and secured her place in history-even before she became a federal appellate judge and Supreme Court justice.
The author devotes her allotted space to two, intimately intertwined, topics: first, Ruth Ginsburg and the Supreme Court\u27s standard of review in sex discrimination cases, and second, the substance of Ruth Ginsburg\u27s concept of gender equality in law
Of Law and the Revolution
Get PDFThe Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws annulled and then reclaimed in another form; in fact so much so, that to trace the historical unfolding of the Egyptian revolution, one would be wise to use the Gazette and law reports as one’s primary guide through the maze of events. It is hard to miss the fact that in the case of Egypt, no sooner the public space opened up for the political as an autonomous sphere–one that is only possible through genuine democratic practice–than that sphere became annexed by the legal
International: National Security vs. International Law?
No full textThis is a link is to a panel discussion held at the The Federalist Society for Law and Public Policy Studies 2012 National Lawyers Convention in Washington, DC on November 16, 2012, in which Professor Rosa Brooks participated
Banks and Governments: An Arial View
Get PDFFinancial systems and public treasuries are communicating vessels: strength or weakness in one flows to the other, and back. This chapter considers the implications of this insight using case studies from Europe, Asia, and Latin America. The connection is not unique to Europe, although it does not always result in feedback effects, or the ‘doom loop’ that has made headlines since 2010. Events now known as banking or government debt crises often have had elements of both, and could have gone either way. Policy and political choices determined their path. In all cases, governments were as indispensable for resolving banking crises as banks were for resolving sovereign debt crises. As capital movements have become more rapid and global, the bank-government link has turned more destructive, prompting proposals to break it for good. Some of these proposals may adjust, elaborate, or displace the link. None would break it. Instead of chasing the fantasy of total separation, the policy goal should be to reduce destruction and harness the link in the name of financial stability
Why Jeremy Waldron Really Agrees with Me
Get PDFHerewith a response to Jeremy Waldron\u27s review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims
Lies Without Liars? Janus Capital and Conservative Securities Jurisprudence
Get PDFThe Supreme Court’s recent Janus Capital case offers a reading of the word “make” in Rule 10b-5 that speaks to ultimate legal authority over the communication in question. This creates the real possibility that we can have lies without liars, an entirely perplexing result in terms of any purposive meaning of the rule. In so holding, Justice Thomas joined a seemingly short list of judges who suggest that legal formalism is a particularly good weapon with which to fight securities fraud. This paper exploresJanus through the lens of conservative textualism, which takes us through a much longer intellectual history with respect to secondary liability (well beyond Central Bank of Denver) than is generally acknowledged. It makes two important claims: first, that a better reading of the opinion is one that limits it to private securities litigation, not SEC enforcement, even though the early precedent tilts in the other direction; and second, that Janus also plants seeds for a conservative retrenchment on the meaning of the “in connection with” requirement under Section 10(b) and Rule 10b-5, at least as applied to private securities litigation. It then examines some open questions under the “ultimate authority” test—the ability to reach officers and directors of the issuer, the problem of informal publicity, attribution of knowledge and “scheme” pleading, and considers whether the SEC can overturnJanus on its own by a simple clarifying amendment to its rule
Communicative Content and Legal Content
Get PDFThis essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between communicative content (the linguistic meaning communicated by a legal text in context) and legal content (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules