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Brief of Amici Curiae Professors Nan D. Hunter, et al., Addressing the Merits in Support of Respondents
Get PDFIn this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed under this sub silentio heightened rationality test in Romer v. Evans and Lawrence v. Texas, but the Court did not make explicit its standard of review in either opinion. The result has been widespread confusion in the lower federal courts as to which standard to apply.
With the growing demographic diversity of the U.S. population, the problem of how to analyze discrimination against a minority that is not already assigned a level of scrutiny will only worsen. In this case, the question arises in the context of sexual orientation discrimination, but there will be other, different examples of invidious discrimination in the future, even if we cannot predict with certainty what those will be. In recognition of that inevitability, the Court should act now to bring coherence and clarity to the law of equal protection.
The brief’s authors propose that the Court adopt a two-part test: first, does the context of the legislature’s enactment of the classification suggest invidiousness, animus, or stereotyping; and second, is the burden imposed by the classification discontinuous with or disproportionate to any legitimate objectives proffered by defenders of the law. This contextual approach is especially useful when a classification, such as age or developmental disability, may be invidious in some instances but not in others.
The Defense of Marriage Act (DOMA) fails any standard under the Equal Protection Clause, including the one proposed here. Petitioner relies chiefly on the argument that DOMA is constitutional because of Congress’ desire to link the benefits of marriage to responsible childrearing, assertedly the rearing of children in a home with a married mother and father. However, the breadth of DOMA, which affects every federal law related to marital status, including those having no connection to procreation, belies that this was a neutral legislative goal. In addition, the burden placed on same-sex couples and, when present, their children greatly exceeds any hypothetical benefit that the law is likely to produce by encouraging heterosexual parents to marry. For these reasons, DOMA should be declared unconstitutional
Supreme Court Institute Annual Report, 2012-2013
Get PDFDuring the 2012-2013 academic year–corresponding to the U.S. Supreme Court’s October Term (OT) 2012–the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Court this Term, offered a variety of programs related to the Supreme Court, and hosted several delegations of foreign visitors. A list of all SCI moot courts held in OT 2012–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of student observers–follows the narrative portion of this report
Top 10 Law School Home Pages of 2012
Get PDFFor a fourth consecutive year, every website home page of every ABA-accredited law school is evaluated and ranked based on objective criteria. The goal is to identify well-executed sites adopting best practices. For the 2012 report, twenty-six elements are evaluated across these three categories: Design Patterns and Metadata, Accessibility and Validation, & Marketing and Communications. For 2012, there are four new elements, two prior elements have been combined, and one element was dropped.
For 2012, forty-six schools now use the HTML5 doctype, which is up from thirteen in 2011 and just one in 2010. Eighteen schools achieve perfect scores in an adjusted web accessibility evaluation, which is a slight increase over previous years. One of the new elements awards points for use of Responsive Web Design practices, which is a page layout method that shifts the order and number of elements on a page, based on the screen size displaying the content. Our survey discovered fourteen home pages using responsive web design.
As has been the case since this annual study launched in 2009, there is still no objective way to account for good taste. For interpreting these results, please decide for yourself whether any home page is greater or less than the sum of its evaluated elements
Decision Theory and \u3ci\u3eBabbitt v. Sweet Home\u3c/i\u3e: Skepticism About Norms, Discretion, and the Virtues of Purposivism
Get PDFIn this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is a far easier case than either Justice Stevens’s or Justice Scalia’s opinions reveal. Finally, the author critiques both opinions for failing to rely on norms borrowed from Congress’s actual decisions in the 1982 Endangered Species Act Amendments. The question then, is not “norms or not,” but whose norms, Congress’s or the courts’, should apply
Better Health, But Less Justice: Widening Health Disparities After \u3ci\u3eNational Federation of Independent Business v. Sebelius\u3c/i\u3e
No full textAt the time it was enacted in 2010, the Patient Protection and Affordable Care Act (ACA) was widely applauded by health activists, as it meant that the United States would at last join the overwhelming majority of industrialized countries in providing its population with guaranteed access to affordable health care. Roughly half of the increase in access to health insurance was to come from the expansion of Medicaid eligibility to all U.S. citizens and legal residents with income below 138% of the Federal Poverty Level. However, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius (NFIB) essentially converted the Medicaid expansion into an option for states, and many (fourteen at the time this article went to press, including states with enormously high rates of uninsured residents, such as Texas) have chosen not to participate. Since NFIB, the Congressional Budget Office has reduced its initial estimate of the number of individuals who were to gain coverage under the ACA, from thirty-two to twenty-nine million. But the accuracy of these estimates is subject to question; given the number of states that are opting out, the number could well be far higher. In a turn of events entirely unanticipated when the ACA was enacted, the legacy of the ACA may be that it contributes to widening health disparities rather than the reduction that had been expected by its supporters.
This result is an injustice that cries out for reform. A first step in that direction is ensuring that states are in possession of—and made to acknowledge—accurate information regarding the economic costs of the Medicaid expansion, which are far less than the potentially bankrupting amount that has been portrayed in some corners. A second step is to emphasize the importance of the incorporation of public health in health policy analysis and design; in addition to benefiting individual health, universal access to health services improves public health. Finally, and most critically, strong voices must demand that health policy be implemented such that it achieves justice for the poorest and most vulnerable among us. Without action to rectify the ACA’s unintended consequences, the United States seems likely to consign its poorest and most vulnerable residents to a continued tenuous health status, in which the only options for care are emergency rooms and those institutions that are willing to provide free or nearly free health services
Judges! Stop Deferring to Class-Action Lawyers
Get PDFThe idea for this article came from the author\u27s representation of a national non-profit consumer rights organization in a federal appeal challenging a district court’s approval of a class-action settlement. The organization\u27s appellate briefs argued that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ views, the settlement was fair, reasonable, and adequate (which is the standard for class-action settlement approval under Federal Rule of Civil Procedure 23(e)). The district court also deferred to the lawyers\u27 reputations as talented and honest lawyers.
In this article, the author maintains that proper class-action administration demands that in considering whether to approve a class-action settlement, a court should never defer to the views or reputations of the lawyers who are seeking the settlement\u27s approval. Rather, the court should always exercise its independent judgment as to whether the proposed settlement is fair, reasonable, and adequate. The court\u27s exercise of independent judgment is needed, the author maintains, to protect the interests of absent class members
The Strange History of The Bill of Rights
No full textOn April 10, 2013, William Rand Kenan, Jr., Professor of American History, Pauline Maier of Massachusetts Institute of Technology, delivered the Georgetown Law Center’s thirty-third Annual Philip A. Hart Memorial Lecture: The Strange History of the Bill of Rights.
Pauline Maier was the William Rand Kenan, Jr., Professor of American History at MIT. She went to Radcliffe College (Class of 1960), spent a year as a Fulbright scholar at the London School of Economics, and received her Ph.D. in History from Harvard in 1968. She was on the faculty of the University of Massachusetts, Boston, and the University of Wisconsin, Madison, where she was the Robinson-Edwards Professor of History, before going to MIT in 1978. She has served on the boards of several journals and historical organizations, is a member of the American Academy of Arts and Sciences, and holds honorary doctorates from Regis College (1987) and Williams College (1993). She was president of the Society of American Historians for 2010-2011.
As a scholar, she writes mainly on the American Revolution and its heritage. She is best known for American Scripture; Making the Declaration of Independence (Knopf; New York, 1997), which was on the New York Times Book Review editors\u27 choice list of the eleven best books, fiction and nonfiction, of 1997 and a finalist for the National Book Critics’ Circle Award, and for Ratification: The People Debate the Constitution, 1787-1788 (Simon and Schuster; New York, 2010). The New York Times Book Review included Ratification on its annual list of 100 notable books published in 2010; the Wall Street Journal put it among the top ten books of 2010, and Esquire magazine among the ten best books of 2011. Ratification won the 2011 Frances Tavern Museum Book Award (shared with Ron Chernow’s Washington: A Life) and the George Washington Book Prize, which is awarded annually to the best book on America\u27s founding era, especially those that have the potential to advance broad public understanding of American history. It also won the Ruth Ratner Miller Award for “excellence in American History,” the Henry Paolucci/Walter Bagehot Book Award, and the American Historical Association’s Littleton-Griswold Book Prize for the best book on law and society. Professor Maier was a consultant and prominent talking head for several PBS television series, including Liberty! The American Revolution (1997), “Biography of American” and “Primary Sources” (2000 and 2001), and “Benjamin Frankin” (2002). She has also appeared on several programs on the History Channel, and was interviewed for C-SPAN’s “In Depth” series on Book TV
Sovereign Damage Control
No full textItaly changed its debt contracts, Belize passed new debt legislation, and Taiwan sued Grenada this year, all in response to a string of court rulings in New York that tried to make Argentina pay its debts from its financial crisis in 2001. The court rulings have gone to unprecedented lengths to isolate Argentina but are unlikely to make the country pay. The rulings, however, do threaten collateral damage to other countries and parts of the financial system. The lawsuit—NML Capital Ltd. et al. v. Republic of Argentina—promises to shift the balance of power from sovereign debtors to their creditors. The shift would come courtesy of one obscure debt contract term, the pari passu clause, that has gained destructive power in a case where the government and its creditors are uniquely willing to test the limits of the law. The impact may be magnified against the background of public debt distress in Europe, new emerging-market restructurings, and regulatory focus on clearing and payment systems
What Privacy Is For
Get PDFPrivacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. Its function is principally a defensive one; it offers shelter from the pressures of societal and technological change. So characterized, however, privacy is reactive and ultimately inessential.
In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. The self who is the real subject of privacy law- and policy-making is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, the purpose of privacy is quite different. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which self-definition and the capacity for self-reflection develop.
So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk. First, privacy is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance, whether public or private, is foundational to the capacity for critical self-reflection and informed citizenship. A society that permits the unchecked ascendancy of surveillance infrastructures cannot hope to remain a liberal democracy. Under such conditions, liberal democracy as a form of government is replaced, gradually but surely, by a form of government that I will call modulated democracy because it relies on a form of surveillance that operates by modulation: a set of processes in which the quality and content of surveillant attention is continually modified according to the subject’s own behavior, sometimes in response to inputs from the subject but according to logics that ultimately are outside the subject’s control. Second, privacy is also foundational to the capacity for innovation, and so the perception of privacy as anti-innovation is a non sequitur. A society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. Efforts to repackage pervasive surveillance as innovation — under the moniker “Big Data” — are better understood as efforts to enshrine the methods and values of the modulated society at the heart of our system of knowledge production. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value
A Systematic Plan for Firearms Law Reform
Get PDFTragedy after tragedy has drawn the nation’s attention towards gun violence. Yet the murder of 20 school children in Newtown, CT has done more to drive the national dialogue on gun control than any preceding mass shooting, not to mention the endemic murderous violence that plagues city streets day in and out. President Obama has responded by calling on Congress to (1) close background check loopholes; (2) ban assault weapons and high-capacity magazines; and (3) improve mental health services. All of these measures are necessary to curb gun violence. Yet, in a nation with more firearms per capita than anywhere in the world, they are not sufficient.
Violence is depicted and even glorified in the media; law enforcement lacks the ability to track stolen or illegally traded arms; and the National Instant Criminal Background Check System is vastly deficient (and not always consulted before a sale). The public health threat of firearms—whether through inner-city violence, mass murders, suicides, or inadvertent firearm discharges—is tremendous, and reasonable firearm restrictions are both critical and in high public demand. Yet Congress has stalled comprehensive gun safety legislation for years (e.g., mandatory trigger locks, fingerprint and tracking technology, training requirements, limits on mass sales). Moreover, President Obama’s renewed call for change does not touch on these strategies. In short, federal, state, and city officials lack the basic tools needed to detect, prevent, and punish firearm related crime. Before Newtown becomes another sound bite, it must inspire the greatest bipartisan courage to at least stem the mass shootings and street killings that our newly found individual right to bear arms has made so prevalent