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A Fresh Look at Judicial Remedies in EU Equality Law and Beyond: The Untapped Possibility of Structural Injunctions.
No full textThis article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy persistent (including “systemic” or “structural”) organizational discrimination. After considering the injunctive demands of Union law, and the appropriateness of structural injunctions, we examine their compatibility with national constitutional traditions. Finally, we analyse different forms of structural injunctions to show how courts may issue them – in what we call their “modern” form – while minding the judiciary’s constitutional role and institutional competence. This article seeks to inform current theory and practice from legislative drafting to enforcement of European equality law, as well as other areas where complex or systemic organizational violations persist. Comparative analysis informs our argument
Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law
No full textUsing a 2020 decision in which a judge granted an interlocutory injunction evicting a homeless encampment from an unused, unfenced, publicly-owned parking lot in the midst of the COVID-19 pandemic as a springboard, I present the first comprehensive survey of British Columbia homeless encampment injunction decisions, revealing a whopping 85% success rate when governments seek interlocutory injunctions against encampments. The stakes are high: Interlocutory injunction applications dominate homeless encampment litigation, exposing encampment residents to continual displacement and elevated risks of isolation, illness, violence, and death. I argue that courts hearing applications for interlocutory injunctions against homeless encampments on publicly-owned land should apply the full three-pronged RJR-MacDonald framework; apply a strong prima facie case standard to the first prong; avoid prejudging complex, contested evidential or legal issues at the interlocutory stage, on the basis of affidavit evidence alone; and raise the bar for interlocutory injunctions to a height that reflects the fundamental interests at stake in homeless encampment cases
From Law and Literature to Legality and Affect by Greta Olson
No full textIN A SPEECH ADDRESSING the Canadian Bar Association in 1970, leading literary critic of the twentieth century Northrop Frye said that “all respect for the law is a product of the social imagination, and the social imagination is what literature directly addresses.”3 In her book From Law and Literature to Legality and Affect, Greta Olson makes an important contribution in her reimagination of law and literature as a discipline. What is remarkable is the extent to which Olson’s thesis, arguing for broadening the scope and aims of the field, gives effect to Frye’s characterization of the field more than half a century before
Constitutional Rights and Remedial Consistency
No full textWhen the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan ofthe Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that nontranssubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additionalcontributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism
Teach Drafting Persuasive Facts by Giving Students What They Want: A Well-Written Sample
No full textProgressive Constitutionalism and Its Libertarian Discontents: The Case of LGBTQ Rights
No full textThis Article, based on the 2023 Childress Memorial Lecture given at the Saint Louis University School of Law, argues that libertarian political morality and constitutionalism constitute double-edged swords for progressives. On the one hand, libertarian principles have helped advance some progressive objectives inside and outside of the courts, including several related to LGBTQ rights. On the other hand, libertarian understandings of the Constitution have undermined a wide array of other progressive distributive and egalitarian objectives. In promoting a generalized skepticism of state action, a progressive constitutionalism that embraces (or fails to question) the libertarian ethos of limited government and exclusively negative rights to liberty might help protect against some of the worst forms of state coercion, but does little to help build a progressive society constructed around distributive justice and the attainment of egalitarian objectives.
This Article argues that if progressives want to successfully harness the power of the state to redistribute resources in ways that make our society more fair and egalitarian as a means of permitting everyone—regardless of class, race, ethnicity, gender, sexual orientation, or disability—to flourish, then we need to purposefully and systematically explore how to make sure that, in pursuing particular political or legal objectives, including those related to LGBTQ rights, we do not unintentionally strengthen the libertarian ethos that so powerfully stands in the way of the attainment of distributive and egalitarian objectives in the U.S. This Article urges LGBTQ rights proponents to articulate and defend moral and constitutional frameworks that are not grounded in a libertarian ethos characterized by atomistic understandings of the self and exclusively negative conceptions of liberty that fail to impose affirmative obligations on the government to create the necessary social and economic conditions that are essential for everyone, and not just the wealthy and powerful, to exercise meaningful liberty and attain meaningful equality
Do Public Accommodations Laws Compel “What Shall be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Elenis
No full textThis article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also cite Barnette’s progeny, including Wooley v. Maynard and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. Business owners, their lawyers, and judges who have invoked these cases argue that state public accommodations laws requiring that businesses not discriminate based on sexual orientation in providing goods and services compel both speech and silence. In 303 Creative, Justice Gorsuch’s majority (6-3) opinion quotes the beginning of Barnette’s “fixed star” passage but adapts it: the fixed star becomes “the principle that the government may not interfere with ‘an uninhibited marketplace of ideas.’” Gorsuch moves from the public school room—in which a state law compelled Jehovah’s Witness children to salute the flag, despite their religious beliefs—to the commercial marketplace, but gives little guidance about how broadly the protection of creative expression in this “marketplace of ideas” will extend. While Justice Gorsuch situates the Court’s protection of website designer Lorie Smith against compelled speech—and orthodoxy—in the commercial marketplace as the latest in a series of courageous First Amendment decisions by the Court protecting individuals against an encroaching state, Justice Sotomayor’s dissent excoriates the majority for departing from the long history of the Court courageously defending citizenship-expanding antidiscrimination laws against backlash and repeated First Amendment challenges. This article argues that 303 Creative’s use of Barnette extracts it from its wartime, antitotalitarian context, ignores crucial distinctions drawn in Barnette, and (as Justice Sotomayor’s 303 Creative dissent warns) “‘trivializes the freedom protected in Barnette,’” while also undermining public accommodations laws. The article also considers the recent invocation of Barnette and its progeny to challenge other forms of governmental regulation, including state regulation of crisis pregnancy centers and state bans on conversion therapy
The Return of Boy Scouts of America v. Dale
No full textIn 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law”—and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.
Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bound by the facts of the case. Freedom of association would not override equality under the law.
The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social service providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.
The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative, LLC v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to the lower courts, where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing
“Just suffering. That’s it!”: Perspectives of Tobacco Farming Households on Tobacco Growing and Alternatives in Mozambique
No full textTobacco is viewed as an important cash crop for farmers in Southern Africa and many countries around the world. This analysis explores the perspectives of farmers who are growing tobacco in Mozambique. The main aim of this analysis is to describe the perspectives of tobacco growers on the conditions of tobacco growing and their perspectives on possible alternatives. This analysis is situated in relation to efforts by countries like Mozambique to implement Article 17 of the WHO FCTC, which outlines the need for governments to support alternatives to tobacco growing.
This study applied a qualitative description methodology to explore the perspectives of farming households on tobacco growing and the conditions that shape their experiences. We conducted focus group discussions in four tobacco growing districts of Angonia, Cuamba, Macanga, and Mandimba in Tete and Niassa provinces . The number of focus group participants ranged from 10 to 24. In each district we conducted two sets of focus groups. One with men (n=4) and one with women (n=4).
We organized our findings in two broad categories. The first category, perspectives on tobacco growing, presents the key features of tobacco growing as described by the participants across regions. Participants emphasized the economic hardships or ‘suffering’ that resulted from tobacco growing. The second category revolves around perspectives on alternatives to tobacco growing and the conditions necessary to switch from tobacco to another crop or other form of livelihood. This second category involved an exploration of the tension between existing alternatives and the inaccessibility of alternatives particularly in relation to alternative crops.
Conclusions: The findings of this study are similar to those from other studies in the region. Small holder tobacco growers in Mozambique share similarities in terms of reason for growing tobacco, the factors that lead to contract farming, and their perspective on the economic challenges faced
Tax Enforcement by the Private Sector: Deputizing Tax Insurers
No full textThe IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with interest and penalties (up to the policy limit) if an insured tax position is successfully challenged by a tax authority. The tax insurance industry has grown dramatically since the mid-2010s, but scholars and policymakers pay little attention to its enforcement-enhancing potential. This is a mistake because insurers have informational, expertise, and capacity advantages over the IRS, because of the industry’s recent explosive growth, and because more robust enforcement is needed among precisely those taxpayers served by tax insurers. This Article proposes a novel regime in which tax insurers that voluntarily commit to insuring only strong tax positions would be effectively deputized as private sector tax enforcers. The IRS would treat any positions insured by them as likely compliant, having been “sustained” in a private “audit.” In theory, with the right combination of sticks and carrots, private sector tax enforcers could be incentivized to live up to their commitment to “sustain” only strong positions, and taxpayers could be incentivized to pursue “audits” by private sector tax enforcers that live up to those commitments. Given these mutually reinforcing incentives, the IRS could rely on those private sector “audit” determinations and reallocate enforcement resources toward taxpayers and tax positions more likely to be noncompliant. If the potential concerns presented by this proposal can be overcome (a task that might prove challenging), the proposal could harness a growing private sector industry for the public good