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The Pregnant Citizen, from Suffrage to the Present
No full textThis Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed-initially allowing government to enforce traditional
family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny.
It is generally assumed that the Supreme Court's 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision's authority.
In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not "used, as they once were ... to create or perpetuate the legal, social, and economic inferiority of women." In Nevada Department of Human Resources v. Hibbs, the Court then applied the
antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed.
I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision.
When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldigand see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law
Translating the Constitution
No full textFidelity and Constraint: How the Supreme Court Has Read the American Constitution is a dazzling book-crammed full of interesting ideas and a wealth of remarkable reinterpretations of the constitutional canon, and written in an engaging and accessible style. As its subtitle implies, the book is a rational reconstruction of the U.S. Supreme Court's practices of interpretation from the Founding to the present. In this process of rational reconstruction of the Court's work, Lawrence Lessig' treats doctrinal developments with charity-some would say excessive charity. Lessig tries to explain, for example, why the post-Reconstruction Court thought that it had to read the Reconstruction Amendments narrowly at the expense of African Americans, why the Lochner-era Court felt it had to protect freedom of contract, and why the same Court felt compelled to strike down Franklin Roosevelt's New Deal programs (pp. 92-94, 130-31, 301, 324-25, 332-34). Lessig explains that the justices did so because they wanted to be faithful to the Constitution's
meaning, to their professional role as judges, or to both.
The book makes a descriptive claim that eventually becomes a normative claim. The descriptive claim is that the U.S. Supreme Court has responded to changing circumstances by translating original meaning into new doctrines that may have no basis in the Constitution's text. The justices try to preserve the meaning of the Constitution's text in its original context by producing equivalent meanings in a changed social context. This process of translation is fidelity to meaning (pp. 5, 49-64).
A recurring problem with these translations, Lessig argues, is that they may turn out to conflict with the Court's fidelity to its role as a court of law. Then the justices must sacrifice fidelity to meaning through translation in order to maintain fidelity to role. As a result, the Supreme Court's practice has been shaped by the sometimes competing and sometimes complementary
duties of fidelity to meaning and fidelity to role (pp. 18, 43)
The First Amendment and the Right(s) of Publicity
No full textThe right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.
At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff's performance, the commercial value of a plaintiff's identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff.
Plaintiffs' interests in their identity must always be weighed against defendants' constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant's misappropriation of a plaintiff's identity can occur in public discourse, in commercial speech, or in what we call "commodities." We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect.
The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain
Dining Out in the Eleventh Circuit: "A La Carte" and "All-or-Nothing" Approaches to Choice of Law
No full textWhether you're thinking of judicial opinions or you're thinking of legal scholarship, it's hard to deny the depth of disagreement that exists over how to select the law applicable to multistate cases. In some states, judges decide choice of law questions according to tried and true principles of their forefathers. In others, the judges seem ready to road test almost any eccentricity that law reviews see fit to publish. The divisions among scholars are even more pronounced. Choice of law theorists have been at each other's throats for decades and the gap does not seem to be closing anytime soon. Rarely do the experts change their minds about the major issues in the field; and even more rarely do they change each other's.
But stubbornness is not the issue here. To the contrary, we are more interested in those cases where a state somehow decides that
change is necessary. For therein lies an interesting question of judicial process. Should a state's courts adopt a change to choice of law as an integral package-a theoretical whole? Or should they make big changes bit by bit? Beneath this question's innocent facade lurks a real Pandora's Box.
Choice of law theories are all grounded on foundational premises about the nature and purpose of law and sovereignty. Differences among the various choice of law methodologies in their foundational premises virtually guarantee the incompatibility of different choice of law theories. It would therefore be reasonable to assume that adoption of a choice of law approach by a state's high court means acceptance of and commitment to that approach's foundational premises for all choice of law purposes. Adopting one theory therefore seems to entail rejection of the others
The Sickest Patients Need the Most Medicine: A Response to Margalioth and Webber on Law and Macroeconomics: Legal Remedies to Recessions
No full textYoram Margalioth and David Webber offer fascinating, yet very different, takes on Law and Macroeconomics: Legal Remedies to Recessions. Instead of responding to their insightful comments seriatim, I will highlight a common theme that I believe underlies both of their respective comments.
My book argues for expansionary legal policy—law and regulation should seek to stimulate spending in the economy when there is excess unemployment. Webber acknowledges the analytical case for expansionary legal policy, but express concern about the practicalities. As Webber asks:
How should legal actors know when to begin applying macroeconomic considerations and how will they know what to do? Should the Federal Reserve file legal briefs asking for just such consideration and suggesting courses of action? How else will judges know what the right course of action is, even if they are willing and able to consider macroeconomic effects
Gun Owners Support the Right Not to Bear Arms
No full textDonna's Law would allow individuals who fear suicide to prevent their own impulsive gun purchases. Research shows that many people would sign up, and versions of Donna's Law have passed in Washington State and Virginia. This study is the first to assess public support for enacting Donna's Law. We find broad support overall, including majority support among Republicans and gun
owners. There is room for consensus around this voluntary measure to reduce gun suicide
Private Markets, Public Options, and the Payment System
No full textThe speed at which money moves between people and businesses in the United States lags well behind international standards. Slow payment speeds lead to inefficiency across the economy, drive demand for high-cost credit products, and have hampered the federal response to 2020’s pandemic-driven economic crisis. To speed up the payment system, the Federal Reserve (“Fed”) has announced its intention to build “FedNow,” a publicly operated, real-time payment platform, which would compete with a privately run platform in the interbank payment market. Critics claim that the Fed’s plan represents a historically unprecedented—and possibly illegal—encroachment on turf that properly belongs to the private sector. Against the Fed’s critics, we argue that the FedNow plan holds the capacity to achieve three objectives at the heart of payment policy in the United States: to catalyze innovation, enhance access to developing payment networks, and shore up financial stability
Murray Excellence in Scholarship Lecture at Duquesne Law School on March 21, 2019
No full textI thought I would start by talking a little bit about what brought me to write Locking Up Our Own.
Two motivations stand out. The first has to do with African American portrayals in popular media. Whenever I see a film or a
television show that is completely void of African American representation in the narrative-or, just as bad-with one character who
is made to stand in for the entire black community or represent the entire black perspective, it makes me a little angry. If it's a television show, I might just turn it off, because I refuse this distortion of the truth. The truth is a community that is diverse, complex, and full of individuals who disagree with one another.
Of course, Hollywood isn't the only place with this narrative problem. It lives in our politics and has mapped itself onto history. I
knew that in this book, I wanted to tell the story of the last fifty years through the lens of African American communities, citizens, and leaders in their full depth and complexity. I wanted to show the intellectual, cultural, social, and political history that so often
gets written off or written out. In other words, I wanted to tell the truth.
The second motivation came from my work in the criminal legal system. There are a lot of personal stories in this book, but there's one that really captures why I wanted to write it. It's a story from the introduction, and I would like to share some of it with you now
What's in Your Wallet (and What Should the Law Do About It?)
No full textIn traditional markets, firmscan charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), in which firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohiov American Express, requiring that anti competitive harm on one side of a two-sided market be weighed against benefits on the other side. Legal scholars denounce this decision, which, practically, will make it much more difficult to wield antitrust as a tool to rein in two-sided markets. This inability is concern in gas two-sidedmarkets are growing in importance. Furthermore, the pricing structures used by platform scan be regressive, with those least well-off subsidizing their affluent and financially sophisticated counter parts. In this Essay, I argue that consumer protection, rather than antitrust, is best suited to tame two-sided markets. Consumer protection authority allows for intervention on the grounds that platform users create unavoidable externalities for all consumers. The Consumer Financial Protection Bureau(CFPB) hasbroad power to curtail "unfair, abusive, and deceptive practices." This authority can be used to restrict practices that decrease consumer welfare, like the antisteering rules at issue in Ohio v American Express
Agency Lawyers’ Answers to the Major Questions Doctrine
No full textThis Note addresses two questions: how does the major questions doctrine affect the way agency lawyers advise policymaking clients, and how does that advice affect agency statutory interpretation and regulation? I first describe the doctrine and discuss normative theories for the role agency lawyers should play in statutory interpretation. Second, I consider the effects the doctrine had during the rulemaking, litigation, and rescission of the Clean Power Plan (CPP), the first ever federal regulation of power plants’ greenhouse-gas emissions. Finally, I identify four major concerns with the doctrine’s ex ante effects on agency statutory interpretation and regulatory processes. These critiques apply broadly, beyond the CPP