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When Quacking like a Duck is Really a Swan Song in Disguise
No full textUnited States v. Windsor may, in the views of some, walk and talk like a federalist duck, but upon closer examination, the decision is not a federalist decision at all, but is, rather, a swan song for federalist-based marriage discrimination.
Leading up to Windsor, federalist-based arguments for marriage equality were advocated by the late twentieth-century minimalist movement, which viewed the judiciary as an ineffective agent of social change, and urged the narrowest of constitutional claims, pessimistic about the likelihood of broad individual rights claims to same-sex marriage rights. After Windsor’s release, some have interpreted it as being a federalist decision, due in part to the opinion’s inclusion of a state powers discussion.
This Article describes both how backlash-fearing minimalists were wrong, and how those who read Windsor as a federalist decision are wrong. The Article details an evolution in LGBT rights advocacy from backlash-fearing minimalism to a renewed faith in the courts serving an important role in the protection of constitutional rights. Finally, the Article offers alternative readings of Windsor’s state powers discussion in light of the passage’s surrounding language, including the Court’s pointed invocation of Loving v. Virginia as an applicable federalism-limiting precedent. Whether the state powers discussion in Windsor is read cynically as strategic rhetorical maneuvering or more generously, the decision does not in any sense leave marriage equality up to the states to decide, but rather builds the latest layer of a growing foundation for the ultimate affirmation of same-sex marriage rights by the Supreme Court
It\u27s Complicated: Age, Gender, and Lifetime Discrimination against Working Women - the United States and the U.K. as Examples
Get PDFThis article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination
This Isn\u27t Your Founding Fathers\u27 Fourth Amendment: Analyzing the Constitutionality of Warrantless Metadata Collection under the Foreign Intelligence Surveillance Act
Get PDFBoilerplate and Consent
Get PDFIn Margaret Jane Radin\u27s book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask how it affects the well being and satisfaction of consumers who buy products co-packed with boilerplate.”
According to Ben-Shahar, boilerplate apologists believe that boilerplate is welfare-enhancing because it reduces transaction costs and, presumably, prices. Therefore, he argues, boilerplate is what consumers want anyway – a generalization that Radin disputes. More importantly, it ignores the larger questions raised by Radin’s book regarding the limits of consent: Even assuming that consumers want boilerplate, how much does that matter? Or, to put it differently, Are there limits to consent? Are there some things to which we, as a civilized society, should not permit consumers to consent?
This Essay does not attempt to answer those questions. Rather, it posits that they are unanswerable without a better, more nuanced definition of consent – one that takes into account contracting realities such as contracting environment, contract presentment, the nature of rights affected, and the burdens created by boilerplate
Completing the Picture of Uncertain Patent Scope
Get PDFThis Commentary addresses the intertwined relationship of claim construction, indefiniteness, and uncertain patent scope. Claim construction is a necessary threshold step and, if effective, can resolve uncertainties in claim scope, reducing the need to invalidate claims as indefinite, as discussed in Part II. Part III demonstrates how the Federal Circuit’s failed claim construction rules accentuate, rather than resolve, ambiguities in claim scope. Part IV explains how the ineffectiveness of claim construction increases the need for an effective indefiniteness doctrine, but, perversely, both decreased the effectiveness of the Federal Circuit’s pre-Nautilus standard and renders any stricter standard too draconian. Part IV proposes that the best way to address uncertain claim scope is to make claim construction more effective, while, surprisingly, largely retaining the Federal Circuit’s pre-Nautilus indefiniteness standard