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Animus and Its Alternatives: Constitutional Principle and Judicial Prudence
Get PDFIn a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of constitutional principle. Even so, I argue that the doctrine is highly problematic as a matter of judicial prudence, in part due to workability concerns but especially from the standpoint of what I call judicial statesmanship. As I explain, there are difficult questions surrounding the precise meaning of animus, the issue of mixed motives, and the relationship between animus and traditional religious beliefs. More important, judicial declarations of animus exacerbate the political-cultural divisions and animosities that infect contemporary American politics, damaging the democratic system that the Constitution is designed to protect. Accordingly, I contend that animus should be a doctrine of last resort, to be invoked only when there is no viable and preferable doctrinal alternative
The Compliance Process
Get PDFEven as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of compliance throughout the organizational structure. In short, creating an effective compliance program is an inherently difficult task.
And yet, it may be that organizations can improve compliance within their organizations by rethinking the way they approach the compliance challenge. This Article—drawing on insights from cognitive psychology, behavioral economics, and behavioral ethics—sets forth a new method of evaluating compliance failures that focuses on the compliance process, which has the distinct, albeit interrelated, stages of prevention, detection, investigation, and remediation. The Article argues that utilizing a process frame will assist industry leaders, regulators, and policymakers in conducting more effective root-cause analyses of compliance failures, which will lead to the creation, implementation, and better evaluation of compliance programs. Delineating clear boundaries for the stages within the compliance process is difficult, but getting these distinctions right is essential when confronted with significant or complex compliance failures, particularly when an organization lacks a robust commitment to compliance. Additionally, the process frame can be utilized across regulatory areas and corporate forms, which serves to cement compliance as its own proper field worthy of further inquiry and study. By focusing on “The Compliance Process,” organizations, policymakers, and scholars will improve the tools available for them to assist in the creation and implementation of effective compliance programs
Data Protection in an Increasingly Globalized World
Get PDFWith the rise of the internet in recent decades, it has become increasingly easy for various enterprises—including retailers, advertising agencies, and service providers—to acquire, use, and even share the personal details of their users. Such a trend is unlikely to decrease in the coming years; in fact, internet usage is only likely to increase as more and more people gain access to the internet. In the wakeof recent data breaches, including the now infamous breach of Equifax as well as the scandal involving Facebook and Cambridge Analytica, people are even more aware of the need for (and the risk of not having) adequate data protection laws. Luckily though, in the last few years there have been serious pushes across the globe to institute new data protection laws that ensure private data is not used for nefarious purposes or given away frivolously.
This Note intends to outline the current data protection regimes in three large jurisdictions across the globe (the European Union, China, and the United States), to offer insight into the strengths and weaknesses of each regime, and to predict the path that data protection laws in the United States should take in upcoming years. As will be seen, both the European Union and China, with the institution of their newest data protection laws, use omnibus regimes, in contrast with the United States’ current sector specific regime. The United States should move from its current regime, in which there are only national laws for specific industries, to a more omnibus regime, taking elements from both the European and the Chinese data protection regimes, which will help provide a minimum floor of protection applicable to all citizens whose personal data is being processed rather than allowing for varying levels of protection between states and industries
Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue
Get PDFThe U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing so, it draws on the scholarly literatures on dialogic judicial review and the role of social meaning in constitutional law. It illuminates how the Supreme Court interprets democratic preferences and constructs social meaning in order to apply fundamental constitutional norms to emerging legal claims. Contrary to the speculations of some commentators, “dignity” in these cases did not operate as some new form of constitutional right. Rather, the identification and protection of dignitary interests served as the unifying principle for a process, unfolding in three cases over thirteen years, through which constitutional law was brought into alignment with evolving public attitudes and policy preferences. The dignity decisions should be understood as majoritarian, not as acts of judicial will. They were broadly accepted because the Court’s insights about the status of gays and lesbians in American society were consistent with dramatic and long-term changes in cultural and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came to be understood as impositions of stigma and humiliation—the kind of expressive harms that the U.S. Constitution forbids
Evidence Struggles: Legality, Legitimacy, and Social Mobilizations in the Catalan Political Conflict
Get PDFDifferent kinds of evidence are put forward to make an argument and justify political action by agents situated in diverse social, cultural, and power positions. The Catalan political conflict is a case in point. The central Spanish government\u27s arguments are mostly of a juridical nature and rest on the anti-constitutionality of the Catalan government and other civil society organizations\u27 actions. Instead, most arguments of Catalan supporters of independence are based on historical interpretations of grievances referring to national institutions and identity. Supporters of independence, under the politically inspired actions of major civil society associations, have mobilized hundreds of thousands of Catalans in massive demonstrations and have used media in a very efficient manner. The judicial responses to the secessionist process have used legality (police, prison) to allow repression, while the repeated anti-constitutional actions of the Catalan government have been justified as legitimated by popular support and by a historical accumulation of grievances. At the same time, repeated elections show that Catalan citizens are divided and have very different positions regarding their support for independence. This differentiation can be mapped according to social and economic criteria and almost literally projected in spatial coordinates. This other group of Catalans tried to mobilize to publicly show their disagreement over the secessionist project. Yet their arguments appear as reactive rather than based on any alternative evidence. Hence, they are co-opted by the central Spanish various governments\u27 juridical position, which supports a unified Spanish national identity couched in the Constitution of 1978. This paper argues that an important aspect of the political confrontation is being played as an evidence struggle where the various social actors produce different kinds of evidence to justify their actions in the political arena and mobilize support
Letting Go of Stability: Resilience and Environmental Law
Get PDFHistoric variation in the environment once served as a reliable guide to future behavior. Sustainability promised continuity of ecological and social structures and functions within the known envelope of historic variation. Now climate change and other environmental stressors are tipping systems into behaviors that no longer remain within the confines of precedent. Social-ecological systems are neither persistent nor predicable. Letting go of stability releases us from untenable expectations of steady maintenance of some natural order. Resistance to change will continue to play a role as environmental law suppresses disruptions and buys time. But resistance will eventually yield the stage to recovery and transformation. Recovery seeks to restore some social-ecological services after a disturbance. Transformation reorganizes systems entirely. Resilience provides a better framework than sustainability for considering the relative merits of these management approaches. Managing resilience as an environmental law objective will promise less but deliver more of what it promises. Environmental law is for people —provisioning their wants and resolving their disputes. Viewing it as a nested set of social-ecological systems gets us away from dualist notions of nature versus society that seldom help the environmentalist cause. Precaution will remain a defining attribute of environmental law, but it cannot promise certainty. Static law will yield to experimentation and moral imperatives for change. Resilient environmental law will need to be attentive to social, as well as ecological, transformations. It will clarify for citizens how they benefit from environmental law. This Article synthesizes and assesses the legal scholarship on resilience. It suggests productive paths for law reform and more equitable tools for weighing consequences of natural resource management. Environmental law research in the coming years should explore specific, place-based approaches to managing resilience and safe-fail designs for adaptive governance