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\u3ci\u3eMeyer\u3c/i\u3e, \u3ci\u3ePierce\u3c/i\u3e, and the Formation of Persons
Get PDFThis essay, written for a conference marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), suggests that both the ongoing importance and the frustrating elusiveness of these decisions reflect the fact that questions of the formation of persons– as contrasted with matters of the expression or manifestation of personhood– are of crucial importance in the protection of liberty and yet are difficult to grasp and address within constitutional and liberal premises. In this predicament, the decisions dealt with the problem of formation of personhood by embracing what may be the only available solution within the liberal and American constitutional system– namely, a sort of anti-monopoly principle
\u3ci\u3eMeyer\u3c/i\u3e, \u3ci\u3ePierce\u3c/i\u3e, and Everything After
Get PDFFor a century, the U.S. Supreme Court has provided substantive protection, through the Due Process Clause of the Fourteenth Amendment, to a parent’s liberty interest in directing the education and upbringing of her children. The seminal cases for this protection—Meyer v. Nebraska and Pierce v. Society of Sisters—are widely considered part of the Court’s canon, and the Court has long referred to the liberty interest, or right, that they recognized as “fundamental.” But despite the long pedigree and significance of this right—and despite the Court’s common application of strict scrutiny to laws that restrict or draw classifications impacting rights it deems fundamental—the level of scrutiny applicable to a law that infringes the liberty interest recognized in Meyer and Pierce remains a mystery. Lower courts continue to struggle with this issue, and in many—perhaps most—instances, they apply the most government-deferential level of scrutiny available: rational basis review. This article aims to show why that approach cannot be reconciled with the jurisprudence of the Supreme Court itself.
Part I examines the Supreme Court’s opinions in Meyer and Pierce—as well as their oft-forgotten Progressive Era cousins, Bartels v. Iowa and Farrington v. Tokushige—and attempts to distill the essentials of the scrutiny that the Court applied to the laws at issue in those cases. Part II discusses four significant developments that occurred after Meyer, Bartels, Pierce, and Farrington and that, in some ways, significantly altered the Supreme Court’s approach to scrutinizing the constitutionality of legislation: (1) the adoption of a legal presumption of constitutionality in the late 1920s; (2) the bifurcation of fundamental (mostly enumerated) and nonfundamental (mostly unenumerated) rights in the 1930s; (3) the adoption of the modern rational basis test in the 1950s; and (4) the reemergence of meaningful protection for fundamental unenumerated rights in the late 1960s. Part III then surveys the significant parental rights cases that arose contemporaneously with or after these developments in order to assess the extent to which, if at all, these developments altered the approach that the Supreme Court had taken in Meyer, Bartels, Pierce, and Farrington. Part IV, in turn, presents a “best read” on the Supreme Court’s current approach to cases involving the right to direct the education and upbringing of one’s children and shows how the troubling trend among lower courts—application of mere rational basis review to laws abridging this right—is untenable. Finally, Part V provides some brief thoughts regarding possible alternative approaches that the Supreme Court might take in future cases in this area, including a more categorical “text, history, and tradition”-based approach or a return to the type of robust, searching scrutiny that the Court applied in Meyer and Pierce themselves
Determining the Physiological and Behavioral Tolerance to Hypoxia in Two Species of Rockfish (Sebastes spp.)
No full textIn the eastern North Pacific, the oxygen minimum zone naturally shoals seasonally and impacts demersal fish habitat along the continental margins and on offshore seamounts. This hypoxic layer has been shoaling in recent decades, likely affecting the habitat and distribution of commercially-important fish species such as rockfishes (genus Sebastes). Respirometry and shuttle box behavioral experiments were used to determine the hypoxia sensitivities of two rockfish species with contrasting movement patterns and habitat use: cowcod (Sebastes levis) and bocaccio (Sebastes paucispinis). Although both species inhabit similar deep-water, rocky-reef habitat, they have different lifestyles, in which cowcod are mostly benthic, being closely tied to their high-relief rocky habitat, while bocaccio are more pelagic and display more vertical movements above the reef. These species thus serve as excellent models for examining the potential range in hypoxia sensitivity among rockfishes, which comprise the most dominant demersal fish assemblage along the west coast of North America. In this study, the resting metabolic rate (RMR), critical oxygen threshold (Pcrit), and the loss of equilibrium (LOE) were measured for each species at two seasonally relevant temperatures (9 and 12°C). A shuttle box system was used to determine the dissolved oxygen level (% air saturation) that elicited a behavioral avoidance response. Results show that cowcod and bocaccio are both resilient to hypoxic environments, though cowcod generally demonstrated greater tolerance to hypoxia and changes in temperature compared to bocaccio. In particular, cowcod LOEs (0.45% a.s. at 9°C and 2.27% a.s. at 12°C) rank especially low among fishes and likely represent a sit-and-wait approach to episodic exposure to hypoxia, whereas more mobile bocaccio are more likely to behaviorally respond to seek more favorable environmental conditions. Our findings indicate that dissolved oxygen levels typical of depths where bocaccio are commonly found are nearing their critical metabolic limits. As a result, the shoaling of the oxygen minimum zone is likely to push bocaccio into shallower habitats
Closing the Loop: Dell Technologies and the Future of E-Waste Management
Get PDFThe exponential growth of electronic waste—exceeding 50 million metric tons annually—poses a formidable challenge at the intersection of environmental sustainability, global equity, and corporate responsibility. This study critically examines Dell Technologies’ approach to circular economy implementation, with a focus on product modularity, ethical supply chain management, and reverse logistics infrastructure. Anchored in a comparative framework alongside Apple, HP, and Lenovo, the analysis evaluates the scalability, transparency, and material impact of Dell’s initiatives, including the Concept Luna prototype and the Dell Reconnect program. Findings underscore the structural shortcomings of voluntary corporate action in the absence of robust global regulation, consistent product traceability, and enforceable extended producer responsibility. The paper advances a set of recommendations for sector-wide reform: the institutionalization of modular design, investment in repair and recycling capacity in the Global South, and the establishment of unified international standards. Without systemic transformation, the digital economy risks deepening global disparities while accelerating ecological degradation
Fusionism, not Libertarianism, Burned Down the House
Get PDFIn Burning Down the House, Andrew Koppelman has two goals: one philosophical and one sociological. The philosophical goal is to separate the wheat from the chaff in libertarian thought. Koppelman embraces the merits of F. A. Hayek’s arguments for markets. But he stridently rejects the radical libertarianism of Murray Rothbard, Robert Nozick, and Ayn Rand. The radicals are out, and the moderates are in. Hayek must increase, and Rothbard must decrease.
The sociological thesis is that radical libertarian ideology significantly influences the modern GOP and American conservatism. Koppelman sees the pathologies of the contemporary right as drawing from the poisoned well of Randian and Rothbardian ideology.
I am skeptical of both theses. Against the philosophical thesis, there are coherent and attractive philosophical positions between Hayek and Rothbard. Against the sociological thesis, at least one of these mid-way positions better explains the strengths and weaknesses of traditional American conservatism
Response to Six Interlocuters on the Topic of Neuroscience and Responsibility
Get PDFI am very pleased to be afforded the opportunity to respond to the edited and revised versions of the six papers that were discussed at the Rutgers Symposium in honor of my recent book. Each of these six papers raise excellent points that can serve as the springboard for deeper exploration of some of the salient issues raised in my book, and it is my aim in this response to take advantage of that opportunity. I am quite appreciative for the spur to intellectual progress that these papers and this symposium represents. By-and-large scholarship is a solitary enterprise but occasions such as the present also add a very welcome social dimension to this otherwise solo activity, and for that too I am grateful. My sincere thanks go to each of the six symposiasts for the time, care, and insight that they brought to their comments on my book.
One always has a choice about organizing responses such as the present one, either by topical subject matter or by author. Because each of my commentators raise significantly different points, I have chosen the latter mode of organization in what follows. I also make no attempt here to order the papers in any topical way; rather, I discuss each of the six papers in the order in which I received their final versions from the authors
The Fundamental Right to Polygynous Marriage
Get PDFThis Article is about why the argument in favor of a constitutional right to polygynous marriage, predicated on the importance of personal autonomy, is considerably stronger than the sex equality arguments against it. For the most part, legal scholars have arrived late on the scene, not treating the topic with the kind of care that it deserves. Instead of relying upon equal protection analysis, I shall engage in a fundamental rights critique of opposition to polygynous marriage. In doing so, I will discuss two considerations that remain central to such analysis: the value of autonomy (understood as personal choice in important life decisions) and the strength of the state’s interest in protecting adult women from sex inegalitarian marriages. As I shall argue, the fundamental right to marriage extends to polygynous marital arrangements. That is the case because it is imperative to let adult women make their own decisions about how they want to live, including deciding whom, if anyone, to marry. As it turns out, the state’s interest in fostering sex equality in marriage is weak as well; such marriage itself is unlikely to cause sex inequality. In fact, the lack of full legal recognition can make a bad situation worse, whereas legal reform could mitigate the sex inequality of polygynous marriage, rendering it tolerable.
This Article is divided into the following sections. First, I summarize the scholarly debate over polygyny and elaborate on why liberals continue to express ambivalence towards the phenomenon by drawing upon John Stuart Mill’s discussion of Mormon polygyny in On Liberty. Then, I articulate the dilemma that liberals face when they are asked to countenance a practice that they find morally abhorrent and explain why some of them reject full legal recognition of polygyny. I spell out the possible slippery slope between legal recognition of same-sex and polygynous marriage and show how marriage cases in the twentieth century, including Obergefell, have changed the debate about whether numerical restrictions are constitutional. Second, I describe how the anti-polygynist position is unacceptably paternalistic, failing to respect the autonomy of competent adult women to make their own most personal choices about how to live. Third, I review the standard anti-polygyny position, scrutinizing the claim that polygyny is too unequal for women to warrant the equal legal status of marriage. In doing so, I sketch the changing demographics of present-day polygyny in the United States and highlight its more egalitarian forms. Fourth, I respond to this anti-polygyny argument by showing that most polygyny is not as inegalitarian as its critics allege it to be, notwithstanding its structure, if it were regulated like a monogamous marriage. Polygyny could be modified to lessen the adverse impact of sex inequality on women, by legally eliminating its hub and spokes structure. Last, I address the concern that polygynous marriages would be too difficult to administer
Anticommandeering Climate Action: Defending the Necessity of Subfederal Planet-Saving Legislation
Get PDFHumanity is on the defensive against climate change, and state and local governments are the front line. Regrettably, Americans have waited too long for air cover in the form of federal climate regulations despite an established history of federal environmental action only emerging from the ashes of headline-grabbing catastrophes. Americans cannot wait on federal legislation to tackle the global and unprecedented problem of climate change. It will come far too late.
State and local governments’ historic police power includes protecting environmental health and public welfare, but decades of successful federal regulation have atrophied its use. Delayed by federal success, state and local entities have only recently mobilized against climate change. In response, opponents of climate legislation are invalidating beneficial bottom-up regulation through misplaced federal preemption challenges. This misguided tactic further discourages state action, leading to a recursive loop of legal atrophy.
Realistically, the opposite should be true. By directing state and local governments to act in an area of traditional police power, these applications of federal preemption become unconstitutional commandeering, violating fundamental principles of federalism.
A defensive combination of the anticommandeering doctrine with the constitutional doubt canon would reinforce both local and federal environmental laws. This Article demonstrates this defensive combination by evaluating the recent preemption challenge to a municipal natural gas ban in California Restaurant Association v. City of Berkeley. Additionally, this paper explores the important role that subfederal governments will continue to play in effective responses to this climate emergency
Beneath the Surface: Unearthing Legal, Cultural, and Environmental Challenges to Resource Extraction on Indigenous Land
Get PDFMuch of the world’s natural capital lies on or beneath lands occupied by Indigenous peoples. Since the advent of colonialism, Indigenous communities have tirelessly safeguarded their land from encroachment by extractive industries. The contemporary consequences of resource extraction on Indigenous lands include environmental degradation and cultural heritage destruction. Rather than providing a legal pathway to self-determination, the United States Supreme Court has eroded tribal sovereignty and undermined the trust relationship between tribes and the federal government. American Indians and Alaska Natives are prohibited from tapping into their resource wealth by an intricate bureaucratic framework that dictates how resources may—and may not—be developed on Indigenous land. The prevailing model of resource extraction places control of the extractive operation firmly in the hands of a private company, often with backing by the State. Thus, the real authority to enforce Indigenous rights in land and resource management lies in the private sector. International case studies from Canada, Australia, and Russia highlight the benefits derived from resource development agreements between Indigenous communities and private companies. As custodians of biodiversity, Indigenous peoples bring unique ecological knowledge to the discourse on resource extraction. Integrating Indigenous wisdom into extractive projects may mitigate the otherwise insurmountable challenges wrought by resource extraction
Generative AI and Disinformation: Analyzing China’s Strategy Amidst U.S. Investment and Export Controls
Get PDFThe rapid evolution of artificial intelligence (AI) technologies has ushered in a new era of technological, economic, and legal transformation. As economies expand and technology continues to evolve, AI has ignited a competition for technological supremacy, commonly known as the “AI Race.” China and the United States have taken center stage, amplifying their longstanding technological rivalry within the realm of AI. This analysis delves into China’s regulatory approach to generative AI, its strategic positioning in the ongoing AI race, and its influence operations, specifically the dissemination of disinformation. It also examines U.S. strategies for controlling AI technological advancement in China through investment and export restrictions on AI-related sectors. Considering the significant influence of both nations on the AI race, this paper proposes a collaborative framework to manage disinformation effectively