This article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Rules are binding directives that leave little room for considering the specific facts of any given situation. Critics argue that they tend to be over- or underinclusive, but the value of rules is that by taking power away from the decisionmaker, they limit judicial discretion. Further, some argue that rules promote democracy because they properly leave the power to make decisions based on politics or value judgments to the legislature. On the flip side, proponents of standards argue that standards produce judgments that are less arbitrary and more substantively fair because they allow decisionmakers to consider all of the relevant facts and circumstances of the case. Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where the Supreme Court can review only a small number of cases, and they ensure predictability. How does this philosophy of limited judicial discretion manifest in the Fourth Amendment context? Because the Fourth Amendment specifically prohibits “unreasonable” searches—which arguably dictates a standard—Justice Scalia often sought to construct rules that could curb a limitless interpretation of “unreasonable.” Further, the Fourth Amendment context is unique because of the strong interest for police to have intelligible rules dictating the scope of any potential search. Part One of this Article discusses Scalia’s Fourth Amendment cases in the criminal context. It first discusses his methodology when approaching Fourth Amendment cases, and then outlines the cases where he advocated for bright-line rules that would limit judicial discretion. Part Two demonstrates his departure from the rules approach in civil special needs cases and cases involving remedies for Fourth Amendment violations.
For decades, courts read employment anti-discrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims — purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex anti-discrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades’ old precedents all suffer from the same analytical error: a failure to adhere to the principle that anti-discrimination law does not protect groups; it protects individuals. Because courts in the 1970s and 1980s focused on groups rather than individuals, judges were able to rely on legislative dead hand as performative analysis to keep LGBTQ people out of the law’s workplace protections and reinforce gender variants’ second-class status. This Article traces the anti-individualist origins of sex discrimination doctrine that has improperly kept LGBTQ workers outside of anti-discrimination protections and argues that the protective promise of anti-discrimination law is realized most fully when courts take individuals seriously.
Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the client, who is rarely the child, skews that focus. This article discusses ethical issues relevant to adoption attorneys, centering on the Model Rules of Professional Conduct most applicable to adoption practice, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s role as counselor are particularly germane. Since legal ethics can be both descriptive and normative, this article addresses both what the ethical requirements of professional responsibility are, and what they should be in adoption practice. This article sketches the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid, and to suggest some solutions from behavioral ethics to eradicate blind spots.
In recent years, claims brought by transgender students requesting accommodations from a public school have been framed under Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding. Given the changing interpretation of Title IX from the Obama to Trump administrations, both statutory and constitutional arguments supporting the right of public school students to express their gender in any manner contrary to traditional gendered norms have renewed vitality. In the decades since Stonewall, students facing school discipline for nonconforming gender presentation that violated school dress codes have attempted to challenge the dress codes as violating their First Amendment free expression rights. Tracing these arguments is not only helpful as a historical exercise, but also to present alternative arguments under an unsympathetic presidential administration and Supreme Court. In today's world in which the Trump administration targets transgender students, employees, and service members, one strategy is to embrace gender nonconformity for cisgender, transgender, and nonbinary students all at once, in the hopes that thinking about the expression rights of students will be a more fruitful approach than just relying on Title IX.
In Washington, D.C., the “Green New Deal” may be nothing more than a symbolic, Twitter-friendly legislative campaign with no real hope of adoption. But in New York, it is the new legal reality. The efforts of sub-national governments - like New York’s - to tackle widespread environmental harms, in particular climate change, have drawn increased media and scholarly attention since the United States declared its intention to withdraw from the Paris Agreement. In truth, the trend towards so-called “environmental federalism” predates the election of President Donald J. Trump. We are ushering in the next generation of environmental laws, and those laws will largely be authored by state and local officials. Where do these lawmakers look for guidance on bill language to properly address perhaps the most complex environmental challenge of our time? This work aims to draw attention to the imbalance in model lawmaking caused by the forces aligned against climate action. It then examines the growing resources facilitating proactive climate change law at the state and local levels. In doing so, the work also provides a taxonomy of such law-promoting mechanisms. Finally, it asks how well this model law ecosystem fits with the principles of federalism in the context of the evolving environmental legal landscape, ultimately concluding that more balance would counteract the distortion of democracy caused by the current situation.
Simplification of tax law is complicated. Yet, political rhetoric surrounding tax simplification often focuses on simplistic, superficial indicators of complexity in tax law such as word counts, page counts, number of regulations, and similar quantitative metrics. This preoccupation with the volume of enacted law often results in law that is more complex in a real sense. Achieving genuine simplification – a reduction in costs faced by taxpayers at various stages in the tax planning, tax compliance, and tax enforcement process – often requires enacting more law not less. In addition, conceptualizing simplicity in simplistic terms can leave the public vulnerable to policies advanced under the guise of simplification that have real aims that are less innocuous. A perennial example involves lawmakers proposing a reduction in the number of tax brackets under the heading of simplifying tax law. In reality, this change does very little, if anything, to simplify law in a meaningful sense, and its truer aim is to reduce progressivity in the tax code. Although the tax legislation ultimately enacted in December 2017 did not change the number of brackets applicable to individual taxpayers, political discourse preceding its enactment once again touted a reduction in the number of tax brackets as a simplifying measure.
Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by FDA or proven safe and effective to FDA's standards. (Sometimes this happens because FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the U.S. "gold standard" for "new drug" approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. To them, it seems like nothing more than a sudden and significant price increase in a drug that was already widely available. This reverse sequence happens regularly. Doctors all over the country prescribe medicines for a variety of ailments, not realizing the medicines are supposed to be approved by FDA -- but haven't been. Every time a company finally does the research that FDA requires and enjoys the reward of exclusivity in the marketplace, the public cries foul. Today doctors administer fecal microbiota therapy, using an unapproved stool preparation that has been shipped by a company in Massachusetts. But companies are studying new drugs based on the principle. A recent New York Times article described the looming controversy, quoting doctors and patients who seem to question whether the new drug approval process will be worth its cost. These scenarios force us to confront basic questions about the cost and the benefit of the "new drug" framework. This Article examines the new drug authorities with fresh eyes, with the added benefit of these unusual scenarios where in a sense the gate keeping mechanism has failed. Its principal insights are that, in addition to ensuring the production of high quality evidence about treatments in the marketplace, the new drug authorities (1) ensure the disclosure -- and provide a mechanism for close regulation of the disclosure -- of that information, and (2) give federal regulators a leash on new drugs, and the companies who market them, through the life cycle of those drugs. It explores the costs of error and delay associated with new drug approval and alternatives that some scholars and policymakers have proposed, ultimately arguing that -- though aspects may need tweaking -- the new drug approval paradigm is worthwhile. But these access-before-evidence scenarios bring home the point that the new drug approval standard does not, itself, ensure high quality innovation is performed. Something else must provide the encouragement. It concludes that those who object to temporary exclusivity for new medicines that complete the approval process (and the high prices they make possible for a while) must ask themselves whether they value the new drug framework (including good evidence) as much as they thought.
In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again - penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices has said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat-vacuous statements about the issue as well as the pointed and often homophobic critiques of the Court’s more conservative Justices. This liberal silence has been costly. Court developments around gay rights have certainly been one of many factors that have contributed to the drastic change in this country with respect to accepting gay people and treating them more equally. Concurring opinions could have been a part of this judicial influence, both in society and in lower court doctrine, but the liberal Justices have opted to remain silent. By doing so, they have lost an opportunity to use separate opinions to influence the trajectory of the law on gay rights, counter the stereotypes and bigotry of the dissenting opinions, clarify Justice Kennedy’s vague analysis, and possibly solidify the societal and legal gains that might be threatened with Justice Kennedy having left the Court.
Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take the academic discourse to the next level. It highlights three dominant research methods that have been used in this intersectional area: comparative methods, quantitative assessments and contextual analyses. The second half of this article identifies the contributions a robust discourse on intellectual property and human rights can make to the future development of the intellectual property regime, the human rights regime and the interface between these two regimes. Responding to critics and skeptics in the intellectual property field, the article concludes by explaining why human rights discussions in the intellectual property area will provide important benefits to the future development of the intellectual property regime, especially in relation to developing countries.
The executive power of the United States is vested in the President of the United States.1 That power includes prosecutorial discretion—the power to prosecute or decline to prosecute.2 Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons.3 Those who argue in favor of the possibility of obstruction of justice suggest that a President can so misuse a power that has been given to the office that the exercise of the power is an act of malfeasance, criminality, or both.4 Those who argue against the possibility of obstruction tend to rely on the President’s executive
For decades, Plessy v. Ferguson has been identified as one of the worst decisions ever handed down by the Supreme Court. Yet despite universal condemnation, America still has not rid itself of the lingering effects. Institutionalized racism. Time and time again, whether through Jim Crow styled laws or other government sanctioned acts, America clings to the Plessy model of othering those who are different. This article begins by positing that America is at a crossroad, marked by the trifecta of closely-timed events in the summer of 2017: Charlottesville, the pardoning of Sherriff Joe Arpaio, and the phasing out of DACA (Deferred Action for Childhood Arrivals). Part I of this article examines the legal and social rhetoric fueling Plessy with a focus on parallels to present day. This section includes this author’s humble rewrite of the introduction of the Plessy Supreme Court brief. Imagine how different this world would be had the Plessy Court been moved by rhetoric to hold that equal protection under the law meant just that. Part II chronicles the rise and fall of white nationalism, from Plessy to present day. This covers three main eras. The first Klan resurgence occurred in the 1920s, amidst fears that immigrants could take over America. The second uprising occurred as Plessy was struck down in Brown v. Board of Education. Jim Crow II. Confederate statutes and flags were raised on both public and private grounds to make clear to African-Americans that but for that unfortunate loss in the Civil War, they might still be slaves. The most recent Klan resurgence is well documented and triggered by what has been described as the “ultimate affront” to white nationalists: the election of Barak Obama, our first African-American president. Part III looks to the future. The antidote to institutionalized racism, is institutionalized anti-racism. Put differently, America needs to take concrete actions demonstrating our collective commitment to toppling the caste system that has kept many people of color impoverished and imprisoned. This section begins by examining how prejudice is fostered, including considering recent scholarship regarding neurorhetoric and the addictive nature of racism. No child is born a racist. The true lesson of Plessy is that the effects of institutionalized racism last for generations, and they even linger past lip-service reversal. Children don’t just watch what we say; children watch what we do. This section ends with a letter to a reader a hundred years from now trying to make sense of our laws and judicial decisions in the same manner that we scratch our heads and try to understand Plessy. Like Justice Harlan’s dissent, it’s a prophecy that today’s institutional racism will be seen by future generations as just as illogical and “pernicious” as Plessy. While it may have been impossible to change Plessy’s result when decided, it certainly is possible now. Judicial advocates are particularly poised to reframe and permanently eradicate the notion that othering is constitutionally acceptable and instead create a world where every child is appreciated for their differences, while at the same time afforded equal opportunity to the next.
Since the end of World War II, some of the Supreme Court’s most important constitutional law cases have focused on the appropriate relationship between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation of powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance. This article suggests that the Court is right to focus on factors other than text and original meaning when deciding cases implicating the allocation of powers among the three branches of the federal government. The executive branch has changed so dramatically since the founding that there is little wisdom from 1787 that can help judges resolve most separation of powers problems today.
On a daily basis, millions of Internet users re-blog, re-tweet, and re-post the content of others on social media. It is conduct that has led to a flourishing social Internet culture, but it is also conduct that implicates many clashing interests. For some, an Internet meme is a work of their own creativity whose co-option by the Internet at large is an act of infringement. For others, an Internet meme is a violation of their privacy resulting in severe emotional distress. For still others, an Internet meme is a vital communicative tool expressing particular ideas that cannot be articulated in any other way. This Article argues that the legal analyses applied to memes should strive to seek a balance between all of these interests, promoting the continuation of meme culture while also protecting those harmed by meme culture’s excesses. This Article uses the examples of a number of different memes to demonstrate that meme usage encompasses a spectrum of activity ranging from static to mutating in nature. These different uses have correspondingly different impacts on the legal rights of all three meme interest groups, none of which are adequately captured by traditional applications of existing doctrines of intellectual property or privacy laws. This Article posits that explicit acknowledgment of the wide spectrum of meme behavior should be used to help guide and appropriately adjust the application of legal doctrine to the meme in question, with attention paid to the underlying policy interests of a particular meme use. This can lead to more effective legal decisions regarding these memes that balance more precisely the interests of all those affected — both negatively and positively — by Internet meme culture.
In the forty years since Washington v. Davis, courts have struggled to articulate with any consistency an evidentiary standard for determining the existence of impermissible discriminatory motive. Though not required to do so, courts have often avoided considering any evidence of animus not contained within the official legislative or administrative record out of skepticism for the probative value of such “unofficial” statements. Lacking a coherent approach, courts have split on whether and to what extent statements made in the course of an election campaign should factor into discriminatory intent analysis. The 2016 presidential campaign has forced courts to squarely address this issue, as litigants challenging President Trump’s executive orders on immigration dredge up a trove of discriminatory and inflammatory statements made by candidate Trump. Curiously, the wealth of legal scholarship examining the contours of discriminatory intent analysis have largely ignored the relevance and propriety of campaign rhetoric as a permissible form of evidence in the analysis. This Article fills that gap. It proceeds by examining the five primary arguments against considering campaign statements as evidence of subjective animus, and illustrating why none of these arguments justify such a bright-line evidentiary bar. In short, traditional claims that campaign statements are of limited probative value address their evidentiary weight rather than their admissibility and fail to account for a court’s ability to discount the evidence as necessary. By adopting a more fact-specific, objective, and flexible approach to campaign statements, courts not only will more faithfully adhere to the spirit of Davis and its progeny, but will also be equipped to address the atypical case of a politician who speaks his discriminatory mind and then acts on it.
Security clearance decisions for those who work in the intelligence community are currently completely shrouded in secrecy and there is no meaningful review by the courts. The government can even revoke someone’s clearance and not tell the individual why it has been revoked on the basis that it is a matter of ‘national security.’ Without a clearance, the individual no longer has a job and they have no recourse to the courts. This is true even in the case of whistleblowers. This article argues there needs to be judicial review of security clearance decisions when there are constitutional claims. The intelligence community needs a diverse and effective workforce so there needs to be some transparency in the process to ensure that people with the necessary skills are getting cleared and remaining cleared.
