July 31, 2006

Cross-Commonwealth Couple and Canadian Copywrong

Two queer pieces of news from our northern neighbors:

1) The president of the high court family division in the United Kingdom, which recognizes civil partnerships for same-sex couples (but not hetero ones, which may explain why they feel the need for this silly law), refused to deem a Canadian marriage between two women to be a valid British marriage. Much of the language in his decision is similar to that which we have seen in the recent New York and Washington State decisions: marriage is necessary to stabilize heterosexual relations that can result in unplanned children; restricting marriage to opposite-sex couples is not based on "exclusivity, marginalisation, disapproval or discrimination against homosexuals"; tradition.

There were a couple of remarks that wouldn't apply in the U.S. cases.

a) "[T]o accord a same-sex relationship the title and status of marriage would be to fly in the face of the [European Convention on Human Rights] as well as to fail to recognise physical reality." I cannot discern how Sir Mark Potter came up with this. The only mention of marriage in the Convention is Article 12, "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." I suppose that the trans/ intersex folks might be annoyed by using "men and women" rather "people," and one could stretch that usage to say that Article 12 must limit the "right to marry and to found a family" to people from the set Men marrying people from the set Women.

Nonetheless, there is nothing in the plain text of the Convention that would cause according a same-sex relationship the title and status of marriage to "fly in the face" of it. Belgium and the Netherlands are signatories to the Convention, yet the European Court of Human Rights has not declared their recognition of same-sex marriage to be a violation of the Convention. Article 12 appears to be a nullity in the argument; the Court does not apply it to same-sex marriage either to force a nation to legitimate such marriages or to force a nation not to do so. As is often true of European law, discretion is the better part of valor; these agreements could not long bear the weight of disparity between social norms in the Netherlands versus those in Italy.

Sir Potter should stick to British law, which is far more clearly set against same-sex marriage than the muddle of European law is. An Article 12 claim is better dealt with by stating that because the European Court has not interpreted it to require legalizing same-sex marriage, no national court need interpret it that way -- sort of like a state court's attitude toward federal claims that SCOTUS hasn't validated.

b) From the Guardian article:

He said lasting single-sex relationships were "in no way inferior" and English law does not suggest they are, recognising them under the name of civil partnership.
"Parliament has not called partnerships between persons of the same sex marriage, not because they are considered inferior to the institution of marriage, but because, as a matter of objective fact and common understanding, as well as under the present definition of marriage in English law ... they are indeed different."
The majority of challenges in the U.S. seem to be brought in states that have no functional equivalent to marriage for same-sex relationships (which makes sense, as 43 states don't). Civil partnerships in the UK really are marriage in all but name, so calling this a test case is pretty fair, though it is one for which the plaintiffs will pay �25,000 court costs in addition to whatever they paid their own lawyers and experts. However, Sir Potter's pronouncement that "they are indeed different" raises the question of what it is about partnerships between persons of the same sex that is relevant to whether such partnerships should be called marriage.

The bizarre consensus that seems to be forming among courts on both sides of the Atlantic is that because two women or two women who get it on can't thereby produce a child, any children they do raise don't need the protections of marriage, whereas we dumb breeders need to be shackled and incentivized by being the only ones who can get married. I realize that single-parent child rearing is most prevalent among our most vulnerable -- low income, less educated, disfavored minority -- households, and that there's some cause-and-effect. A person who is the sole support of a family has much more trouble pursuing education, and having only one worker who also must be the domestic caretaker almost ensures that a family that began in poverty will stay there. But I find it irrational to believe that the widespread failure to form two-parent households is in any way ameliorated by refusing to put within the bounds of marriage those households that are headed by two people of the same gender.

2) Much less big news, but interesting as hopefully-not-internecine squabbling within this supposedly monolithic special interests* lobby: the Vancouver Pride Society holds itself out as licensing the term "Pride" from Fierte Canada Pride and thereby feels able to require those who wish to use the word in the Vancouver area to register with the Society. The first claimed rationale is dubious: "to protect the trademark against for-profit individuals or companies exploiting it in the queer market. If we don't do that, there's a long line of people who are quite eager to get their hands on that trademark and licence it for thousands and thousands of dollars back to us." If this is a sincere concern, why not ask the office of trademark to declare the word open to all users and non-trademarkable? The second stated reason, that Pride committees want to ensure that anyone who uses the word pays fees to support them, is much more plausible.

I'm with the trannies on this one.

* Per Dave Chappelle, read "special interests" to mean "gay."

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July 24, 2006

I See Naked People (But Wal-Mart Doesn't)

(I was at Amazon to order a copy of Anonymous Lawyer. You should do the same!)

From an Amazon plog:

Wal-Mart Cites Nude Supreme Court Justices in Stewart Case
I found the American Booksellers for Free Expression Web site (ABBFE) to be fascinating reading, especially their Banned Books Week Handbook, a handy guide to books that have been banned or challenged in the past year. The site also provides details about where these books were challenged and why (vulgar language, depictions of racism, and violent imagery are oft-cited reasons), with links to more information about the cases.
Here, for your reading pleasure, are just a few of the old and titles that have have had a run for their money in 2006:
How to Make Love Like a Porn Star: A Cautionary Tale by Jenna Jameson
Forever by Judy Blume
To Kill A Mockingbird by Harper Lee
The Teenage Guy's Survival Guide: The Real Deal on Girls, Growing Up, and Other Guy Stuff by Jeremy Daldry
All the Pretty Horses by Cormac McCarthy
Then there is my favorite: America (The Book) by Jon Stewart, was rejected by Wal-Mart and banned by two libraries in southern Missisippi "due to nude photographs of the nine U.S. Supreme Court Justices."
--Rebecca, Books Editor
Hopefully the Wal-Mart buyer realized that those weren't actually the justices' bodies. Of course, Amazon's existence nullifies Wal-Mart's effect; as long as he has a credit card, access to the internet and a mailing address, anyone who couldn't get the book from the latter just bought it through the former. The libraries' refusal to carry the book is more problematic, because people who couldn't afford the book themselves and rely on taxpayer-supported community services wouldn't be able to borrow it.

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July 23, 2006

Apple Juice at the New York Bar Exam

I don't know if the policy was changed in reaction to this Findlaw column, but now you can bring apple juice into the New York bar exam without being categorized as a "special" test-taker. Indeed, the 1991 exam situation is probably not predictive of how any disabled test-takers are treated 15 years later. Between federal mandate from the Americans with Disabilities Act, and a general societal change in perceptions of disabled people, Sherry Colb's story is unlikely to recur. I don't entirely agree with her opposition to flagging standardized test scores; if someone took the test under relevantly different conditions -- extra time, an individual room, etc. -- noting the specific difference on the test report informs the recipient without lumping all differently-abled people together. All "normal" test-takers are alike; each disabled test-taker is disabled in his own way.

Anyway, good luck to all bar examining De Novo readers, who probably are too busy cutting up flashcards and doing a last few hundred MBE questions to be reading this or any other blog, with the possible exception of Wings & Vodka.

A Personal Story: The Disabled at the New York Bar Exam

I had a very small taste of the depth of prejudice against the disabled when I was preparing to take the Summer 1991 New York State Bar Examination. About two weeks before the test, I learned that food and drink would not be allowed into the exam room. Since childhood, I have suffered from a relatively mild form of hypoglycemia, a tendency for one's blood sugar to drop if too many hours pass without the ingestion of carbohydrates. As a result, whenever I have taken examinations that last more than an hour, I have brought with me a small bottle or two of apple juice, to avoid developing a headache and becoming very drowsy and light-headed. My need to bring juice to exams had never posed a problem for me or for anyone else prior to the bar exam.

When I called the New York Bar to explain that I needed apple juice in the exam room, I was asked why I had not petitioned for an accommodation prior to the deadline; I explained that I had not known beforehand that I would need to petition at all. I was told I would then have to petition both for a waiver of the petition deadline and for an accommodation for my hypoglycemia. Luckily, my doctor was in town and agreed to write me a note immediately, and my husband, who had himself recently graduated from law school, composed a petition for a deadline extension for me � while I focused on last minute studying for the exam.

The New York Bar granted both petitions. When I arrived to take the test, I was assigned to sit in a special room reserved for people receiving accommodations. Some had syringes because they needed to self-inject insulin during the exam; others had high-intensity lamps because they were vision-impaired. I felt somewhat ridiculous sitting there with my apple juice. At some point, the proctors asked that "the special people" be seated � a label that bothered me.

The exam was scheduled to begin at 9 AM, but the proctors in the "special" room did not hand out the test papers until closer to 10. I worried briefly that we might not get the full time allotted to complete the test, but no one seemed to be keeping an eye on the clock. The next morning, on Day Two of the exam, it appeared we would again be starting late. I asked one of the proctors whether perhaps we could begin our exam at 9 AM on that day. With a puzzled expression on her face, she asked why. I replied that everyone else was taking the exam at 9 AM, and that I did not know of any reason for us to be delayed. She smiled and responded slowly: "If you think you can take the exam with the normal people, why don't you go ahead and try?"

I began to reply to this remarkable comment, but a woman sitting near me who was legally blind interrupted and took me aside. She observed that I must be newly disabled. I was embarrassed to tell her that I had actually been drinking apple juice for most of my life. She said it was not worth getting upset about the proctor's remarks and that she, the applicant, just felt lucky to be allowed to take the exam with her special lamp, since another state bar had refused to let her do so.

In someone's mind, the ability to see without the aid of a special bulb was apparently "essential" to practicing law. This is the same mindset that deems having arms a key qualification for a business school applicant, or the ability to walk from tee to fairway to green a key qualification for a professional golfer. Only someone who is "normally" sighted � and lives in a society designed around that "normal" ability � could possibly view "normal" sight as a sine qua non for being, not a fighter pilot, but simply a practicing lawyer.

Why Flagging Should Not Occur

Though I do not pretend to understand the obstacles faced by the disabled, this experience at the bar exam gave me a window on the daily discrimination and hostility they encounter. Someone had flagged our room of "special people" in such a way that the proctors felt free to treat us with disrespect. Such flagging only makes life more difficult and painful for those who must already contend with physical or mental impairments that others are lucky enough not to face. And in many contexts, it is entirely unnecessary.

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Today / 07.24.06

Today in History (1929) - The Kellogg-Briand Pact, renouncing war as an instrument of foreign policy, goes into effect. It was ultimately signed by 62 nations, including Germany, Italy and Japan. The U.S. Senate approved the treaty 85-1, with the reservation that the treaty must not infringe upon America's right of self defense and that the United States was not obliged to enforce the treaty by taking action against those who violated it. Thirty-six years later, American planes suffered their first anti-aircraft missile attack of the Vietnam War.

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July 22, 2006

ACS Is Hiring

In its continuing effort to become the Federalist Society for liberals, the American Constitution Society needs more staff. (The national Fed Soc office has plenty, and at some point I've been in touch with all three charged with shepherding the Student Division flock.) ACS's "help wanted" is below.

American Constitution Society for Law and Policy (ACS)
Washington, DC
*Associate Director for Student Chapters
Overview/Qualifications: ACS seeks an energetic and versatile Associate Director for Student Chapters to manage the programming and expansion of a national network of 148 student chapters in cities across America. The
ideal candidate will have excellent interpersonal skills, organizing experience and knowledge of current legal and public policy issues. Some travel for meetings and events is required. A law degree is strongly preferred, and campaign or other organizing experience is highly desirable.
Duties: The Associate Director for Student Chapters will: manage an existing network of ACS student chapters at law schools across America; facilitate the programming of student chapters, including national competitions; lead the effort to found ACS student chapters on new campuses; oversee the student chapter office budget; integrate student chapter activities and chapter members into ACS's various substantive initiatives; and develop and plan signature events to raise ACS's profile and broaden its impact in key legal markets around the country.
To Apply: Interested applicants should email a cover letter and resume to: jobsatACSLawd0torg. No phone calls please.
Salary: Commensurate with experience.
Deadline: ASAP

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Today / 07.22.06

Today in History (1946) - The militant Zionist group Irgun, under direction of later prime minister and Nobelist Menahem Begin, dressed as Arabs and exploded a bomb at the King David Hotel in Jerusalem, which had been the base for the British Secretariat, the military command and a branch of the Criminal Investigation Division. Despite an alleged warning to evacuate, 91 people were killed, mostly civilians. Former PM Binyamin Netanyahu was among those who celebrated the 60th anniversary of the attack this week, drawing condemnation from the British ambassador.

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July 21, 2006

Why Contractors Are Better Than Civil Servants

I knew of some factors that made contractors' employees easier to fire -- generally non-unionized, particularly in a right-to-work state like Virginia; lacking statutory protections given to civil service employees -- and therefore preferable despite the higher cost of contracting. However, I'd never thought about the First Amendment aspect. Private sector employees can be fired for publicly disagreeing with their employer, even on a matter of public policy. Law student bloggers shouldn't post about a case in opposition to their employer's stance. (Though I think writing in non-legal terms about a corporate client with whom you haven't worked and is OK; some firms have so many clients in a particular sector that you'd never be able to complain about the bad smell on a flight, or a fight with your cell phone provider, if you observed a blanket ban.)

Government employees usually cannot be fired simply for disagreeing as long as the disagreement doesn't affect their work performance; a policy that paralleled the private sector's would mean that you'd lose your right to free speech upon receiving a taxpayer-funded paycheck. Christine Axsmith's paycheck had "BAE Systems" rather than "Central Intelligence Agency" on it*, so she could be fired for her weblog, though it was posted on Intelink, the intelligence community's classified intranet, and therefore available only to people with top-secret security clearances.

CIA spokesman Paul Gimigliano declined to comment on Axsmith's case but said the policy on blogs is that "postings should relate directly to the official business of the author and readers of the site, and that managers should be informed of online projects that use government resources. CIA expects contractors to do the work they are paid to do."
According to Axsmith, her managers were aware of the site and even gave her the number of people who were reading each entry. (I'd have to get the paid version of Sitemeter for those statistics.) If Axsmith blogged during time in which she was getting paid to work -- especially if her compensation package included overtime pay -- she deserved to be reprimanded as soon as her supervisor became aware of the behavior, and to be fired if she repeated it. If she posted factual information that should not have been known even to people with access to Intelink, she posed a security threat and deserved to lose her clearance and be fired. The timing of her job loss, coming the same day she posted her negative opinion about U.S. compliance with the Geneva Convention, points strongly to the conclusion that BAE fired Axsmith at the CIA's direction because she publicizing views on Intelink that were contrary to the CIA's.

The CIA has been granted significant constitutional leeway in restricting its employees' and past employees' speech. It requires prepublication review of books to ensure that classified material does not become publicized, although the authors unsurprisingly complain that too much is classified, and one went to the extreme of wanting to publish a whole internal report.

* Actually, do CIA employees' paychecks have the Agency's name on them? I've been told that if you work for the CIA, even if it's not as as secret agent, you should minimize public knowledge of that fact. And there's all those massive office parks out in Northern Virginia that have random names on them but allegedly are government buildings.

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Survivor II: Who Will Be W&V?

This has got to be the most procrastinated competition ever. Except maybe for the first Survivor: Blogosphere.

The first challenge to those who wish to succeed the estimable Mr. Andvodka is to answer one or more of the following questions:

1) What are the justices giving their future clerks as "Good luck on the bar exam" gifts?
Anonymous Lawyer

2) Is it possible to make a good reality show that relates to law (other than the COPS format)? If so, describe.

3) Write a song parody. [I promise not to steal it for Columbia's Law Revue spring show. I'll send you a $1 licensing fee and put your name in the program if we use it.]

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Dodgy People Get the IRS They Deserve

The next time you hear someone lamenting the sheer size of the federal tax code, remember: "the IRS has drafted fantastically intricate and detailed regulations to thwart the fantastically intricate and detailed efforts of taxpayers ... avoiding the imposition of taxes." Windsor Foundation v. United States, 77-2 U.S. Tax Cas. (CCH) & 9709 (E.D. Va. 1977).

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Welcome To California, the Golden Abortion State

Ah yes, it's election year therefore we need some pandering to the abortion (read: single issue voters) crowds. So the Senate is considering making it a federal offense to take a minor across state lines for an abortion without parental consent. I'm going to put aside all the faults with parental notification laws in general.

More abstractly, I would LOVE to see this case argued in front of the Supreme Court on commerce clause grounds. It can either be the next Lopez or the next Raich. Either way, it's a win-win (or lose-lose) for liberals. Strike down the abortion restriction? Great. Uphold the law? Then just you wait and see all the social programs that go up if power shifts to the other party. Can you say Department of Random Ass Social Spending? Of course, protecting children from unwisely, and sinfully, obtaining an abortion is completely different from oh say protecting children from unwisely joining 18th Street.

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The Serious Tips

Via 0L group blog schooled, I see Barely Legal has a humorous (but actually kind of meaning it) list, 20 Tips to Avoid Being A Douchebag in Law School. I don't think my supplement conflicts with their advice -- in fact, my points agree with some of their current posts. But go read their tips first, because otherwise the following makes less sense. And also because they are funny and I am notsomuch.

I still haven't gotten a rolling suitcase after twoish years in law school, but every time my uncle (who did need major back surgery after carrying laptops on his back for two decades) sees me with my backpack, he yells at me about how I'll be crippled when I'm his age. Yeah, but at least I'll have avoided being a douchebag in law school, which is way more important.

I'd add a 21st tip for law school -- don't worry so much about whether people you've never talked to are perceiving you as a douchebag. Most of Barely Legal's tips can be summarized as "Don't tell strangers stuff that probably won't interest them (2, 4, 5, 6, 9, 12, 13, 15, 16, 17); don't bother them to help you unless it's an emergency (1, 7); and don't slow them down (18, 20)." Those are rules for life. A tip that doesn't fit under those headings -- like telling you when you can do your reading, or what kind of study plan or laptop bag you can have, or whether you should get to know a professor -- can be ignored. You're going into ridiculous debt; as long as you're not impeding people who are in equally ridiculous debt, get your money's worth. Someone who sees you having lunch with the professor you want to advise your Note, and goes around telling people on that basis that you must be a "douchebag," is an asshole who should find better things to do with his time.

There's a limit to how much law school needs to be a retread of high school -- particularly considering how many of the folks judging who's cool or not in law school were incredibly uncool in high school. This is not the place to get your nerd's revenge by picking on people even nerdier than yourself. Or to go on puke-inducing binges, now that you're legal to drink and can go to a bar, instead of wishing for an invitation to a party with somebody's dad's booze.

Which brings me to the 22nd tip, though it's for the summer before law school rather than law school itself: finish living out your high school and college fantasies now. Please don't come to law school and get into a life-and-death struggle over student government, or bore classmates with your "dude, I got so hammered last night" stories, or pick up the undergrads you couldn't get as an undergrad. A 26-year-old with a freshman girlfriend looks pathetic, particularly when he's trying to use his newfound legal knowledge to get her fake ID back from the bouncer.

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July 20, 2006

WalMart (& RILA) 1, Maryland 0

UPDATE: On January 17, 2007, WalMart won at the 4th Circuit.

The Retail Industry Leaders Association won its motion for summary judgment to invalidate Maryland's Fair Share Health Care Fund Act, which mandates that non-governmental employers of 10,000 or more people in the State spend 8% of the total wages paid to those employees on "health insurance costs." As predicted, the argument that the state Act was preempted by the federal ERISA convinced the US District Court in Baltimore. Next stop: Maryland's appeal to the 4th Circuit. As far as I know, the Bush Administration has not intervened with a brief that says whether the law does or doesn't conflict with ERISA. In the unlikely event this goes to the Supreme Court, Justice Scalia presumably would recuse himself because his son is representing RILA and he recused himself from Department of Labor cases in which his son's name was on the DOL's briefs.

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July 19, 2006

She Wanted a Wife


Having made the mistake of signing up with townhall.com in an unsuccessful attempt to comment on one of their blogs, I've started to get e-mails telling me about the daily radio lineup. On Talk Radio Today -- "Mike Gallagher: Lesbians file a medical malpractice lawsuit; Ibrahim Hooper on CAIR; and dogs in Florida eating out with their owners." As I didn't think even Colorado showed sufficient animus toward homosexuals as to prohibit them from exercising their right to civil action, and therefore saw no reason why this should be news, I googled "lesbians medical malpractice." The first hit was a May 2004 Boston Globe article about a woman in Massachusetts who filed for loss of consortium the day after she married her longtime partner, whose doctors failed to order a biopsy for a lump that turned out to be breast cancer.

Their suit claims a form of damages known as "loss of consortium," a routine provision in malpractice law. It allows spouses, parents, and children to assert that they have lost affection, companionship, and support as a result of an injury to their relative. [...] Their 6-year-old daughter, Hannah -- Kalish's biological daughter, whom Charron has adopted -- is also a plaintiff in the case. She already has legal standing to file a "loss of consortium" claim, White-Lief said, because she is Charron's legal daughter.
But that was an old story. The news arousing conservative talk radio's and many others' interest is a similar case arising under Connecticut's civil union law, with the main difference being that Connecticut's caselaw does not permit for a parent-child loss of consortium*. However, the tort "loss of consortium" is being framed quite differently for the current case than it was by the Globe for the older one.

The Fox News headline over an AP article is "Lesbians Sue, Say Cancer Treatments Damaged Sexual Relationship." (An outlet targeting gay readers headlined "Same sex couple files medical malpractice lawsuit" and cut the first paragraph of the AP piece so that it made no mention of their sex lives.) Another article begins with the sentence, "A lesbian couple filed a medical malpractice lawsuit Tuesday claiming botched cancer treatments damaged their love life," even though the subsequent direct quotes from the couple say nothing about their love life. Instead, they talk about how they had to move out of a home with stairs because the ill spouse couldn't manage them anymore, and had to hire cleaning help because she no longer could do the housework. Still another: "A lesbian couple is filing a medical malpractice lawsuit in Connecticut, claiming that an error in cancer treatments damaged not just one partner's health, but the couple's legally sanctioned sexual relationship."

Connecticut judges are less one-track minded than the press regarding the meaning of loss of consortium. "Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage. The �intangible� components of consortium are the �constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.�� Shegog v. Zabrecky, 36 Conn. App. 737, 751 (1995).

Recent stories about opposite-sex spouses who file loss of consortium claims don't emphasize the sexual element. Most simply state the tort without explanation, but even an article that provided more detail used the language of the complaint instead of putting its own spin: "Lynn Rennich, the wife of Vincent Rennich, is suing Aztar for Loss of Consortium. 'As a direct and proximate result of defendant's negligence and other alleged wrongs... Lynn Rennich has been and will be deprived of the services, society, companionship and consortium of her husband.'" Even an article about a woman who sued her doctor for having sex with her while she was under sedation does not describe "loss of consortium" as being about her love life.

Of course, framing "loss of consortium" in terms of sex makes it more interesting. Yet it may not be even wholly historically accurate as a matter of English common law. Wikipedia claims that fathers could use the tort to sue men who courted their daughters outside marriage, for the fathers' loss of the daughters' household services. In Australia, where only husbands could sue under it, the legislature has considered replacing "loss of consortium" with "loss of capacity to do housework."

This strikes me as a better conception of what harm the law should address. Sexual relations or lack thereof between spouses should not be a matter of much concern for others, but harms that have a more quantifiable economic cost -- such as needing to change housing, pay for professionals to do what the injured spouse once did (which, in jurisdictions that prohibit prostitution, cannot include sex), devote time to caring for the injured spouse -- should be recognized legally as damage done to the non-injured spouse that cannot be fully captured by compensating the injured spouse only for the harm done to her individually.

* Belliveau v. Stevenson, 2nd Cir. 1997; Mendillo v. Board of Educ., Conn. 1998.

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Inherently Youngstown

Marty Lederman has an informative open letter to Sen. Specter at Balkinization explaining that an inherent executive power does not mean indefeasible. Of course Marty's analysis is spot on, and I'm equally certain that the mouths eager to spout off any incredible defense of this executive will not pay any attention.

One thing that Marty glosses over is the conflict between Congress's power to regulate war and the President's power as Commander-in-Chief. Specifically I have the War Powers Act in mind. If my Poli Sci 101 memory serves me correctly, it was enacted over President Nixon's veto and every president since has claimed it is unconstitutional. Sadly, no one can ever have Article III standing to challenge the statute with the exception of the President seeking a declaratory judgment on the eve of an invastion (as if they don't want anything better to do) but I need not explain why that will never happen.

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July 16, 2006

Legal Theory at Typepad

This is mostly a change-your-links PSA -- Legal Theory's new home is at http://lsolum.typepad.com. I think this was a particularly smart move for Prof. Solum, considering the amount of information he hosts; not only the blog, but also his lexicon and calendar. The only recommendation I would make is that he use the "Continue reading" function on sixapart's software, especially on the posts that recommend SSRN articles and reprint the abstracts. The way he's doing it at the moment, with all the posts in full on the front page, has the the content in the middle stretching far past all the sidebar material and makes the reader (this reader, anyway) feel like she has to do a lot of scrolling down.

Also, to insert a student's perspective briefly in the debate among Stuart Buck (another man who should jump the blogspot), Solum and Orin Kerr regarding teaching, scholarship and the canon, as a general rule professors who are teaching in an area close to their scholarship will be better at the teaching, because their own enthusiasm for the subject comes through. I haven't taken an international law class, but I found a course in international arbitration somewhat frustrating due to the apparent lack of canon. My professor was fairly notable in the field and I did check out some of his articles, but it all seemed to lack a framework and guiding principle. Overreliance on the canon of course stifles scholarship -- how many articles have I seen for my journal that were very well written and interesting and immediately shot down for adding nothing new? -- but a total lack of canon can be bewildering even for beginners. With regard to Solum's desire to keep interdisciplinary scholarship vibrant and how that interacts with teaching, I would be interested in how Georgetown's Curriculum B works for both the professors and the students.

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July 14, 2006

Dale Carpenter on Hernandez v. Robles

Commenting on my post regarding the New York Court of Appeals decision, Tom T. points to Conspirator Dale Carpenter's remarks on the sex-discrimination aspect of prohibiting same-sex marriages.

First, Carpenter is not precisely correct about how the sex-discrimination argument has been received by the courts. He says, "Indeed, even courts favorable to gay-rights claims have either explicitly rejected the sex-discrimination argument (as did the Vermont and Massachusetts high courts in their marriage cases) or have ignored it (as did the Supreme Court in Lawrence)." In point of fact, Goodridge's majority opinion says, "For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny." If the statute does not survive rational basis, then it also wouldn't survive heightened scrutiny. Moreover, the Goodridge concurrence does depend on a sex-discrimination claim:

That the classification is sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants' gender. As a factual matter, an individual's choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law. [FN2] [FN2] In her separate opinion in Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part), Justice Johnson described the equal protection defect in Vermont's marriage statutes in a slightly different, but no less persuasive, fashion: "A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. Similarly, a man is denied the right to marry another man because his would-be partner is a man, not because one or both are gay. Thus, an individual's right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license."
Nor does Lawrence ignore the equal protection argument; Kennedy's majority opinion says, "Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." In other words, the Georgia statute challenged by Bowers could still stand if Lawrence had been decided on sex-discrimination grounds, because that law banned sodomy regardless of the participants' genders. O'Connor's concurrence begins by saying that she does not join the majority in overruling Bowers -- in which she had voted to uphold the Georgia statute -- but only in invalidating the discriminatory Texas law, albeit on the ground that it discriminates against homosexuals rather than its discrimination on the basis of sex.

I am doubtful about relying on classification as "heterosexual" or "homosexual" because sexual orientation categories are not that simple. The male-female binary, notwithstanding the existence of intersexed persons, is far clearer -- even transgendered persons deliberately identify with a particular gender, though a smaller minority of people genuinely eschew all gender classification. Many more people have had sexual experiences that defied their self-identification as gay or straight than have lived as a sex different from the one marked on their birth certificates. If the Texas law is wrong because it discriminates against homosexuals, does that mean it would be OK if Lawrence and Garner had been two hetero-identified men who had been experimenting in a single encounter and gotten caught that one time? The statute's discrimination was clearly based on the sex of the participants, not on their overall sexuality. Implicitly requiring people who want a same-sex marriage to declare themselves homosexual is poor policy, one that excludes people like Barry Winchell who consider themselves heterosexual but who are in love with someone legally of the same sex.

Carpenter has

never been persuaded by the sex-discrimination argument. At the formal level, the argument over-reads Loving, a single case from a different and special area of equal-protection jurisprudence (race). Classifications based on race are far more likely to be based simply on racism than classifications based on sex are likely to be based simply on sexism. We have separate bathrooms for men and women; separate men�s and women�s sports teams at public universities; men and women are treated differently by the military; different standards for presuming parentage depending on sex; different penalties and standards for statutory rape depending on sex, and so on. I doubt these sex classifications are unconstitutional, or that they would get anything more than rational-basis scrutiny. Even if we applied intermediate scrutiny to them, they�d probably pass that more forgiving and flexible test.

Further, I understand Loving to have concluded that antimiscegenation laws, however �equal� they were in form, to have one basic and overriding purpose that deeply offends the heart of the 14th Amendment: the maintenance of �White Supremacy.� While I agree that the limitation of marriage to opposite-sex couples both reflects and reinforces traditional gender roles, I think it is a crabbed view of traditional marriage to say that that is all it reflects or to say that maintaining a gender hierarchy is even its dominant cultural function nowadays. Many, many legal academics would strongly disagree with my view.

The separation of races was more obviously based in racism than the separation of the sexes in sexism, but just as many blacks would have been happier with a genuinely equal separation, women often are annoyed by sex-segregation that results in unequality: being unable to use the men's restroom when there's a long line for the ladies'; advancement in the military that's limited by access to combat roles; the assumption in statutory rape that a woman who molests your son is doing him a favor, while a man who molests your son or daughter is an abuser. Moreover, the law at issue in Loving did not punish only non-whites; both the white man and the black woman were sentenced to one year in prison for violating the ban. (I'd actually consider this to be a stronger point of distinction; if same-sex couples are allowed to cohabit and have sex without fear of prosecution, as Lawrence requires, their situation is not parallel to that of Richard Loving and Mildred Jeter.)

The Supreme Court narrowly upheld a sex-discriminatory statutory rape law in Michael M. v. Superior Court, with four justices voting to invalidate the statute. It is worth noting that this law was focused on sexual intercourse between men and women, and that the legislature's proferred rationale was to prevent unwed teen pregnancy. Whether a law prohibiting sexual activity that could not possibly result in pregnancy also was covered by the decision is unclear. The sex-discriminatory draft was approved 6-3 in Rostker v. Goldberg, again on the fairly narrow ground that because women were excluded from combat and the draft was mainly intended to fill combat roles, Congress justifiably didn't include women in Selective Service registration. Both cases were decided before a woman joined the Supreme Court.

I wonder what Carpenter believes to be the purpose, that does not reflect and reinforce traditional gender roles, of refusing marriage to same-sex couples. Advocates for such a refusal as a matter of public policy (I am distinguishing from those who advocate courts' refusing it as a matter of judicial restraint) generally either incline to the Maggie Gallagher belief that the preservation of Western civilization requires Western women to bear and raise children, or to "the common-sense premise that children will do best with a mother and father in the home" noted by Judge Robert Smith's majority opinion. It's quite difficult to make a sound argument that gender is relevant to marriage, without saying what it is about gender that's relevant. I have yet to see the claim that one needs a mother and father in the home so the former can be the breadwinner, lawnmower and sports coach, while the latter is the primary domestic caretaker and chooser of dolls. These task sets are equally important and demanding, but they undeniably have different gender associations, have different consequences for each party in divorce and result in different Social Security allocations.

Nor do I see any suggestion in Geduldig that "the Supreme Court has suggested that legislative classifications based on biological differences between men and women get only rational-basis scrutiny." If anything, Stewart's majority opinion scrupulously avoids mentioning biology and gender; it simply states that California can choose to limit the conditions its disability insurance program will cover if such limitations are related to the need to keep the self-supporting program affordable for low-income workers. Under this guideline, California could refuse to offer coverage for any disability that it perceived as likely to be too expensive, and workers who thought themselves likely to encounter that disability could look for other disability insurance that would cover it. (A sensible way to choose any form of insurance.)

In his next post on Hernandez, Carpenter notes that the New York Court failed to explain why not recognizing same-sex marriages would make opposite-sex marriages better, and concludes,

I am not saying that existing marriage laws can�t satisfy rational basis review. It would be surprising if they couldn�t satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy�s dissent in that case. His opinion is at once respectful of homosexuals� claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.
The concurring opinion in Hernandez, however, quotes Cordy's dissent and essentially adopts it. I find the claim that marriage in the Anglo-American legal tradition has been about procreation to be questionable, considering that courts have held valid marriages in which procreation was impossible as long as sex could occur. In such decisions, judges rebuffed the notion that the state recognized marriage solely or even primarily as purposed for procreation, and instead affirmed the purposes of companionship and sexual intimacy.

Lest this post come off as wholly disagreeable, I think Carpenter's first substantive post, on due process and fudamental rights, as well as his latest on what Hernandez portends for the future, are both spot-on. The reminder of the difficulty of getting same-sex marriage lawsuits into federal court is worth keeping in mind; even a challenge to the District of Columbia's law went to DC courts rather than federal ones.

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Viva La France

"Please note that in observance of Bastille day the Paris office will be closed on Friday July 14, 2006."

You have to love a country that still celebrates a jailbreak as a national holiday.

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July 11, 2006

Today / 07.13.06

Today in History (1863) - In New York City, opponents of Lincoln's draft begin five days of rioting that will be later regarded as the worst in United States history. Over 100 people died, including African Americans who were exempt from the draft (not being citizens under Plessy) and singled out for assault and murder.

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July 9, 2006

Maybe He Would Have Been a Terrible Lawyer

I missed this secret* when it was first posted. I don't know a law student who seems too stupid, irresponsible or unethical to be a lawyer, but presumably there's one out there. Or maybe the person who sent it is just an awful person and will be a chewed-up #2 pencil next life.


* Anything sent with the hope that it will be seen by millions and recognized by the person against whom it is directed no longer is a secret.

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July 8, 2006

This Brings a Tear to My Eye

Some law review needs to publish this guy. (via Belle Weather, who describes it as "government document fanfic")

The U.S. Copyright code, in verse.
These verses describe
All the copyright code
Of the U. S. of A.
Written down as an ode

Some detail is lost
As you might have expected
A brief note about some
Of what was rejected

For most of the things
That you aren't to do
There's always exceptions
In one case or two

Most often a teacher
Can break all these rules
In order to teach in
A setting like school

And also a scientist
Or engineer, too,
Has leeway to copy
An item or two

There are other exceptions:
Recording for blind ones
Or making performance
For blind or for veterans

But I'm not a lawyer
Don't rely just on me
Go find one to ask,
Better yet, two or three

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July 6, 2006

Hernandez v. Robles

As Chris Geidner and A. Rickey have noted, the New York Court of Appeals has ruled 4-2 that the state constitution does not require marriage to be open to same-sex couples. I called this one easily. New York's constitution lacks an ERA to provide equal rights regardless of sex, which was the essential basis of Goodridge (along with the other court rulings whose analyses I support), the howls about Lawrence notwithstanding. I consider the federal Constitution also to require sex neutrality, but going strictly by state claims, the NY couples didn't have as strong a brief as those in MA.

From the political side, the NY Court of Appeals is more conservative than its Massachusettes counterpart; New York also has a better history of protecting gays and lesbians and providing alternative legal structures to marriage, which makes the claims of discrimination against LGBT less striking.

The For the Children (TM) bit of Judge Robert Smith's opinion for the majority is as silly as those usually are, though. There's absolutely nothing to support how the Legislature rationally could think that a same-sex couple couldn't parent as well as an opposite-sex couple could, other than "common sense." Common sense also used to tell us that interracial couples faced so much trouble that in a custody battle, a child was better off in the household of a uniracial couple. Smith also ignores the number of same-sex households that are raising children and would be able to do so more easily if the heads could marry, thus providing greater stability and allowing arrangments such as a stay-at-home parent who still would have health insurance.

Smith should have left the For the Children part out and stuck to the universal-tradition-of-marriage bit, which suffices to provide the NY legislature with a rational basis to refuse to change their statutes to be gender-neutral and is inarguably true. I also agree that the state and federal constitutions have nothing that can be construed to recognize the existence of homosexuals and therefore there is no way to say they forbid discrimination based on identification as such.

Another part of Smith's opinion that I would have edited out is his claim that there is no gender discrimination in allowing only women to marry men and only men to marry women. Saying that women and men are being treated equally because each is equally restricted makes as much sense as leaving stand a law that allows only women to be OBGYNs and only men to be prostate specialists. People are being treated differently on the basis of sex; therefore there is sex discrimination.

If Smith wants to look at the tradition of marriage, the subjugation of women was rather clearly embedded in the marital custom of most peoples -- from the Hindu sects that burned widows or forbade their remarriage, to the Muslim rule that men can have four wives but women cannot have multiple husbands, to Jewish restrictions on women's ability to divorce, to the Christian belief that the husband bears the same relation to his wife that Christ does to the Church. Some people refuse to marry even with today's non-discriminatory regime because of this history. The recent trend of Western marriage is to become less gendered, not more so.

The concurrence is nearly as foolish in trying to defend the notion that contemporary marriage exists to give potential breeders a reason to stay together for their breeding. A man who gets a woman pregnant can be compelled to provide financial support, but he cannot be compelled to marry the woman nor care for the child. This actually is a shift from older laws that could mandate a man found responsible for a woman's pregnancy marry her, as is infertility's no longer being a ground for divorce, both in the U.S. and other nations. We already have separated procreation and marriage; even the tax code doesn't require that one be wed to receive the dependant credits, only that the financial relationship exist. The Legislature can claim that it is using marriage For the Children, and the Court of Appeals can say that rational basis scrutiny requires it to accept this claim, but trying to make it look good just makes Judge Graffeo look bad.

I didn't think much of Judge Kaye's sentimental dissent, either, except for footnote 6's citation of Scalia's Lawrence dissent, which points out that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same sex couples." This tempts one to make a Romer-based argument that refusing marriage to same-sex couples is impermissible animus, but New York is a difficult place to describe as having animus toward homosexuals. Again, the very progressiveness of the state as a whole, and localities like NYC in particular, stifles this line of thought.

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July 5, 2006

The Point of Dissent

Non-lawyer writer Conor Clarke declares that Justice Scalia has "lost his mojo," and blames it on the Court's tilting further right and becoming more agreeable. Clarke concludes,

But in majority opinions, the name of the game is coalition-building, and while the Scalia who speaks in the first person plural is able to find room for a flash or two of wit, there's just no comparison with his dissents. You can read Scalia's majority opinions in Davis v. Washington or United States v. Gonzalez-Lopez, without cracking a smile, and -- a line or two notwithstanding -- Scalia's majority opinion in Hudson v. Michigan (which allowed unconstitutionally acquired evidence to be used at trial) could have been written by pretty much anyone.

I don't doubt that all this newfound relevance pleases Scalia. And he may well try to have his cake and eat it too by writing lots of blistering concurrences that take shots at anyone and everyone within rifle range. But that would be pointless. You might even say it would be a bit like Demosthenes on the beach, rattling off into a big, open nothingness.

As noted in the last two verses of Smells Like Scalia, the justice's rants are amusing and give those who agree with him a lovely sense of superiority, but tend to distance him from the colleagues against whom he rails. But I don't understand why Scalia's concurrences should be deemed any more pointless than his dissents. The entertainment value of his tirades against his liberal brethren seems to me the same regardless of whether it's a concurrence like Marsh or a dissent like Lawrence, and one point on which I credit Scalia is that he rarely falls into the self-pity of many conservatives in liberal-dominated fields. His dissents focus on their self-evident correctness rather than whining about being a lonely voice of righteousness.

The only reason to consider a Scalia dissent to be less "pointless" than a concurrence would be if the dissent eventually became the foundation for a reversal of the holding it criticizes. Has the Supreme Court ever adopted a Scalia dissent as a new majority rationale? The Court so rarely explicitly reverses itself that such an opportunity doesn't come often, and even Brown v. Board struck out for its own explanation rather than relying on Harlan's Plessy dissent (which is what Scalia has said convinces him of the Brown holding). To be a legal realist for once: dissents are probably more pointless than concurrences, because the writer of a concurrence may be the crucial fifth vote one will need to extend or limit the precedent later on, whereas the dissenter is, to be blunt, the loser. In a future Court missing Souter, Ginsburg, Stevens, Breyer or Kennedy, the reach of the Commerce Clause might rely on the nuances of Scalia's Raich concurrence, but I see no reason for an appellate advocate to parse his nastily funny Grutter dissent. The Court that declares all forms of race-conscious admissions to be unconstitutional will not do so by gibing at diversity.

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Ding Dong the Chairman's Dead

According to this: "Lay died of a heart attack, his pastor in Houston said."

I smell a White House hit.

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July 4, 2006


In case I'm not the last to know...

David Lat (proprietor of Underneath Their Robes) is leaving Wonkette and launching a law blog to complement the financial Dealbreaker.com. Which sounds like a market already sort of covered by the WSJ's law blog, but Lat will recognize the importance of details like a judge's shoes.

In other news, Matthew Cooper of Valerie-Plame-fame and formerly of TIME magazine now will be writing for something called Portfolio.

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Today / 07.04.06

Happy Fourth of July to the U.S. on the 230th anniversary of its Declaration of Independence, and to the Philippines on the 60th anniversary of the U.S.'s recognizing its independence.

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July 3, 2006

Contestant Two: Nick

Better late than never, I'm Nick (check me out), your second So You Think You Can Blog? contestant. Since I'm a guest here, I've brought a present! Enjoy!

I'm sitting in San Antonio, Texas, and, as I type, I represent roughly 15% of the available space in my "room." I'll be heading up to Dallas to clerk at a court of appeals (not telling you which one though, wink) in a week. I was planning on dropping a Judge Dredd quote into a footnote while I'm there, but it seems that someone stole my idea. Freaking Attorney Generals and their awesome soundbites.

I hope to grow on you in the coming weeks, a la King of Cars, this sweet show on A&E - one of the 10 non-porn, non-Spanish channels available. Seriously, check that show out.

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