Does the U.S. Constitution Need an Equal Rights Amendment?

For over 3 decades, those engaged in the battle over the Equal Rights Amendment (ERA), along with many scholarly commentators, have argued that ratification of the amendment will lead U.S. courts (1) to elevate the standard of law they now use to adjudicate claims of sex discrimination, which, in turn, could lead them (2) to find in favor of parties claiming a denial of their rights. We investigate both possibilities via an examination of constitutional sex discrimination litigation in the 50 states—over a third of which have adopted ERAs. Employing methods especially developed for this investigation, we find no direct effect of the ERA on case outcomes. But we do identify an indirect effect: the presence of an ERA significantly increases the likelihood of a court applying a higher standard of law, which in turn significantly increases the likelihood of a decision favoring the equality claim

Constitutional Sex Discrimination

Nearly thirty years have elapsed since the U.S. Supreme Court decided Craig v. Boren, a landmark case in the Court’s constitutional sex discrimination jurisprudence. In Craig, the justices pronounced that they would apply neither the lowest level of scrutiny—rational basis—nor the highest level—strict scrutiny—to evaluate claims of sex discrimination. Rather, the Court invoked a standard “in between” the two, now known as intermediate or heightened scrutiny. Under this approach, the Court asks whether a law challenged on equal protection grounds is substantially related to the achievement of an important objective. Certainly the Craig Court’s intermediate approach has its supporters; indeed, influential legal scholars are now advocating that courts adopt it to evaluate laws discriminating against gays and lesbians. But to many analysts, Craig (and its progeny) was and remains highly problematic. Among their claims is that the standard it instantiated is so “loose” and “amorphous” that it produces unpredictable results. In this article, we seek to bring some empirical teeth to this debate by exploring patterns in sex discrimination litigation in the U.S. Supreme Court and in state courts of last resort. Our chief finding is that the critics of heightened scrutiny probably have the better case. At the very least, the Craig standard—while generating outcomes more favorable to parties alleging sex discrimination than did the traditional rational basis test—does, in fact, lead to far less predictable results than either rational basis or strict scrutiny. For reasons that may have little to do with the standard itself, courts are just as likely to uphold sex-based classifications as they are to eradicate them. This finding has important implications for the future of sex discrimination litigation, as well as for the advancement of legal rights for gays and lesbians. As to the former, our results underscore the importance of elevating the standard used to adjudicate sex discrimination claims—a goal, as we demonstrate, that could be achieved in several distinct ways. As to gays and lesbians, our findings identify the possible costs and benefits associated with a litigation strategy designed to place their claims of discrimination in the intermediate scrutiny basket.http://deepblue.lib.umich.edu/bitstream/2027.42/116231/1/tjlp04.pd

Quotas and qualifications: the impact of gender quota laws on the qualifications of legislators in the Italian parliament

This article addresses concerns that candidates nominated because of gender quota laws will be less qualified for office. While questions of candidate quality have long been relevant to legislative behavior, quota laws requiring a certain percentage of candidates for national office to be women have generated renewed interest. Gender quotas are often perceived to reduce the scope of political competition. By putting gender identity center stage, they preclude the possibility that elections will be based on ‘ideas’ or ‘merit’ alone. Other electoral rules that restrict candidate selection, such as the centralization of candidate selection common in closed list PR systems, have been found to reduce the quality of candidates. Rules that open selection, such as primaries, result in higher quality candidates. We exploit the institutional design of Italy’s mixed electoral system in 1994, where quotas were applied only to the PR portion of the list, to compare the qualifications of men, women, and ‘quota women’. We estimate regressions on several measures of deputies’ qualifications for office and performance in office. We find that unlike other rules limiting candidate selection, quotas are not associated with lower quality on most measures of qualifications. In fact, quota women have more local government experience than other legislators and lower rates of absenteeism than their male counterparts. Contrary to critics, quota laws may have apositiveimpact on legislator quality. Once the quota law was rescinded, quota women were less likely to be re-elected than non-quota women or men, which suggests that discrimination – not qualification – limits women’s status as candidates.</jats:p

Constitutional Sex Discrimination

Nearly thirty years have elapsed since the U.S. Supreme Court decided Craig v. Boren, a landmark case in the Court\u27s constitutional sex discrimination jurisprudence. In Craig, the justices pronounced that they would apply neither the lowest level of scrutiny-rational basis-nor the highest level-strict scrutiny-to evaluate claims of sex discrimination. Rather, the Court invoked a standard in between the two, now known as intermediate or heightened scrutiny. Under this approach, the Court asks whether a law challenged on equal protection grounds is substantially related to the achievement of an important objective. Certainly the Craig Court\u27s intermediate approach has its supporters; indeed, influential legal scholars are now advocating that courts adopt it to evaluate laws discriminating against gays and lesbians. But to many analysts, Craig (and its progeny) was and remains highly problematic. Among their claims is that the standard it instantiated is so loose and amorphous that it produces unpredictable results. In this article, we seek to bring some empirical teeth to this debate by exploring patterns in sex discrimination litigation in the U.S. Supreme Court and in state courts of last resort. Our chief finding is that the critics of heightened scrutiny probably have the better case. At the very least, the Craig standard-while generating outcomes more favorable to parties alleging sex discrimination than did the traditional rational basis test-does, in fact, lead to far less predictable results than either rational basis or strict scrutiny. For reasons that may have little to do with the standard itself, courts are just as likely to uphold sex-based classifications as they are to eradicate them. This finding has important implications for the future of sex discrimination litigation, as well as for the advancement of legal rights for gays and lesbians. As to the former, our results underscore the importance of elevating the standard used to adjudicate sex discrimination claims-a goal, as we demonstrate, that could be achieved in several distinct ways. As to gays and lesbians, our findings identify the possible costs and benefits associated with a litigation strategy designed to place their claims of discrimination in the intermediate scrutiny basket

The problem of constitutional legitimation: what the debate on electoral quotas tells us about the legitimacy of decision-making rules in constitutional choice

Proponents of electoral quotas have a ‘dependent interpretation’ of democracy, i.e. they have formed an opinion on which decision-making rules are fair on the basis of their prior approval of the outcomes these rules are likely to generate. The article argues that this position causes an irresolvable problem for constitutional processes that seek to legitimately enact institutional change. While constitutional revision governed by formal equality allows the introduction of electoral quotas, this avenue is normatively untenable for proponents of affirmative action if they are consistent with their claim that formal equality reproduces biases and power asymmetries at all levels of decision-making. Their critique raises a fundamental challenge to the constitutional revision rule itself as equally unfair. Without consensus on the decision-making process by which new post-constitutional rules can be legitimately enacted, procedural fairness becomes an issue impossible to resolve at the stage of constitutional choice. This problem of legitimation affects all instances of constitutional choice in which there are opposing views not only about the desired outcome of the process but also about the decision-making rules that govern constitutional choice

Treaty Interpretation: Rule of Politics over Rule of Law?

Reviewing: Gregory H. Fox, Paul R. Dubinsky, & Brad R. Roth, Editors, Supreme Law of the Land? Debating the Contemporary Effects; David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change of Treaties Within the United States Legal Syste