Contempt of Congress: A Reply to the Critics of an Absolute Rule of Statutory Stare Decisis

In the law school tradition of suspending belief, Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse as the critical legal studies and law-and-economics movements. The hypothetical that Eskridge has created is not a particularly difficult one for me to grapple with, as the absolute rule of statutory stare decisis is not as wooden as Eskridge might think. I shall briefly deal with his Mann Act hypothetical in Part I of this reply. In the remaining three Parts, I respond to the each of the three concurrences Eskridge has drafted

A Review Essay: Limits of \u3cem\u3eGaylaw\u3c/em\u3e

Part of Professor William Eskridge\u27s mission in Gaylaw (Gaylaw: Challenging the Apartheid of the Closet by William N. Eskridge, Jr., Harvard University Press, 1999) is to describe the historical development of the complex legal and, to some extent the cultural, landscape for gays. (pp. 17-137) Though not much of Eskridge\u27s presentation of the history of American law\u27s treatment of gays draws from original research, its synthesis of the available secondary sources is a useful contribution and will likely become a staple of classes treating the subject. The larger part of Gaylaw is the book\u27s greatest challenge and the place where Gaylaw will draw the most fire. Eskridge offers some fairly standard but nonetheless powerfully-reasoned arguments that the right of privacy should be applied to protect individuals from criminal sanction for consensual sodomy. (pp. 152-73) He makes an intriguing but incomplete case that state criminal prohibitions on sodomy run afoul of the First Amendment. (pp. 176-202) On Eskridge\u27s view, the Equal Protection Clause should invalidate a wide range of laws discriminating against homosexuals. (pp. 207-31) Finally, he urges that the similarities between religion and homosexuality should lead to greater constitutional solicitude for the latter. (pp. 296-302) Gaylaw is an admirable attempt to liberate us--gay and straight--from what Eskridge calls in the book\u27s subtitle, “The Apartheid of the Closet.” Yet it turns out that in subtle and unintentional ways Gaylaw manages to liberate from a closet what it then confines to a prison. It is an “identity prison”, to borrow Eskridge\u27s useful phrase, (p. 7) one that has the virtue of being roomier than the old closet but the vice of being another confinement. Nevertheless, Gaylaw is a clear and soberly written argument, a powerful accomplishment that both reflects and reinforces what have become some of the principal approaches to legal scholarship in the area. It manages to connect contemporary discrimination against gays with the extensive historical record of such discrimination. And it envisions a moral dimension to gay equality that is both provocative and refreshing. For those reasons alone, it cannot be ignored

The Ninth Circuit\u27s \u3ci\u3ePerry\u3c/i\u3e Decision and the Constitutional Politics of Marriage Equality

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.” Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him

Statutory Interpretation and the Idea of Progress

A Review of William N. Eskridge, Dynamic Statutory Interpretatio

The Joy of Teaching Legislation

I am going to talk about teaching legislation, a class I have taught several times at Georgetown University Law Center, as well as teaching a federal legislation clinic, which I founded ten years ago at the law school. Bill Eskridge has done a wonderful job laying out the different ways one can teach a course in legislation; you will see that my approach focuses on teaching the skills that, as Bill also correctly noted, all young lawyers will need when they start practicing

The Origins of the Transgender Phenomenon: The Challenge and Opportunity for Training Lawyers, Judges and Policy Makers in the Historicity of Alfred Kinsey’s Pansexual Worldview

How has the country gone from a “firm reliance on the protection of Divine Providence” to where defining marriage as the union of one man and one woman is condemned as constitutionally irrational,and where the use of sex-separate private spaces by biological sex is subject to federal discrimination lawsuits?The answer can be traced to 1948 when Dr. Alfred C. Kinsey launched what was marketed then--and now--as the first “scientific” study of human sexuality.Indeed, Chief Judge of the Seventh Circuit Court of Appeals, Richard Posner extols Kinsey’s study as the “high-water mark of descriptive sexology.”Influential law professors such as Columbia University’s Herbert Wechslerand Yale University’s William Eskridge have ensured that Kinsey’s world shaking reports on male and female sexuality are entrenched as authoritative scientific research in legal scholarship and mainstream cultural institutions. Yet, Judge Posner, Professors Wechsler and Eskridge and the hundreds of other scholars who have relied upon this alleged “sex science” continue to cover up the facts: Kinsey’s claims are wholly fraudulent despite having ushered in the “sexual revolution” of the 1960s and 1970s. His fame was built on lies, and the massive criminal sexual abuse of children, significantly more damaging than the cover up of child sexual abuse by the Catholic Church and graphically apparent to anyone who reads Chapter Five of his report

Overrides: The Super-Study

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom—that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.)—is true. It also suggests that broad congressional delegation to agencies—traditionally viewed with suspicion by lawyers—may come with a silver interpretive lining. The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action

Interpreting Legislative Inaction

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court\u27s legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia\u27s critique of that case law and provides support for Justice Scalia\u27s views by distinguishing actual and presumed legislative intent, arguing that, based on a conception of actual intent, Justice Scalia\u27s arguments have great persuasive power. However, Professor Eskridge suggests presumed intent may be the more accurate basis for statutory interpretation, and he concludes that on such a basis the guidance provided by legislative silence in the Patterson context is compelling