United States v. Windsor and the Future of Civil Unions and Other Marriage Alternatives

This essay is the fourth in a series exploring the implications of the recent landmark Supreme Court case, United States v. Windsor. Specifically, this essay focuses on the future of civil unions. This discussion was inspired by Meg Penrose’s article, UNBREAKABLE VOWS: SAME-SEX MARRIAGE AND THE FUNDAMENTAL RIGHT TO DIVORCE, published in Volume 58:1. The series is meant to serve as an open forum for scholars and practitioners to weigh in on one of the most significant Supreme Court decisions of the 21st century

Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights

This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970\u27s through late 2008. Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970\u27s, the socially enforced invisibility of gay lives and relationships translated into an inability to regard gay marriage as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view. Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts have been able to focus on economic understandings and the law of contract

Defamation in the Twenty First Century: Some Observations and a Brief Taxonomy

Defamation law has had a bumpy ride lately. Designed as a mechanism for the restoration of unfairly sullied reputations, recent high-profile cases have revealed the tort’s limitations in the era of social media saturation and virality. Some of these cases should never have been brought, while others would more naturally have been based in other torts, including intentional infliction of emotional distress or interference with business relations. Beginning with a brief, targeted history of defamation law that focuses on its essential purpose, this article then discusses several recent, high-profile cases that have both exposed the limitations of defamation law and suggested a way forward. Working in reverse from the damages sought in several cases involving celebrities and other public figures, this article argues for limiting defamation to its proper office as a means of reputational repair, while sorting other cases into more appropriate intentional tort categories

BULLYING, LITIGATION, AND POPULATIONS: THE LIMITED EFFECT OF TITLE IX

During the past few years, the problem of school bullying has gained national prominence. Scholars, policy-makers, and media outlets have belatedly begun to address the long-term physical consequences of bullying for children, as well as the corrosive effect of this destructive conduct on the learning environment. Because the problem is complex and multi-factored, however, solutions remain elusive. This article examines and compares two approaches to dealing with bullying. First, litigation is considered as a way of responding to the most serious cases. Suing school districts that allow bullying to go unchecked can be helpful: victims are often entitled to compensation, officials in other school districts can be deterred by news of liability against other schools, and the ability to have one’s story heard in court can be a powerful balm in some cases. Yet litigation has substantial limitations. It is only an option in a small number of cases involving the most serious harms, but most bullying does not result in that level of injury. And even where settlements compel a student to create anti-bullying initiatives, often the resulting programs are designed to avoid litigation rather than to address the deeper issues that cause bullying in the first place. With the limitations of a litigation strategy thus described, the article moves on to consider how a public health approach can lead to better outcomes. Public health takes account of all affected populations, and is committed to an evidence-based model of problem-solving. The article examines state laws and policies for fit with sound public health principles, and provides analysis of how these initiatives might result in an overall reduction in the incidence and prevalence of bullying