Conflicts and the Shifting Landscape Around Same-Sex Relationships

Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships. In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives(i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex couples complicates and requires additional nuance in our conflicts analysis. The article also suggests that different jurisdictions with different recognition regimes for these kinds of non-marriage relationships ought to resolve such conflicts differently--even if they apply the very same conflicts methodology. This Essay intends to complement Resolving Interstate Conflicts in two ways. First, it further explores my claim that the introduction of marriage alternative schemes adds dimensions to the conflicts analysis. Second, much more broadly, and likely more controversially, it considers whether same-sex marriage advocates should pursue conflicts-based arguments as a basis for expanding marriage recognition in states that do not currently recognize same-sex marriage. I believe the answer may be no-despite, and in part, because of my unhesitating support for same-sex marriage. In other words, I suggest that advocates for same-sex marriage should forgo some arguments that, if successful, could help them expand recognition of same-sex marriage

Justice Gorsuch\u27s Views on Precedent in the Context of Statutory Interpretation

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent. This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory interpretation, where precedent is said to have special force. To this end, I review the available evidence, including Justice Gorsuch’s coauthored treatise on precedent, his opinions while serving on the court of appeals, his public speeches, and the early opinions (majorities, concurrences, and dissents) he has written while on the Supreme Court

What Do We Really Know About the American Choice-of-Law Revolution?

This Book Review reviews Symeon Symeonides\u27s recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for further research

Private Schools\u27 Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states should adopt to explicitly allow private schools to adopt policies to exclude unvaccinated children

Tax Credit Scholarship Programs and the Changing Ecology of Public Education

The traditional model of public education continues to be challenged by advocates of school choice. Typically associated with charter schools, magnet schools, and tuition voucher programs, these advocates have recently introduced a new school choice plan, namely tax credit scholarship programs. More than a dozen states have adopted such programs, and hundreds of millions of dollars are now diverted each year from public programs to private schools. These programs are poorly understood and under-studied by legal scholars. This Article assesses the place of these programs within the ecology of public education, considers the fundamentally different approaches states have taken to these programs, identifies some critical questions and problems with them, and proposes a set of best practices for states to follow in designing and implementing them

The Food Stays in the Kitchen: Everything I Needed to Know About Statutory Interpretation I Learned by the Time I was Nine

What happens when kids and their parents interpret laws like lawyers and judges? Where and why does interpretation go off the rails? Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that no food may be eaten outside the kitchen. What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies. The piece is meant to demonstrate the following: * We all regularly use the basic tools and modes of statutory interpretation; * When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources; * Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results; * Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred; * The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time

Resolving Interstate Conflicts Over Same-Sex Non-Marriage

States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage-like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all. What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, like New Jersey? Will, and should, New Jersey recognize the Massachusetts marriage as a marriage under New Jersey law; or should it refuse to recognize it entirely; or should it automatically convert the relationship to New Jersey’s marriage-like alternative? Concerning these issues, which I call the marriage/marriage-like/marriage-lite conflicts, the law is deeply unsettled. Further, until now, scholars have focused nearly exclusively on conflicts that arise between states that recognize same-sex marriage and those that offer them no recognition at all, ignoring the marriage/marriage-like/marriage-lite conflicts; and the approaches they have offered do not translate to this new context. This Article fills this lacuna and offers a new framework for resolving the marriage/marriage-like/marriage-lite conflicts. It also explores some substantial implications of this new approach

Resolving Interstate Conflicts Over Same-Sex Non-Marriage

States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage- like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all. What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, like New Jersey? Will, and should, New Jersey recognize the Massachusetts marriage as a marriage under New Jersey law; or should it refuse to recognize it entirely; or should it automatically convert the relationship to New Jersey’s marriage-like alternative? Concerning these issues, which I call the marriage/marriage-like/marriage-lite conflicts, the law is deeply unsettled. Further, until now, scholars have focused nearly exclusively on conflicts that arise between states that recognize same-sex marriage and those that offer them no recognition at all, ignoring the marriage/marriage-like/marriage-lite conflicts; and the approaches they have offered do not translate to this new context. This Article fills this lacuna and offers a new framework for resolving the marriage/marriage-like/marriage-lite conflicts. It also explores some substantial implications of this new approach

Making the Law: Unpublication in the District Courts

In recent years, one particular area of focus for legal scholars concerned about the increasing privatization and opacity of courts has been the issue of systematic unpublication of judicial opinions by the appellate courts. Judges have issued dueling opinions on the constitutionality of the practice and traded polemics on its appropriateness. Practitioners – whose voices often seem lost (or at least muted) on issues like this – are in the thick of the debate. No longer merely academic, this debate has even spawned a change in the rules of appellate procedure (one that amusingly pulled off the difficult feat of being both highly controversial and relatively minor). Unfortunately, amid all of the talk about unpublication by appellate courts and the larger issues of accessibility, accountability and transparency that it raises, unpublication in the district courts — more than 95% of opinions go unpublished – has escaped the notice and consternation of scholars. I say “unfortunately” because this practice seems to raise at least as many, and likely more, problems as the unpublication practices in the appellate courts. In this Article, I address the issue of unpublication in the district courts from a normative perspective for the first time. I draw from the rich parallel literature regarding appellate court publication practices, but argue that unpublication in the district court context raises an even broader set of concerns. My argument rests on two fundamental points. First, district courts play a unique institutional role in our system of adjudication, one that gives district judges exceptional power to make and shape the law. Indeed, from the perspective of a realist, district judges have even greater control over the law than do their appellate counterparts, yet they often operate free from appellate oversight and public scrutiny. Second, in contrast to the appellate context, where even “unpublished” opinions are usually available for public review, in the district court context, “unpublished” opinions almost disappear. Thus, the law in the district courts--the central location of lawmaking in our system--is rendered opaque, and our district judges unaccountable. My argument proceeds as follows. In Part II, I begin by exploring the institutional role of the district courts and arguing that district judges, in a legal realist sense, make the law. In Part III, I define my terms “unpublished” and “opinions” for the district context, and provide an overview of the publication process in the district courts. Next, in Parts IV and V, the heart of this Article, I examine the troubling implications of the practice – what I term the “transparency” and “accountability” problems, respectively – and then argue that the justifications for unpublication are overstated, unconvincing and anachronistic. Finally, in Part VI, I argue that existing technology allows us to move beyond this problem and briefly explore how, from a practical standpoint, current practices could be reformed

Private Schools\u27 Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states should adopt to explicitly allow private schools to adopt policies to exclude unvaccinated children