A Promising Beginning

When I began teaching at the University of Massachusetts in August 2012, one of my first encounters was with the newly-formed UMass Law Review. The editorial staff was wrapping up its initial preparations for publishing the inaugural volume. Now, over a year later, those nascent processes have since been refined; the inaugural year is over. We are excited to say that the UMass Law Review enters its sophomore year with this current issue, affectionately dubbed “9:1”

I’ll Huff and I’ll Puff — But then You’ll Blow My Case Away: Dealing with Dismissed and Bad-Faith Defendants Under California’s Anti-SLAPP Statute

Although the original enactment of California’s anti-SLAPP law was commendable, the law itself (section 425.16 of the California Civil Code) has its share of flaws. One particular wrinkle that the California appellate courts still have not ironed out in interpreting section 425.16 involves the situation where the filer of a SLAPP suit voluntarily dismisses his SLAPP suit against the victim. Because the goal of California’s anti-SLAPP statute is to deter the “chilling” effect of SLAPP suits upon the public’s ability to “petition for the redress of grievances” — which includes the cost put forth to defend such suits — the inquiry is whether the plaintiff-SLAPPer’s voluntary dismissal of his or her SLAPP suit is vindication enough to prompt a court to award the defendant-SLAPPee statutory attorney’s fees. If so, then the next question is what possible mechanisms would allow for this determination? Another wrinkle arises when defendants file frivolous anti-SLAPP motions in California. When this occurs, these frivolous motions have been found to be wolves in sheep’s clothing: the defendants have abused the statute to cover what turns out to be an illegitimate use of the political process. In this scenario, the interference with constitutional petitioning rights is not direct, but indirect through the abuse of that particular First Amendment right. Currently, the standards for detecting such undesirable SLAPP defendants lack consistency and leave much room for reform. In examining these two issues, this Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen. After introducing and evaluating the methods that courts have used to address these flaws, this Article will then uncover the complexities in the forest of SLAPP litigation in California, where legitimate petitioning rights can often be sabotaged by both sides of the bar, and offer normative solutions to help shore up the gaps for effective SLAPP suit reform

Once We\u27re Done Honeymooning: \u3cem\u3eObergefell v. Hodges\u3c/em\u3e, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination

Undoubtedly, the Supreme Court\u27s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since United States v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the United States was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQmovement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage broader protections for LGBTQ individuals beyond their marital relationships? This Article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Recently advancements in sexual orientation have been somewhat successful, and now that marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms in federal anti-discrimination laws. Although many of the judicial victories in the marriage cases have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial strides from post-Windsor cases and Obergefell that could be instrumental for furthering progress in areas of sexual orientation anti-discrimination. This Article discusses how such judicial advances ultimately bolster autonomy rights in sexual identity that anti-discrimination laws, specifically Title VII, ought to protect, but currently do not

Law as Instrumentality

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, and race of its nineteenth-century progenitors. Thus, by sustaining the illusion of scientific objectivity, the continued application of Langdellian pedagogy distorts our understandings of law and abridges individual explorations of pluralism, subjectivity, justice, and empowerment. Such inaccurate but prevailing notions of neutrality in law leads to both disenchantment and hierarchy in practice, but, worse, it also distracts from meanings of law that would otherwise have led to empowerment and critique. In this way, legal scholars have clamored for a post-Langdellian legal conception to enable us to reach more relevant and emboldened meanings in law. Prompted by such calls amidst the post-Recession crisis in the American legal academy, this Article offers such a new conception for theorizing meanings in law by locating law within its instrumentalities. “Law as instrumentality” obtains meaning by accepting law’s fragmentation and then observing, from fragmentation, the characteristics of its agency. The law is not a science; but it does embody human-made qualities of agency. This new instrumentality conception studies law’s deliberate aesthetics as a way to explore law ontologically and critique its goals, its devices, its intentions, its significances, and its teleologies. From this conception, a broader methodology can arise to bring about a more relevant and empowering understanding of law to those who render law to life

Why Flexibility Matters: Inequality and Contract Pluralism

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to soften the blow of large commercial deals gone wrong during the crisis, residential mortgage defaults across the U.S. were subject to strict contractual formalism that led to severe consequences for those pursuing one of the hallmark prizes of the American Dream, homeownership. Specifically, cases during the Great Recession featured commercial parties relying on the gravity of the Great Recession as the reason why their contract breaches ought to be excused through doctrines such as impracticability. Although impracticability defenses premised on economic changes are usually unconvincing, commercial claimants during the Great Recession had some surprising successes and advantages in taking such positions. Meanwhile, hundreds of thousands of homeowners, whose abilities to honor their mortgage agreements were also hindered by the economic downturn, could not predicate their defaults on the crisis and get away with it. Instead, they were subject to rigid contract formalism. The entitlement to flexible and innovative excuse arguments seemed particularly exclusive to commercial claimants during the Great Recession. And contract law helped sustain that exclusivity. Therein lies the inequality. This Article’s ultimate goal is not to argue, like others already have, for the efficacy of expanding contract excuse doctrines in significant times of crisis. Instead, the heart of this Article’s investigation examines, using the example of impracticability arguments during the Great Recession, why commercial parties had more access to flexibility in contracts than others in order to point out how it resonates societally for contracts. Modern contract law furthered inequality when it could have been more instrumental in advancing social mobility and economic opportunity. Thus, this Article’s observations ultimately support the idea that rather than formalism, contract pluralism ought to be adopted in order to give contracts a more meaningful role in furthering a fair and just society

Once We\u27re Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination

Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage broader protections for LGBTQ individuals beyond their marital relationships? This Article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Currently advancements in sexual orientation antidiscrimination have been less even, and now that marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms reflected in federal anti-discrimination laws. Although many of the judicial victories in the marriage cases have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial strides from post-Windsor cases and Obergefell that could be instrumental for furthering progress in areas of sexual orientation anti-discrimination. This Article discusses how such judicial advances ultimately bolster autonomy rights in sexual identity that anti-discrimination laws, specifically Title VII, ought to protect, but currently do not

Colonizing Queerness

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness

Weather Permitting: Incrementalism, Animus, and the Art of Forecasting Marriage Equality After U.S. v. Windsor

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animusfocused jurisprudence for lifting the discrimination against the expression of certain sexual identities. If the law is shifting from essentialism while veering closer to marriage equality, then will these parallel journeys end by reaching a constructivist approach to sexual identity? Pure constructivism poses thorny risks for attempts to include orientation as a suspect classification for heightened scrutiny. As an example, the immutability factor is likely to resist constructivist ideas that sexual identity is a choice or a construct. Windsor’s use of animus-focused jurisprudence hints at a solution that allows the abandoning of essentialism to reach a middle ground because animus-focused jurisprudence moves the examination away from whether a trait is protectable under equal protection toward the animus that created the discrimination within a law itself. This Article explores Windsor’s animus-focused jurisprudence as the convergence of both marriage equality and incrementalism, and posits normative reasons for sustaining this jurisprudence stepping forward

A Vast Image Out of Spiritus Mundi: The Existential Crisis of Law Schools

In her recent book, Teaching Law: Justice, Politics, and the Demands of Professionalism, Robin L. West articulates that the crisis is not merely as the The New York Times and other media outlets have described it — not entirely about the faulty business practices of law schools or the lack of practice-oriented teaching in law classrooms. Instead, the crisis lies at the existential core of law schools. The original nineteenth-century set-up of the American law school and that model’s continued existence today have contributed to an identity crisis for law schools, revealing its major incompatibility with how the law is currently understood and practiced. This Review considers the findings in West’s enlightening and well-research book — where she observes how legal formalist ideals of lawyering established a law school model that led the academy astray from what ought to be the academy’s values on teaching, scholarship, and the profession. Such a wayward trajectory, which if left ignored, will harbor serious ramifications about the how the academy thinks about justice and politics in relation to the law. At the root of West’s law school reforms is a critical overhaul of the law school curriculum to reflect the teaching of legal knowledge that demonstrates normatively what it means to be a modern lawyer — and not just what it means to “think like a lawyer.” This Review builds on her findings and advocates that in addition to reconsidering what law schools teach, the academy must also ensure that students can transfer that learning into a more comprehensive lawyering experience

\u3ci\u3eLaw as Instrumentality\u3c/i\u3e

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of“law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, continues to influence the inductive methodologies used today to impart knowledge in American legal education. This lasting influence of the Langdellian scientific conception of law has persisted even as the present crisis in legal education has engendered other reforms. However, subsequent movements of legal thought have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, and race of its nineteenth-century progenitors. Thus, by sustaining the illusion of scientific objectivity, the continued application of Langdellian pedagogy distorts our understandings of law and abridges individual explorations of pluralism, subjectivity, justice, and empowerment. Such prevailing false notions of neutrality in law leads to both disenchantment and hierarchy in legal practice, but worse it also distracts from meanings of law that would otherwise have led to empowerment and critique. In this way, legal scholars have clamored for a post-Langdellian legal conception to enable us to reach more relevant and emboldened meanings in law. Prompted by such calls amidst the post-Recession crisis in the American legal academy, this Article offers such a new conception for theorizing meanings in law by locating law within its instrumentalities. “Law as instrumentality” obtains meaning by accepting law’s fragmentation and then observing, from fragmentation, the characteristics of its agency. The law is not a science; but it does embody human-made qualities of agency. This new instrumentality conception studies law’s deliberate aesthetics as a way to explore law ontologically and critique its goals, its devices, its intentions, its significances, and its teleologies. From this conception, a broader methodology can arise to bring about a more relevant and empowering understanding of law to those who render it to life