Faith-Based Emergency Powers

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three key components: (1) a rhetoric of war, emergency or catastrophe; (2) a legal argument for suspension of existing human rights; and (3) a designation of decision-makers in real or perceived emergencies who are allegedly more qualified than courts or legislatures to address the national-security emergency. The consequence is temporary suspension of human rights in real or perceived national-security emergencies. The principal claim of this Article is that in contemporary culture wars, conservative politicians, lawmakers, and litigants have imported these emergency powers rationales to a range of legal contexts including marriage-equality, the Affordable Care Act (ACA), and general antidiscrimination laws. For example, the Supreme Court has recently granted certiorari in the case of a Denver baker who refused to sell a wedding cake to a same-sex couple. In its 2017-2018 session the Court will decide whether an individual’s religious or moral objection to same-sex marriage trumps state public accommodations laws. In this case and in many others, the conservative position typically follows the rationales of traditional emergency powers in (1) applying rhetoric of war and emergency; (2) arguing for suspension of legal rights of women and sexual minorities and; (3) claiming deference to religious or moral dissenters. The end goal, as in the war-on-terror, is to suspend or diminish legally recognized individual rights. The Article concludes that lawmakers ought to defend the rule-of-law and individual rights by rejecting Faith-Based Emergency Powers

Honor and Destruction: The Conflicted Object in Moral Rights Law

In 1990, the Copyright Act was amended to name visual artists, alone among protected authors, possessors of moral rights, a set of non-economic intellectual property rights originating in nineteenth-century Europe. Although enhancing authors\u27 rights in a user-oriented system was a novel undertaking, it was rendered further anomalous by the statute\u27s designated class, given copyright\u27s longstanding alliance with text. And although moral rights epitomize the legacy of the Romantic author as a cultural trope embedded in the law, American culture offered little to support or explain the apparent privileging of visual artists over other authors. What, if not a legal or cultural disposition toward visual artists, precipitated the enactment of a moral rights statute like the Visual Artists Rights Act of 1990 (\u27\u27VARA )? This Article demonstrates that the answer is less related to authorship concerns than would reasonably be surmised from a doctrine premised on the theory that a creative work embodies the author\u27s honor, personhood, and even soul

Discipline and Policing

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards. This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs. First, making PDRs public will may lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs. The problem with individualized transparency is not theoretical. In fact, it has been much critiqued by scholars in a different but comparable realm: the wide dissemination of criminal records. PDRs and criminal records have similar problems: due process issues, inaccuracy, arbitrary and discriminatory enforcement, and permanent reputational harm. Indeed, the rhetoric used by law enforcement to defend their privacy rights sounds almost identical to the critiques that scholars make of criminal record transparency. This Article argues that the comparison of PDRs and criminal records is instructive because it allows us to view criminal records through a new lens. As with criminal record publication, forced PDR transparency will likely not solve the problems advocates hope it will. Thus, this Article concludes that a more nuanced regime should be put in place for PDRs, and that advocates should use law enforcement rhetoric to support a more privacy-protective regime for criminal records

The Canon Wars

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, Reading Law, and the other by Yale Law Professor William N. Eskridge, Interpreting Law. Both volumes purport to provide ways to use canons to read statutes and the Constitution. In this Review of Interpreting Law, we argue that this contemporary convergence on canons raises some significant interpretive questions about judicial power and the very idea of a canon

Patent Law, Copyright Law, and the Girl Germs Effect

[Excerpt] Inventors pursue patents and authors receive copyrights. No special education is required for either endeavor, and nothing precludes a person from being both an author and an inventor. Inventors working on patentable industrial projects geared toward commercial exploitation tend to be scientists or engineers. Authors, with the exception of those writing computer code, tend to be educated or trained in the creative arts, such as visual art, performance art, music, dance, acting, creative writing, film making, and architectural drawing. There is a well-warranted societal supposition that most of the inventors of patentable inventions are male. Assumptions about the genders of the authors of remunerative commercially exploited copyrights may be less rigid. Women authors are more broadly visible than women inventors across most of the typical categories of copyrightable works. Yet, whether one considers patentable inventions or copyrightable works, the vast majority of the very profitable ones are both originated and controlled by men. This causes a host of negative consequences for women. They start and run businesses at much lower rates than men and rarely reach elite leadership levels in the corporate world or within high-profile artistic or cultural communities. They are perceived as less competent, less dedicated, and less hard working, and suffer from a lack of female mentors and female colleagues. Women are lied to during financial negotiations more than men and earn less than men in equivalent positions. Women control only a tiny portion of the world’s wealth. Though female students outperform male students in almost every context and at almost every level of education, and even seek postdegree job-related training in greater numbers than men, this has not helped women to produce and control patentable inventions or to author and own valuable copyrighted works in numbers comparable to men

#SocialJustice: Combatting Implicit Bias in an Age of Millennials, Colorblindness, & Microaggressions

Law schools, in an effort to produce practice-ready graduates, are in an opportune position to take the lead in confronting social justice. Many schools are shifting from traditional classroom instruction to more experiential learning environments which place students early in their academic pursuits in contact with clients and legal problems. While academic support originally focused on racial integration in law schools, today’s Academic Support professionals support students who are diverse in various ways. As professionals, we cannot assume that our diverse students do not carry bias. Implicit bias, a bias one is not consciously aware of, has the ability to derail relationships with clients and peers. Complicating matters is the general assumption that Millennials, the “colorblind” generation, are the most tolerant of all previous generations. Yet, studies have found Millennials just as susceptible to bias as previous generations. Thus, law schools have the responsibility to train their students to become lawyers who are capable of working with diverse groups of people and do so with the ability to mitigate their biases, which could potentially bring a fairer administration of justice. This training must go beyond informing students about implicit bias but also teach them mechanisms to combat such bias

Christians and Pagans

(Excerpt) In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) religious arguments in the lawmaking process, and (c) the application of public accommodation antidiscrimination laws to religiously devout persons

In the Shadow of a Myth: Bargaining for Same-Sex Divorce

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article\u27s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser\u27s terminology, they are not bargaining in the shadow of the law. Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce. The Article shows how a myth of egalitarianism undermines current bargaining for same-sex divorce. First, the myth leads to what the Article calls “divorce exceptionalism,” that is, when a party claims that existing marriage dissolution rules do not apply in same-sex divorce because they were designed to remedy the nonegalitarian conditions of different-sex marriages. Divorce exceptionalism disables effective bargaining because without default legal rules there is nothing to guide the bargaining process. Second, the myth of egalitarianism eliminates key bargaining chips: under a presumption of formal equality neither party really has anything to “give” or “get” in the bargain for divorce. Finally, the myth, combined with the general fog of uncertainty regarding how courts will treat same-sex divorces, may lead to increased strategic behavior. The Article proposes a realistic solution, arguing that the legal actors who participate in same-sex divorce, including lawyers, mediators, courts, and the parties themselves, should reject divorce exceptionalism and apply ordinary divorce rules. It also proposes to protect vulnerable parties by extending to same-sex divorce the current trend toward joint-custody presumptions. The myth of egalitarianism in same-sex couples, which was quite helpful in achieving marriage equality, is now haunting the first wave of same-sex divorces and harming vulnerable parties. It is time to let it go and address the reality of same-sex relationships

Legalism and Decisionism in Crisis

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is constrained by law in emergencies. In contrast, under the Decisionist approach, legal norms cannot respond to all emergencies, and therefore the executive branch is and should be the primary decision-maker in emergencies. Legalists emphasize the importance in emergencies of norms, and Decisionists emphasize the importance in emergencies of decisions. This Article shows not only the disagreements between Legalism and Decisionism but also the three key political assumptions that they often share. First, they agree that emergencies trigger a necessity for security measures that may curtail civil liberties. Second, they perceive public enemies as distinct from private enemies. Third, they share the view that the primary goal of the state and its laws is the prevention of future catastrophes. This Article offers an alternative approach, which I call Humanist Decisionism. Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the prevailing politics of necessity, enmity, and catastrophe with a politics of friendship and hospitality. This approach has normative implications for the desirability of the legal distinction between public and private enemies, for the level of judicial scrutiny regarding the existence of an emergency, and for the possibility of adopting political and legal measures of friendship and hospitality towards the so-called enemy

Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen\u27s stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen\u27s ideas about the nature of punishment serves two purposes, one historical and the other theoretical. The historical aim is to elucidate Stephen\u27s own thought, a subject which has been thoroughly contested and, unfortunately, deeply misunderstood. The primary culprit has been exactly the effort to pin down Stephen\u27s ideas about punishment as retributivist, or consequentialist, or a specific hybrid. The drive to systematize Stephen\u27s thought has had the regrettable effect of flattening it, in some cases unrecognizably. Though he followed Kant, Hegel, Beccaria, and Bentham, Stephen wrote at a time that preceded the full flowering of the philosophy of punishment by roughly a century, and his assumptions and arguments about the nature and purposes of punishment are an uncomfortable fit within the modern hard-edged methodology of punishment theory. The theoretical aim concerns whether punishment theory might learn from its serious misunderstanding and misrepresentation of Stephen, whether and to what extent its own methodological assumptions ought to be adjusted in light of the paper\u27s historical reconstruction. The article claims that that they might be, and arguably should be. Perhaps more than any other writer on the subject, Stephen poses a powerful challenge to the methodology of systematization in punishment theory; his ideas are an extended argument that an allegiance to system renders thought about the reasons for punishment less rich and more monolithic than they otherwise might be. The article suggests, first, that punishment theorists ought to open themselves to historical scholarship as a source of illumination in fashioning, and perhaps modifying, their sophisticated normative accounts; and second, the theoretical perspective that is most capable of internalizing historical studies and ideas would adopt a pluralistic view of the justification of punishment. The reason for examining neglected historical views is that one may actually improve one\u27s theory by beclouding and complicating it with perspectives that do not match one\u27s existing prescriptive views. And the reason for inclining toward pluralistic theoretical accounts is that it is precisely their untidy and unsystematic methodological commitments which make it possible for theory to learn from history