Author: Jason Mazzone

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The South Africa Marriage Case

simpsons_wedding.jpgOn December 1, 2005, the Constitutional Court of South Africa, in Minister of Home Affairs v. Marié Adrianna Fourie, ruled that laws denying same-sex couples the ability to marry violate the equal protection provision of the South Africa Constitution and the provision prohibiting unfair discrimination on the basis of (among other things) sexual orientation. The Court gave Parliament one year to fix the laws to extend equal marital rights to same-sex couples.

Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s ban on interracial marriage, is the most aptly named case in all of American jurisprudence. It’s equally appropriate that the lead plaintiff in the South Africa case extending equality in marriage has the first name of Marié.

There is much to admire about the South Africa Court’s decision. It represents the triumph of equality and compassion over exclusion and small-mindedness.

Whatever one’s views about the relevance of foreign legal decisions, there is something to learn from this one. The Constitution of South Africa and the post-Reconstruction Constitution of the United States were both designed to end institutionalized inequality. When South Africa tells us that full equality includes equal access to marriage, we should listen.

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Why Don’t More Women Want To Be Law Professors?

ProfessorImage.gifFor several years, the number of women in law schools has been very nearly the same as the number of men. But more men want to become law professors.

Among entry-level applicants for law teaching this year, the ratio of men to women is about 3:2. (The figure is based on the list of participants in the Association of American Law Schools recruiting program, the normal route to law teaching.)

Many schools want to increase the number of women on their (largely male) faculties, but the task is difficult if for every two women applying for jobs, there are three male applicants.

As reflected by the overall stiff competition for teaching jobs, being a law professor is a wonderful thing. Professors get to work on whatever interests them. The hours are embarrassingly flexible—few other jobs let you leave town for the entire summer. The pay, while less than in private practice, is very good. Nobody is supervising you on a day-to-day basis. And you can avoid co-workers you don’t like.

So why don’t more women law graduates apply for this most perfect of jobs?

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Who’s Your Daddy?

family.jpgNepotism is at work in the legal academy. The next time you wonder how a professor with an unremarkable resume landed a job, check the family tree. You’re likely to find—sometimes even in the very same school—a professor parent.

Or spouse. Husband and wife professors complain about the burdens of finding work as an academic couple, but being married to a high-profile professor can be a significant career booster. Schools that badly want a professor will lower their standards and hire that professor’s spouse—or work things out so that the spouse can teach at another school in the vicinity. (The practice seems to be a benefit of heterosexual marriage: I’ve never heard of a same-sex couple being treated so favorably.)

Judicial clerkships are a route to teaching but here too nepotism is common. Judges are prohibited from hiring their own family members but the rule doesn’t extend to the family of a current or former law clerk. Husbands and wives, brothers and sisters, sometimes even parent and child, clerk for the same judge or justice—passing around the clerkship like it’s the family silver.

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Law & Order

I’m a Law & Order fan. I love all of them: Original, Criminal Intent, Special Victims, and Trial by Jury. I also like the re-runs—even when I’ve seen an episode before there are always enough twists and turns and details to get my attention.

I’ve often gone to watch scenes being filmed in lower Manhattan. A neighbor in my building is a script checker for the show and so on occasion I’ve also been able to sneak a peek at draft scripts left in the recycling bin.

Though in real life no criminal case is resolved in one hour, Law & Order is pretty good on the substance of the law. The precedents mentioned are typically real cases. The rulings by the judges (at lightening speed) are often correct. I tell my students they can learn a lot by watching.

One curiosity is that most of the judges on Law & Order are black women. This is not realistic. Even in New York City black female judges are few and far between.

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The End of Shame

With talk these days about the decline of privacy, the disappearance of shame deserves attention. People have become less self-conscious—more willing to let the world into their intimate spaces without any sense of embarrassment. Webcams, whose operators actually invite voyeuristic strangers to observe their every move, are just one example.

The past few years have also seen a marked rise in the number of people who believe it is acceptable to take care of personal hygiene and grooming in public. Every morning I ride the subway, professional women in my car are busy applying makeup. I don’t mean making last minute touch-ups—with makeup kits perched on their knees, they’re painting a blank canvas.

I frequently also see otherwise normal looking subway riders filing and trimming their fingernails. I’ve seen eyelashes curled, eyebrows plucked, and nose hairs removed with little tweezers. (Where do these people suppose all their personal droppings end up?)

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Why does the Supreme Court accomplish so little?

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.

Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.

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