Archive for the ‘Civil Rights’ Category
Stanford Law Review Online: Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath
posted by Stanford Law Review
The Stanford Law Review Online has just published an Note by David R. Friedman entitled Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath. Mr. Friedman argues that:
[M]any of the Justices, especially Justices Sotomayor and Ginsburg, seemed troubled by the implications of Michigan’s amendment for traditionally disadvantaged minorities. At the same time, several Justices seemed perplexed by the potentially wide scope of a doctrine that, in its most expansive form, subjects every law that moves a decision from one level of government to another to strict scrutiny. For instance, if Michigan’s constitutional amendment is subject to strict scrutiny, is Title VII subject to strict scrutiny? Is the Fair Housing Act? Is 42 U.S.C. § 1983? All three of these laws similarly move a decision involving race—the decision of how much governmental protection to provide against racial discrimination—from one level of government (the states) to another (the federal government). These types of potential consequences led to a great deal of time being consumed by questions looking to answer that classic legal question: where do we draw the line?!
The Michigan electorate should be required to pay now or pay later to prove that the laws of its state do not violate the Constitution. If it chooses to pursue a state constitutional amendment through direct initiative, it will trade the scrutiny of the legislative process, mediated by those who have taken an Article VI oath to uphold the Federal Constitution, for the burden of affirmatively proving that its measure is constitutional.!footnote_21 If it chooses instead to lobby its state legislature to propose a state constitutional amendment, it will face no such burden later in the process. Only by requiring this choice can we really be sure that “equal treatment” is actually the same as “equal protection” in this case.
Read the full article, Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath at the Stanford Law Review Online.
posted by UCLA Law Review
Volume 61, Issue 1 (August 2013)
|Against Endowment Theory: Experimental Economics and Legal Scholarship||Gregory Klass & Kathryn Zeiler||2|
|Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case||Mark D. Rosen & Christopher W. Schmidt||66|
December 6, 2013 at 6:59 pm Tags: 4th amendment, article iii, broccoli, Constitutional Law, critical race theory, Current Events, endowment effect, endowment theory, Fourth Amendment, health care, portable electronic devices, search, united states v. cotterman Posted in: Civil Rights, Constitutional Law, Economic Analysis of Law, Health Law, Law Rev (UCLA), Legal Theory, Race, Supreme Court Print This Post No Comments
posted by Richard Storrow
The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.
The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.
New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.
Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.
While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.
Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.
If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
November 21, 2013 at 3:44 pm Tags: First Amendment, Public Accommodations, Sexual Orientation Discrimination Posted in: Civil Rights, Constitutional Law, First Amendment, LGBT, Religion Print This Post 21 Comments
posted by Albert Wong
By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School
In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.
Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.
In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)
Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”
On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?
November 1, 2013 at 11:02 am Posted in: Anonymity, Civil Rights, Culture, Current Events, Cyber Civil Rights, Government Secrecy, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post 10 Comments
posted by Dave Hoffman
Where were we? I know: throwing stink-bombs at a civil procedure panel!
At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz. Florencia Marotta-Wurgler provided comments. The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are. The paper proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone. Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought. A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true? Here are some reasons to doubt it.
Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions. Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time. Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result. Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.” That is, is it possible to turn online T&Cs back into real contracts?
Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample. I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!” Which it is.
After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then, Ghazala Azmat and Rosa Ferrer presented Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care. What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available. Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.
The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives); and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado. I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.
Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan. There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days. I just wish there were more Twiqbal papers.
October 29, 2013 at 8:37 pm Posted in: Capital Punishment, Civil Procedure, Civil Rights, Conferences, Constitutional Law, Contract Law & Beyond, Courts, Economic Analysis of Law, Empirical Analysis of Law Print This Post No Comments
posted by Marc Poirier
United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.
In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.
From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read the rest of this post »
October 29, 2013 at 12:08 pm Tags: civil union, domestic partnership, equal protection, fundamental right, liberty, marriage equality, Windsor v. United States Posted in: Civil Rights, Constitutional Law, Family Law, LGBT, Uncategorized Print This Post 3 Comments
posted by Dave Hoffman
From Daniel McCarthy:
“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.
But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”
McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles. And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?
posted by Marc Poirier
Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.
It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read the rest of this post »
October 23, 2013 at 3:17 pm Tags: civil union, equal protection, fundamental right, LGBT, marriage equality, New Jersey, same sex marriage Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, LGBT, Uncategorized Print This Post No Comments
posted by Rachel Godsil
Since last night I have been writing and re-writing this blog about race and the fiscal crisis. My link to the New York Times page keeps changing – though the content remains essentially the same. As the Senate moves toward a deal to reopen the government and avert a default, the Times reports that the House balks.
What explains the continued opposition to a deal, despite the seemingly obvious catastrophic consequences of a government default? Racial anxiety may be playing a role, suggests Shutdown Power Play: Stoking Racism, Fear of Culture Change to Push Anti-Government Agenda. The article describes an analysis by Democracy Corp (a research group led by Stan Greenberg and James Carville) of focus groups with three groups comprised of Evangelicals, Tea Party Republicans, and moderates. The Democracy Corp concludes that “base supporters” of the Republican Party fear that they are losing to a Democratic Party of big government that is creating programs that “mainly benefit minorities. Race remains very much alive in the Republican Party.”
So here we are again. Encouraging mistaken beliefs that only a particular few benefit from government programs – and perpetuating the continued division of “us” and “them” on racial grounds has long been a political strategy. Ronald Reagan’s “welfare queen” is a stereotype that continues to live on in some corners. Even though welfare, like most government programs, including the Affordable Care Act, stands to benefit large numbers of whites. Indeed, according to 2011 census figures, 46.3% of all uninsured people are non-Hispanic white while 16% are black.
Why has the blog taken so long? Because the counter-strategy is challenging.
The instinctive response is to call out those distorting the facts as racist. This tactic has the benefit of moral clarity, and is emotionally satisfying. But calling out those who oppose the implementation of the Affordable Care Act as “racist” will not move people in the political middle. This group is likely to consider someone “racist” only if they publicly disclose old-school-George-Wallace-like animus toward people of color. The political debate about the role of government in people’s lives—particularly the less fortunate—is much murkier territory, filled with subterranean, unspoken dynamics and assumptions. It does not resemble the image of ardent segregationists proudly flaunting their bigotry.
But simply ignoring the role race is still playing and pretending that we are all “color-blind” is also inadequate. Social science research has shown that most people carry a set of stereotypical assumptions about race – and that these stereotypes are most likely to influence decision making when race is right below the surface but not expressly mentioned. A set of juror studies by Sam Sommers and Phoebe Ellsworth provides powerful evidence of this phenomenon (for a short description of these studies, see this recent piece by Sommers).
The juror studies suggest that when mock jurors confront inter-racial incidents in which racially charged language is used, white jurors were no more likely to convict a black than a white defendant. When an incident involved a white victim and a black defendant but was otherwise not racially charged, white jurors were more likely to convict a black defendant than a white defendant. Why? Because only in the incident in which racial language was used were white jurors conscious that race may come into play — which triggered them to work to be fair. Donald Bucolo and Ellen Cohn in their study, Playing the race card: Making race salient in defense opening and closing statements, found similar effects in inter-racial trials: when defense attorneys explicitly mention race, white juror bias toward black defendants is reduced.
The findings in the juror studies are heartening – they provide an empirical foundation for the idea that most white people want to be racially egalitarian. And they suggest a way forward in policy discussions even if they do not provide play-by-play instructions. The goal, as john powell aptly states, is to allow people to maintain a self-concept as egalitarian while drawing attention to behaviors that are inconsistent with those values.
I have found listeners of all races to be extremely receptive to this social science in talks at public libraries as well as law schools. White listeners express relief that they are not being accused of racism – and once this anxiety is alleviated, the defensiveness melts away. Listeners of all races seem very interested in the facts about who benefits from government programs and how race operates in the unconscious.
This material is harder to translate into a sound-bite. But it seems to be the best way forward to an honest conversation about race.
posted by UCLA Law Review
Volume 61, Discourse Discourse
October 15, 2013 at 7:05 pm Posted in: Civil Rights, Constitutional Law, Current Events, Economic Analysis of Law, Financial Institutions, International & Comparative Law, Law Rev (UCLA), Politics Print This Post No Comments
posted by Kaimipono D. Wenger
A handful of state legislatures have recently passed or considered some different proposed bills to address the harm of non-consensual pornography (often called ‘revenge porn’). The topic of revenge porn raises important questions about privacy, civil rights, and online speech and harassment.
Law professor Mary Anne Franks has written previously on the topic in multiple venues, including in guest posts at Concurring Opinions. We were pleased to catch up with her recently to discuss the latest developments. Our interview follows:
Hi, Mary Anne! Thanks so much for joining us for an interview. This is a really interesting topic, and we’re glad to get your take on it.
I am delighted to be here! Thank you for having me.
Okay, some substantive questions. First, what is ‘revenge porn’? Read the rest of this post »
posted by Rachel Godsil
Today’s New York Times lead story, “Millions of Poor Are Left Uncovered by Health Law,” reports on the devastating effect that states’ decisions not to expand Medicaid is having on poor people. This article is accompanied by an image – on the jump page 18 in print and featured online – of two poor families, one in Mississippi and one in Texas. Neither family is white.
The imagery leads the reader to presume that white people are unaffected by the failure to expand Medicaid and also perpetuates the general stereotype that most poor people are Black or Latino. The census figures released in 2013 tell a different story: 18.9 million non-Hispanic whites live in poverty and 8.4 million live in deep poverty. The next largest demographic group living in poverty is Latino – with 13.6 million living in poverty and 5.4 million living in deep poverty. The smallest group of people living in poverty – by over 8 million — are Black people, with 10.9 million living in poverty and 5.1 living in deep poverty. These numbers are staggering and shameful. And it is true that a larger proportion of African Americans and Latinos live in poverty than whites by a significant margin. However, the decision to depict only Black and Latino families in an article about poverty is itself problematic on a number of fronts.
Living in poverty should not be seen as an individual or group failure. Most of us have lived in poverty at some point in our own lives or in our families’ history. And undoubtedly the authors of the article and the editors who chose the picture have sympathy for poor people and hope that their news story and the image will elicit concern and moral outrage. This result is unlikely. Instead, research in social psychology suggests that news stories and images of this sort generally have exactly the opposite effect.
In an article entitled Justifying Inequality: A Social Psychological Analysis of Beliefs about Poverty and the Poor, Heather Bullock at the University of California, Santa Cruz explains that: ”single mothers and ethnic minorities, most notably African Americans, are the public face of poverty. Consequently, poverty is viewed not only as a “minority” problem (Gilens 1999; Quadagno 1994) but a reflection of weak sexual mores and the decline of the nuclear family (Lind 2004; Orloff 2002). Stereotypes about the poor and ethnic minorities mirror each other with intersecting characterizations including laziness, sexual promiscuity, irresponsible parenting, disinterest in education, and disregard for the law.” So the imagery in the NYT article and the discussion of the particular effects on single mothers and “poor blacks” simply confirms negative stereotypes. And the stereotypes are not rooted in fact. The vast majority of African Americans and Latinos in the United States — over 70% — are not poor.
This article and many others in the media contribute to a set of negative stereotypes about people of color and render invisible the enormous numbers of whites who are poor. Sadly, the combined effect, as Bullock explains, appears to be a growing tolerance for economic inequality and a willingness to support decisions that harm the poor (such as the rejection of Medicaid expansion).
The negative stereotypes, as I will discuss in future posts, underlie a set of psychological phenomena such as implicit bias, that underlie discriminatory behavior even among those with egalitarian values and create significant obstacles for progress toward racial equality. As an academic and as a civil rights litigator in my previous life, I have focused on legal and policy change as a means toward racial equality. More recently, I have been part of a consortium, the American Values Institute, linking social scientists with lawyers, legal academics, and the media to recognize the significance of culture. Law, as we all know, is in part a creature of culture. So long as our culture is infused with distorted facts and images about race, law reform is a vastly more difficult task.
posted by UCLA Law Review
Volume 61, Discourse Discourse
|The View From Below: Public Interest Lawyering, Social Change, and Adjudication||Douglas NeJaime||182|
posted by Dave Hoffman
[A brief note of apology: it's been a terrible blogging summer for me, though great on other fronts. I promise I'll do better in the coming academic year. In particular, I'd like to get back to my dark fantasy/law blogging series. If you've nominations for interviewees, email me.]
One of the major lessons of the cultural cognition project is that empirical arguments are a terrible way to resolve value conflicts. On issues as diverse as the relationship between gun ownership and homicide rates, the child-welfare effects of gay parenting, global warming, and consent in rape cases, participants in empirically-infused politics behave as if they are spectators at sporting events. New information is polarized through identity-protective lenses; we highlight those facts that are congenial to our way of life and discounts those that are not; we are subject to naive realism. It’s sort of dispiriting, really. Data can inflame our culture wars.
One example of this phenomenon is the empirical debate over minimum wage laws. As is well known, there is an evergreen debate in economics journals about the policy consequences which flow from a wage floor. Many (most) economists argue that the minimum wage retards growth and ironically hurts the very low-wage workers it is supposed to hurt. Others argue that the minimum wage has the opposite effect. What’s interesting about this debate -to me, anyway- is that it seems to bear such an orthogonal relationship to how the politics of the minimum wage play out, and the kinds of arguments that persuade partisans on one side or another. Or to put it differently, academic liberals in favor of the minimum wage have relied on regression analyses, but I don’t think they’ve persuaded many folks who weren’t otherwise disposed to agree with them. Academic critics of the minimum wage too have failed to move the needle on public opinion, which (generally) is supportive of a much higher level of minimum wage than is currently the law.
How to explain this puzzle? My colleague Brishen Rogers has a terrific draft article out on ssrn, Justice at Work: Minimum Wage Laws and Social Equality. The paper urges a new kind of defense of minimum wages, which elides the empirical debate about minimum wages’ effect on labor markets altogether. From the abstract:
“Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.”
I’m a huge fan of Brishen’s work, having been provoked and a bit convinced by his earlier work (here) on a productive way forward for the union movement. What seems valuable in this latest paper is that the minimum wage laws are explicitly defended with reference to a widely shared set of values (dignity, equality). Foregrounding such values I think would increase support for the minimum wage among members of the populace. The lack of such dignitary discussions in the academic debate to date has level the minimum wage’s liberal defenders without a satisfying and coherent ground on which to stand. Worth thinking about in the waning hours of Labor’s day.
September 2, 2013 at 9:02 pm Posted in: Behavioral Law and Economics, Civil Rights, Consumer Protection Law, Contract Law & Beyond, Culture, Current Events, Empirical Analysis of Law, Employment Law Print This Post 2 Comments
Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities
posted by Zvi Triger
Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?
All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.
The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.
August 31, 2013 at 6:13 pm Tags: gender segregation, Jewish law, public tranportation, ultra-orthodox, women's rights Posted in: Civil Rights, Constitutional Law, Culture, Current Events, Feminism and Gender, Race Print This Post No Comments
The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)
posted by Zvi Triger
Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.
Part II of this post.
August 5, 2013 at 5:15 am Tags: discrimination, homophobia, same sex marriage, sexuality, United States v. Windsor Posted in: Civil Rights, Constitutional Law, Culture, Family Law, Feminism and Gender Print This Post 7 Comments
posted by Frank Pasquale
A few thoughts in the wake of Zimmerman verdict (and related matters):
1) The New Yorker’s Amy Davidson stated last night, “I still don’t understand what Trayvon Martin was supposed to do” once he knew he was menaced. Gary Younge similarly asked, “What version of events is there for that night in which Martin gets away with his life?”
Cord Jefferson, in a way, provides a practical response to that question:
To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.
Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance. He notes that, “Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong.”
posted by Danielle Citron
At Slate, Barry Friedman and Dahlia Lithwick have a provocative new piece entitled “What’s Left? Have Progressives Abandoned Every Cause Save Gay Marriage?” Great read.
posted by UCLA Law Review
Volume 60, Issue 5 (June 2013)
|First Amendment Constraints on Copyright After Golan v. Holder||Neil Weinstock Netanel||1082|
|Intraracial Diversity||Devon W. Carbado||1130|
|When to Overthrow your Government: The Right to Resist in the World’s Constitutions||Ginsburg et al.||1184|
|Interbank Discipline||Kathryn Judge||1262|
|A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement||Nicole M. Howell||1324|
June 30, 2013 at 4:01 am Posted in: Civil Rights, Financial Institutions, First Amendment, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Politics, Race Print This Post No Comments
posted by Babak Siavoshy
The Supreme Court’s decision in Hollingsworth v. Perry, issued today, will have something of a domino effect on the rights of Californians: The Supreme Court dismissed the defendants’ appeal on standing grounds, thereby reinstating a district court ruling that held Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution, thereby reinstating a 2008 California Supreme Court ruling that effectively created a state constitutional right to same-sex marriage.
The Perry Court’s immediate ruling is narrow: Prop 8′s civilian defenders do not have standing to challenge the district court’s invalidation of the law. Any defense of the law on appeal would have to come from California officials, who declined to defend Prop 8 or appeal the district court ruling finding it unconstitutional.
The Supreme Court’s decision effectively reinstates the lower court decision by California District Judge Vaughn Walker, which “declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and ‘directing the official defendants that all persons under their control or supervision’ shall not enforce it.” (See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.)).
The effect of the Supreme Court’s decision in Perry is complicated by this particular twist: California officials enforced Prop 8, but declined to defend it.