• Archive for February, 2013

    Schmidt — Gay Marriage and the Supreme Court: Using the Past to Predict the Future

    by  • February 28, 2013 • Faculty Commentary • 0 Comments

    Originally posted Feb. 26 at the Legal History Blog, to which Professor Schmidt guest-contributes regularly. This is the second post in which Professor Schmidt discusses From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, a new book by legal historian Michael Klarman.

    By Christopher Schmidt


    In my last post I discussed Michael Klarman’s recently published book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford, 2012). I described Klarman’s history of the gay rights movement and his consideration of what this history may tell us about the phenomenon of political backlash to court decisions. In this post I turn to the last chapter of From the Closet to the Altar, in which Klarman offers some predictions about what we might expect with regard to gay marriage debate, including the possibility of the Supreme Court attempting to resolve the issue.

    Klarman’s one big prediction is hard to argue with: “If any social change seems inevitable, it is the growing acceptance of gay equality generally and gay marriage specifically.” This is a trend driven both by
    demographics (support for gay rights is strongest among youth) and by cultural changes. The trend is also driven by the self-reinforcing nature of gay rights advances. As Klarman observes, “the greatest increases in support for gay marriage in the last fifteen years have come in the states that already were the most supportive of gay rights.” Societal acceptance of homosexuality, once it begins to take hold, has a tendency to gain momentum.

    What role is the Supreme Court likely to play in this story? Klarman’s book went to press before the Supreme Court agreed to hear the cases involving the federal Defense of Marriage Act and California’s Proposition 8,
    the state referendum banning same sex-marriage that both a federal district court and the Ninth Circuit have ruled unconstitutional. (The justices will hear oral arguments next month.) But Klarman does offer some “informed speculation” on how the Court might deal with the issue.

    On DOMA, he writes: “One can easily imagine a Court composed of liberal justices who probably sympathize with gay marriage and conservative justices who believe in states’ rights agreeing to invalidate DOMA on the
    ground that the federal government should not be involved in defining marriage.”

    What about a Supreme Court ruling striking down, on constitutional grounds, state laws limiting marriage to the union of a man and a woman? Viewed in the long term, this, according to Klarman, is an easy issue to predict. “Once public opinion has shifted overwhelmingly in favor and many more states have enacted gay marriage, the Court will constitutionalize the emerging consensus and suppress resisting outliers. That is simply how constitutional law works in the United States.”

    But even if we assume that the Court will be responsive to a durable cultural and political transformation, critical questions about the timing and scope of this response remain. This is where the prediction game becomes far trickier.

    On the Supreme Court today, there are no sure-fire votes in favor of a sweeping ruling finding a constitutional right to gay marriage. The liberal justices who are most likely to sympathize with the cause of marriage
    equality will surely be concerned about the risk of having the Court push too far ahead of society. (This was the reason, for example, the Court delayed striking down prohibitions on interracial marriages for so long—Loving v. Virginia (1967) came thirteen years after Brown.) Klarman notes that Justice Ginsburg has criticized Roe v. Wade for doing just this. But with public opinion moving so clearly in one direction, and with a steady stream of new legislative and judicial victories for gay marriage, it is simply hard to predict when the liberal justices will feel the conditions are right for the Court to intervene.

    Then we have the enigma of Justice Kennedy. Assuming the liberal wing of the Court lines up in favor of a broad pro-gay marriage ruling, then, in all likelihood, Kennedy (yet again) will become the swing vote.
    What might he do in such a situation? Kennedy “has often taken dominant national norms, converted them into constitutional mandates, and then suppressed outlier state practices,” Klarman writes. His major death penalty decisions and Lawrence v. Texas (2003) fit in this category. This approach would indicate that a ruling locating a right to gay marriage in the Constitution is still some ways off. Although opinion polls recently crossed the fifty-percent threshold in favor of gay marriage, the dominant legal rule in the nation still prohibits gay marriage. Yet Kennedy has also distinguished himself as particularly willing to lead the Court when it comes to issues of gay rights. He was, after all, the author of the pro-gay rights decisions in Romer v. Evans (1996) and Lawrence.

    Although at this point the smart money surely is still on the Court refusing to recognize gay marriage as constitutionally required, Klarman offers a particular thought-provoking suggestion about the role that history—and a justice’s sense of historical legacy—might play in pressing the Court to take the step that in the long run seems so inevitable. “What justice,” he asks, “would not be tempted to author the opinion that within a few short years likely would become known as the Brown v. Board of the gay rights movement? Justice Kennedy would have the option of writing that opinion if he wished to do so.”

    And so we wait and see.

    Schmidt — Gay Marriage, the Courts, and the Lessons of History

    by  • February 28, 2013 • Faculty Commentary • 0 Comments

    Originally posted Feb. 24 at the Legal History Blog, to which Professor Schmidt guest-contributes regularly. In this post, Professor Schmidt discusses From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, a new book by legal historian Michael Klarman.

    By Christopher Schmidt


    The cause of gay marriage has made remarkable breakthroughs recently. There were the November victories at the polls: Maryland and Washington voters ratified legislation allowing same-sex marriage, Maine approved a ballot initiative allowing same-sex marriage, and Minnesota became the first state to reject a ballot initiative to constitutionally prohibit same-sex marriage. There was President Obama’s embrace of the cause in his inaugural address, where, with his memorable reference to “Seneca Falls, and Selma, and Stonewall,” he framed gay rights as the necessary next step of the struggle for equality. And now we are looking at a Supreme Court poised to consider the issue in a pair of cases scheduled for argument in March.

    Of course these historic developments are still unfolding, and they are sure to occupy historians for generations to come. While we wait to see how all this will play out and look forward to the historical assessments still to be written, what insights might legal historians have to offer about the struggle for gay rights thus far? How has this struggle fit into existing models of law, the courts, and social change, which have generally relied upon the struggles for racial and gender equality as their touchstones?Fortunately, Michael Klarman, one of the leading legal historians of our day, has written a fantastic new book that gives us much information and many provocative insights on the battle for marriage equality, the courts, and possible lessons of history.

    The contributions of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage
    (Oxford, 2012), can be broken down (with some simplification) into three categories: history, theory, and prediction. In this post I will explore the first two; in my next post I will discuss Klarman’s thoughts about how the Supreme Court will likely deal with gay marriage.

    Most of From the Closet to the Altar is comprised of a history of the gay rights movement, from the 1950s to today, with a focus on the courts and the struggle for marriage rights. Klarman charts how the issue of gay marriage, which was far down the priority list for most gay activists in the early stages of the movement, eventually emerged as a viable issue—today even an inevitable one. He gives particular attention to the effects of judicial interventions, and the counter-mobilization responses of opponents of gay rights. Klarman’s engaging, fast-paced survey of the gay rights movement is filled with insights and information. It is an invaluable resource for anyone looking for historical material to place current events into proper context.

    A second contribution of the book is more theoretical. Following the eight-chapter history of the struggle for gay rights, Klarman takes two chapters to present observations about the interplay between the courts and social change, using the history of gay rights and same-sex marriage as his primary case study. The still unfolding history of the gay rights movement generally confirms for Klarman the conclusions of his previous historical scholarship. The two overriding themes of his scholarship feature prominently in this new book: an assumption of judicial majoritarianism (courts rarely stray far from dominant public opinion); and an emphasis on what he describes in From the Closet to the Altar as the “unexpected, wide-ranging, and conflicting” consequences of court decisions.

    The consequence of court rulings that is of central concern for Klarman is the phenomenon of political backlash. He is well known for his argument that the most significant effect of Brown v. Board of Education was not in inspiring civil rights activists or in desegregating schools, but the newly energized white segregationist movement. This white segregationist backlash created its own backlash, however, as their hardline tactics (fire hoses, police dogs, standing in the schoolhouse door) ultimately moved white northern opinion toward more aggressive civil rights policy. Politically significant backlash effects, Klarman notes, can also be found in response to the Supreme Court’s rulings in Miranda v. Arizona (1966), Furman v. Georgia (1972), and Roe v. Wade (1973).

    The problem of political backlash to contentious court decisions is a central theme in From the Closet to the Altar. Reading through the history of the gay rights movement, Klarman identifies a recurrent two-steps-forward, one-step-back dynamic. Every victory for the movement seems to spur a resurgence of its opponents. After the Hawaii supreme court ruled in Baehr v. Lewin (1993) that a law limiting marriage to heterosexual unions constituted sex discrimination, the Hawaii legislature promptly and overwhelmingly passed a law defining marriage as the union of a man and a woman, numerous states easily passed laws refusing to recognize gay marriages from other states, and eventually Congress weighed in with the Defense of Marriage Act in 1996. After the Massachusetts supreme court found a right to same-sex marriage in its state constitution in the Goodridge decision (2003), conservatives latched onto the issue for political gain in the 2004 elections and a slew of states passed constitutional amendments limiting marriage to unions between a man and a woman. The general trend, Klarman emphasizes, is clearly in the direction of increased recognition of gay rights, but the path has been anything but steady.

    The history of the struggle for gay rights offers Klarman an opportunity to further explore, refine, and defend his backlash thesis (i.e., the argument that court decisions intended to advance a cause often spark political opposition that create new obstacles to that cause). In particular, Klarman considers the tension between backlash and his general observation that courts rarely step outside the confines of mainstream public opinion. Why is backlash such a recurrent phenomenon if the courts are basically majoritarian institutions? To this important question, Klarman offers several responses. He notes that while judges are responsive to the dominant norms of society, they are more insulated from public opinion than legislators, which means that judges may have more leeway to go against mainstream opinion and also that they are more likely to misread public opinion. Judges are more susceptible to elitist skews (they tend to be more responsive to those issues—including gay rights—that poll well among the better educated and wealthier). The law, in the form of judicial and constitutional norms, can, at times, increase the likelihood of politically unpopular rulings. Furthermore, even if public opinion supports a ruling, opponents of that ruling may be more intensely committed than its supporters and more able to exploit the ruling for political gain—key ingredients for effective oppositional mobilization. There is also the role of regional differences in support for an issue, which can concentrate and amplify both perceived support for an issue and oppositional efforts. All of these factors help to explain how the courts can be basically majoritarian institutions while also, with some regularity, issue rulings that inspire political backlash. In the struggle for gay marriage, all these factors are on display.

    In my next post, I will turn to the provocative last chapter of From the Closet to the Altar, entitled “Looking to the Future: The Inevitability of Gay Marriage.” Klarman here offers some predictions about what the Supreme Court is likely to do with a constitutional claim for marriage equality.

    Chicago-Kent Research Paper Series No. 5.2

    by  • February 26, 2013 • Faculty Scholarship • 0 Comments

    The Chicago-Kent Research Paper Series (RPS) is an SSRN ejournal publication, distributed monthly, that highlights new abstracts, works in progress, and published articles by Chicago-Kent faculty.

    The latest edition of the RPS was distributed today. This edition includes the following articles:

    – Well-Being Analysis vs. Cost-Benefit Analysis, by Chris Buccafusco (with J. Bronsteen and J. Masur)

    – Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic, by Valerie Gutmann Koch (with B. Roxland)

    Two Models of Interest Arbitration, by Martin Malin

    Copyright-Exempt Nonprofits: A Simple Proposal to Spur Innovation, by Edward Lee

    Click here to see the Series’ abstract page and to subscribe to the ejournal.

    Cho on the WTO and Copyright Piracy at HuffPost

    by  • February 21, 2013 • Faculty Commentary, Faculty Scholarship • 0 Comments

    Click here to read “The WTO and Copyright Piracy,” a recent article written by Professor Sungjoon Cho and trade policy analyst Simon Lester (Cato Institute) for the Huffington Post. The article centers around a recent high-profile trade dispute between Antigua and the U.S and offers a pointed analysis of the WTO’s role in mediating disputes.

    For more of Professor Cho’s scholarship on the WTO, visit his Bepress page here.

    New Posts at The Walters Way

    by  • February 20, 2013 • Faculty Commentary • 0 Comments

    Professor Adrian Walters has posted two new entries on “reflective practice” and contract drafting and interpretation at his blog, The Walters Way. Read part 1 (from Feb. 10) here and part 2 (from Feb. 18) here, both of which seek to help law students begin to “do” as well as “think” law. Follow the conversation in the comments section of part 2.

    Marder Quoted in NY Times

    by  • February 19, 2013 • Faculty in the News, Faculty Scholarship • 0 Comments

    Professor Nancy Marder was quoted in a Feb. 18th New York Times story on video coverage in the Supreme Court (“Bucking a Trend, Supreme Court Justices Reject Video Coverage” by Adam Liptak). The article notes the fact that, “in the United States, cameras are commonplace in state trial and appeals courts, and the lower federal courts have experimented with them. Only in the Supreme Court is there categorical resistance.” In other countries, the reverse is often true: for example, Canada’s Supreme Court utilizes cameras to broadcast its arguments, but the Canadian trial courts have mostly disallowed the use of cameras in their hearings.

    The story cited Professor Marder’s recent article, The Conundrum of Cameras in the Courtroom (44 Ariz. St. L.J. 1489 (2013)), as an example of recent law scholarship seeking “to make sense of the gaps between the American and international approaches” to having cameras in the courtoom. Professor Marder said that “most countries do not allow cameras in their courtrooms” and that “cameras in federal courtrooms will do more harm than good at this time.” She also voiced her concern about our video-centric culture, in which “everything becomes entertainment, focusing on the gaffe.”

    Read the rest of the story here or download Professor Marder’s article from SSRN here.

    Lee on Copyright-Exempt Nonprofits

    by  • February 18, 2013 • Faculty Scholarship • 0 Comments

    Professor Edward Lee has uploaded a new working paper to SSRN titled Copyright-Exempt Nonprofits: A Simple Proposal to Spur Innovation. In the article, Professor Lee proposes a new way to deal with “the recurring problem created by new speech technologies that disrupt copyright law.” Read the abstract below:

    New types of social networks have recently emerged that have facilitated the growth of a different kind of user-generated content: curation. The user finds various content from the Internet and then organizes or “curates” the content in a social network platform in a way that better serves the user’s purpose. For example, on Pinterest, users can “pin” content from the web onto their virtual “pinboards” that have topical categories of the users’ choice. The content typically involves a photograph (in reduced size) from the original web page that is then displayed on the user’s pinboard. Clicking on the photograph displays the actual photograph (or a copy of it), but displayed on the Pinterest website, with attribution and a link to the original website. In this way, the user is able to organize content from the web visually by the user’s own categories, such as favorite recipes, yoga instruction, furniture to buy, or places to travel.

    In the background of Internet curation lurks copyright law, waiting to rear its proverbial head. The kind of activity Pinterest facilitates may constitute copyright infringement, although at least an arguable defense based on fair use or the DMCA safe harbors exists. If a lawsuit is filed, an adverse decision against the site could put in jeopardy this emerging practice of content curation — quashing it generally.

    This Article offers a way for Congress to address, more generally, the recurring problem created by new speech technologies that disrupt copyright law. The proposal is for Congress to enact a copyright exemption for qualifying 501(c)(3) “charitable” non-profit entities.
 These entities will be “copyright exempt” for a limited purpose to develop and deploy new kinds of Internet speech technologies free for the public’s use. Under the proposed Nonprofit Internet Copyright Exemption (NICE) Act, such nonprofits and their users will enjoy a copyright exemption for noncommercial activity involving user-generated content, including Internet curation.

    Download the article from SSRN here.

    Buccafusco to Speak at Duke Law Symposium

    by  • February 15, 2013 • Faculty Scholarship, Faculty Workshops/ Conferences • 0 Comments

    Professor Christopher Buccafusco will speak today at Duke Law Journal’s 43rd Annual Administrative Law Symposium. This year’s symposium focuses on the role of happiness and well-being in administrative law, a topic on which Professor Buccafusco has written extensively. He will present a forthcoming article, Well-Being Analysis vs. Cost-Benefit Analysis, with coauthors John Bronsteen (Loyola Univ. Chicago School of Law) and Jonathan Masur (University of Chicago Law).

    Click here for more information on the symposium, including a full list of presenters.

    View the live webcast of the symposium here.

    Malin on Interest Arbitration

    by  • February 14, 2013 • Faculty Scholarship • 0 Comments

    Professor Martin Malin has uploaded a new article to SSRN titled Two Models of Interest Arbitration (28 Ohio State Journal on Dispute Resolution 145, (2013)). Read the abstract below.

    Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer arbitration where the arbitrator must award one party’s final offer, either on a package or an issue-by-issue basis, and analyze each approach’s effect on the chilling and narcotic effects.

    This article focuses on another undesirable characteristic of interest arbitration – its ability to allow union and employer leaders to avoid accountability to their constituents. Using data from 2008-2012, the article finds support that, at least in hard times, parties negotiating in a right-to-strike legal regime tend to take responsibility for making the difficult decisions necessary to respond to the economic environment while parties negotiating under an interest arbitration legal regime are more likely to arbitrate and push responsibility off onto the arbitrator. The article contrasts legal regimes which approach interest arbitration as an extension of the collective bargaining process with those which approach interest arbitration as a quasi-judicial adjudication. It finds that the latter approach exacerbates the tendency of union and employer leaders to use interest arbitration as a means of avoiding accountability to their constituents.

    Download the article from SSRN here.