Torture and Littering

David Luban

Today the Ninth Circuit Court of Appeals overturned the conviction of Daniel Millis, convicted of littering because he left sealed bottles of drinking water in a desert wildlife refuge. He explained that he left them "along frequently traveled routes for unlawful entrants to the United States." He belongs to a group called "No More Deaths," and the opinion quotes his testimony: "humanitarian aide [sic] is never a crime."

The majority overturned his conviction because a reasonable person might not understand that leaving drinking water for people dying of thirst is littering. The United States countered that the water bottles constitute "garbage" in the sense of the statute. After foraging through some dictionary definitions of "garbage" and "discarded," the majority concludes that the regulation is too ambiguous to enforce in this case.

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.

Posted 9:57 PM by David Luban [link]

The Cost of Habeas?

Jason Mazzone

Virtually every proposal to reduce the workload of federal district court judges focuses on the burden of habeas petitions brought by state prisoners. Today, habeas petitions by state inmates account for one in fourteen of the civil cases filed in federal court. Habeas petitions, which are rarely granted, are commonly said to waste judicial resources. In their groundbreaking study of the costs and benefits of habeas litigation, Joseph Hoffmann and Nancy King conclude that federal habeas review of most non-capital state court cases should simply be abolished. The saved resources, they argue, should be directed to helping states provide better defense to criminal defendants.

I have a different perspective. While I don’t doubt that habeas litigation consumes resources that could be better used in other ways, I don’t view habeas petitions to be as burdensome as they are commonly perceived.
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Posted 6:04 PM by Jason Mazzone [link] (10) comments

A Public Reason Defense of Judicial Review

Guest Blogger

Ronald C. Den Otter

Americans have always had, and probably always will have, ambivalent feelings toward judicial review; they cannot live with it but they cannot live without it. Indeed, there used to be something characteristically American about turning the most divisive political questions --abortion, affirmative action, same-sex marriage, freedom of speech, separation between church and state, and capital punishment-- into legal questions with the hope that courts could answer them. The primary question that I address in my recent book, Judicial Review in an Age of Moral Pluralism, is whether judicial review can be justified in a country like our own that is committed to democratic self-rule. In the past, scholars have tried to defend judicial review by arguing that it makes our political system more democratic. By contrast, I defend judicial review because it ensures that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. I tie this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and describe how judges should decide the most difficult constitutional cases.
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Posted 11:55 AM by Guest Blogger [link] (22) comments

Gay Marriage and the Republican Consolation Prize

Jason Mazzone

Recently, a district court in California held that state’s ban on same-sex marriage unconstitutional. A district court in Boston also held unconstitutional the federal Defense of Marriage Act.

I share Jack’s skepticism about the likelihood of these decisions being upheld on appeal. My own guess is that both decisions will be reversed by the respective circuit courts.

I want to focus here on some broader implications.

President Obama vowed to end “Don’t Ask Don’t Tell,” the Clinton-era compromise on gay and lesbian soldiers serving in the military. But Obama’s window of opportunity for ending DADT is quickly closing. At the end of May, the House voted 234-194 to repeal DADT as part of a military spending bill. Just five Republicans supported the repeal and twenty-six Democrats voted in opposition. The Senate Armed Services Committee has also approved the proposed repeal. But the full Senate, which was expected to consider the repeal measure over the summer, has not yet taken it up and Republicans have threatened a filibuster when and if the Senate does.

With the 2010 congressional election two months away, the chances of repealing DADT before the election occurs are fast diminishing.

If, as expected, Republicans in November gain control of the House and gain seats also in the Senate, repeal of DADT in the next two years is extremely unlikely. Although Americans by a clear majority think gay and lesbian soldiers should be permitted to serve openly, Republicans have no interest in allowing Obama to fulfill his DADT pledge. And even if Republicans were otherwise inclined to vote for repeal at this time, the marriage cases now cast a chill. No Republican member of Congress wants to seem pro-gay when marriage is in the air.

(Dick Cheney, Laura Bush, and other prominent Republicans now publicly support same-sex marriage—easy to do when you no longer answer to the electorate.)

We have, then, a remarkable possibility. Within the next two years, federal appellate courts hold that a ban on same-sex marriage does not violate the Constitution and uphold the Defense of Marriage Act. Obama (who has said he opposes same-sex marriage) loses reelection in 2012. As a consolation prize, Congress repeals DADT and a Republican president signs the repeal into law.
Posted 9:57 PM by Jason Mazzone [link] (61) comments

Al-Bihani: 113 Pages Denying Rehearing (While Basically Granting It)

Steve Vladeck

This morning, the D.C. Circuit (finally) denied the petition for rehearing en banc in Al-Bihani v. Obama, its first post-Boumediene decision on the merits in a Guantanamo habeas case, and one that engendered a fair amount of criticism for its rather desultory treatment of whether international humanitarian law had any bearing on the government's detention authority under the 2001 Authorization for Use of Military Force (the panel said no, even though the government hadn't taken such an extreme view). [I've written before about some of the issues with the decision, and co-authored one of the amicus briefs in support of rehearing.]
Posted 11:11 AM by Steve Vladeck [link] (2) comments

Update on UVa

Sandy Levinson

Readers may recall that Virginia Attorney General Kenneth T. Cuccinelli, II, a rabid right-winger eager to use his office for political advancement, issued draconian "Civil Investigative Demands" to the University of Virginia with regard to the research on global warming of a former professor at UVa who has long since departed for Penn State. The University resisted the demand on both technical and broad constitutional grounds. Today Judge Paul M. Peatross, Jr. of the Sixteenth Judicial Court of Virginia issued a six-page letter completely dismissing the CIDs issued by Cuccinelli on the ground that he shown no objective "reason to believe" that the University in fact possesses any "materials relevant to a false claims law investigation" and that he also did not state "the 'nature of the conduct' with sufficiency to satisfy the requirement of the statute." I.e., the Attorney General is not given power by the statutes of Virginia to enage in what is the equivalent of a sweeping general warrant based on nothing more than his own ideological zeal and belief (even if sincere) that something was amiss. The CIDs were dismissed "in their entirety without prejudice," which means that Cuccinelli can presumably take another bite of the apple if he can come up with plausible evidence supporting his ideological zealotry. At that point, the profound questions involving Prof. Mann's academic freedom (and, even more certainly, the freedom of each and every one person who has communicted with him and comes under the terms of the remarkable CIDs) might well become relevant, though Judge Peatross went out of his way to offer a narrow and basically technical decision. (Among other things, the Virginia AG has no jurisdiction to investigate alleged fraud with regard to federal, as against state, grants.)

This is a good day for civil liberties and academic freedom, though it does remain to be seen whether it really brings the case to an end, given Mr. Cuccinelli's patent zealotry and his disregard for academic autonomy. (Recall that Prof. Mann has been the subject of at least two investigations by his academic peers, both of which found no substance to the allegations brought against him by anti-global warming zealots.)
Posted 4:43 PM by Sandy Levinson [link] (28) comments

Thoughts on Legal Education

Jason Mazzone

There is a lot of talk these days about what law schools teach. There is also a lot of talk about who teaches in law schools. Both conversations center on the relative importance of theory versus practice. Are law schools academic departments of universities that should be staffed with researchers pursuing knowledge? Or are law schools professional schools that should be staffed with practitioners who train students to perform legal work?

These conversations are not new. But they have taken on increased importance in the past few years with the 2007 Carnegie Report calling on law schools to provide more training to their students in practical and ethical skills and with the downturn in hiring of law school graduates.

Most law schools provide a mix of theory and practical skills. And most law schools have some teachers who are academically focused and other teachers who are more practice oriented. (In some schools, this division corresponds to differences in rank and title, with the academics the professors and the practice-oriented teachers called clinical faculty or instructors. In other schools, everyone is a professor.) Virtually all law schools also have lawyers or judges who teach part time as adjuncts; they usually cover the nitty-gritty of legal work.

Those who take a position on what law schools teach and who teaches in law schools typically call for a recalibration of this theory-practice mix. Mostly, like the Carnegie report, the recommendation is for less theory and more practical skills. But some observers think the current balance is fine: legal education, they say, provides a broad education in the law and specific practical skills are learned on the job. (A few observers think law schools should emphasize more not less theory.)

These debates strike me as too narrow. Rather than think in terms of what law schools do and who staffs them, we should think more broadly about the law school and the university.

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Posted 11:12 AM by Jason Mazzone [link] (17) comments

Never Pay a Speeding Ticket Again?

Ian Ayres

Crosspost from Freakonomics:

A couple weeks ago, I became briefly fascinated and somewhat appalled by the appearance of a new Internet business that offered a sort of insurance against speeding tickets. In return for an annual fee of $169, ticketfree.org promised to reimburse you for the costs of up to $500 in moving violations. Its webpage enthused:

• We don’t promise that you won’t get a ticket; we just promise that you won’t have to pay for it.


• Never pay another ticket again. Period!


• Never pay late fees on tickets.


• Never worry about speed traps or radar while driving.


• Never need an expensive ticket lawyer.


• Never have a take a day off work to fight a ticket.

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Posted 10:49 PM by Ian Ayres [link]

Same-sex marriage, Ken Mehlman, and the race against the clock

JB

Former Republican National Committee Chair Ken Mehlman's decision to come out as gay provides a convenient moment to discuss a problem I've been wresting with in thinking about the prospects for success in Gill (the challenge to DOMA) and Perry v. Schwartzenegger (the challenge to California's Proposition 8 ban on same-sex marriage).

Readers of this blog know that I have been skeptical of federal challenges to state marriage laws at this time, arguing that marriage equality advocates are about 10 years away from a good chance of success in the Supreme Court,and that it is better to try to win victories in state legislatures and state courts and change national public opinion.

The problem is that because of Gill and Perry v. Schwarzenegger, we do not have that luxury anymore. These cases--or others like them--will wend their way through the federal courts. (By the way, the Justice Department, to my knowledge, has not yet decided whether to appeal Gill. It has 60 days from August the 18th.)
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Posted 3:12 PM by JB [link]

False Marking in Patent and Copyright Law

Jason Mazzone

Section 292 of the Patent Act provides for a civil penalty for falsely marking a good as patented. It says:

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word “patent” or any word or number importing that the same is patented, for the purpose of deceiving the public ... shall be fined not more than $500 for every such offense.

Section 292 is a whistleblower provision. It allows anybody (without regard to personal injury) to bring a lawsuit and retain half of the collected penalty with the other half going to the United States.

A 2009 decision by the U.S. Court of Appeals greatly increases the incentive to avoid section 292 liability. In Forest Group Inc. v. Bon Tool Co., the Federal Circuit held that each individual article that is falsely marked constitutes an “offense” within the meaning of section 292. Previously, lower courts had grouped multiple articles of the same product together as a single false-marking offense. This meant that the manufacturer of a falsely-marked product faced only a total possible fine of $500, regardless of how many individual articles were wrongly marked as patented. Following the decision in Forest Group, the manufacturer who falsely marks a product as patented can face fines in the millions of dollars, depending on the number of individual articles produced.

There is a lesson here for copyright law.

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Posted 9:00 AM by Jason Mazzone [link] (3) comments

Architecture, Law, and Innovation

Marvin Ammori

Yesterday, I was chatting with a law scholar whose research focuses on innovation. He told me that, on his desk, at the top of his short stack of new books to read, is Barbara van Schewick's celebrated new book, Internet Architecture and Innovation. I wasn't very surprised: it seems everyone interested in Internet law and policy or innovation is talking about the book. Harvard's Larry Lessig recommended it in the New York Times; Cardozo's Susan Crawford, formerly a top White House advisor, recommended it in an op-ed; Brad Burnham, a venture capitalist who was an early investor in Twitter and Flikr, praised it on his blog; and MIT engineering professor David Reed, and co-author of the original end-to-end arguments, endorses the book on its jacket.

So I wanted to flag this book even for those among you who tend not to read the latest book on Internet policy, but who would be interested more broadly in an important book on law, economics, architecture, and innovation.

I have already posted a longish review of the book for a general audience, on my (only sometimes-updated) personal blog. Mainly I explain why general readers should not be scared of an academic book--something about which I needn't worry for law professors and law students.

The framework and arguments of the book have broader applicability to legal thinking, even beyond Internet issues.

First, it's the best example of a "law and architecture" book. A few years ago, Larry Lessig published a paper called "The New Chicago School." The paper (playfully) built on the "Chicago School," a school of legal analysis grounded in economics. Lessig's "new" school proposed four categories of constraints on human behavior--law, economics, norms, and architecture. He developed the importance of the last, architecture, in his seminal book about software and the Internet, called Code. By architectural constraints, Lessig meant "the world as I find it": walls are a constraint on snooping, the weight of large objects is a constraint on stealing. (Of course, economics is also at play; if I had enough money, in theory, I could buy the wall and tear it down, or hire strong thieves. But for most of us, that's not a realistic option.) He discussed how markets and law interact with, and shape, online architecture to yield particular constraints on individuals, or to enable particular liberties. For the Internet, architecture is even more malleable than in the real world; you can add or remove a "wall" to affect snooping with just a few key strokes. We can architect "cyberspace" (in the language of 1999) or the technologies of the Internet to promote certain social values, like free speech, innovation, or privacy. Or we can architect the technologies to undermine those values.

Barbara's book is the best analysis built on an analysis of architecture, economics, and law. She analyzes how the original architecture of the Internet--built according to particular, open design principles--promotes one particular, important value, innovation.

Second, the book is interdisciplinary of necessity, incorporating deep insights from computer engineering (Barbara has a phd in computer science), law (she is a law professor at Stanford), management science, and economics. Since she is expert in all these areas, she can see and make connections that other scholars, focused in one discipline, will overlook. And since she is writing for so many different audiences, her book is fascinatingly informative for all of us who wondered how the Internet actually works.

Finally, her economic analysis of innovation is among the most interesting law and economics analysis I've come across. It rests on the leading research in innovation economics and succeeds in disproving several economic arguments previously considered conventional wisdom to some economists, especially those discussing telecommunications. Her framework clarifies thinking on the one monopoly rent theory as well as assertions on where competition should and should not lead to optimal public interest outcomes--using the example of competition among cable and phone companies, which, she proves, should not ensure an open Internet, despite industry arguments to the contrary.

And the website for her book is here.
Posted 11:19 AM by Marvin Ammori [link] (2) comments

McDonald v. Chicago and Bill of Rights Uniformity

Jason Mazzone

Justice Stevens’s dissenting opinion in McDonald v. Chicago is remarkable for many reasons. This post focuses on Stevens’s argument that provisions of the Bill of Rights need not apply in the same way everywhere. The Justices in the majority did not fully come to terms with Stevens’s claim. Understanding Stevens’s argument and assessing its implications require reading McDonald through the lens of some earlier cases in which Stevens also wrote about Bill of Rights uniformity.

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Posted 9:05 AM by Jason Mazzone [link] (3) comments

Our undocumented heritage

Mary L. Dudziak

Scholars Paul Finkelman, James Anaya and Gabriel J. Chin discuss birthright citizenship on Huffington Post:

Under the Fourteenth Amendment, children born in the United States are citizens, even if their parents are not. Inspired by Arizona's new (and partially suspended) law regulating unauthorized immigration, Senators Mitch McConnell, John Kyl, John McCain, Lindsey Graham, Representative John Boehner, and other Republican leaders have proposed considering amending the Constitution to deny citizenship to children born in the United States but whose parents are undocumented.

As law professors we oppose the proposed change, not only for historical and legal reasons, but also on deeply personal grounds. We are the face of the children of illegal aliens, people who are not just abstractions but parts of the human mosaic of the American nation. As it happens, all three of us are the grandchildren of individuals who entered the United States without authorization. From our perspective, the proposal is unwise.

They go on to tell the stories of the way their grandparents came to the United States. Continue reading here.

I can add to this history. My fraternal grandmother came to the United States from Poland, and later worked for many years in the papers mills in western Massachusetts. When she arrived at Ellis Island, she was a teenager traveling alone. She pretended to be a member of a family arriving legally, and gave a false name. If she had not done that, she most certainly would have been excluded from the country as likely to be unable to support herself. She and my grandfather had four children, all of whom served in the U.S. military. Her grandchildren and great grandchildren include school teachers, a nurse, a veterinarian, a former chef, and even a hydro-geologist. The stories of our families show that the history of "illegal aliens" is an essential part of the story of America.

Share your story.

Cross-posted from the Legal History Blog.
Posted 12:00 PM by Mary L. Dudziak [link] (68) comments

Justice Stevens's Triumph

Jason Mazzone

In the Supreme Court’s 2009 Term, now-retired Justice John Paul Stevens was in the minority more frequently than any other Justice. Yet the 2009 Term also represented the near-triumph of Justice Stevens’s position on the role of the Supreme Court vis a vis the state courts in criminal cases.

Stevens has long argued that in exercising its power to control its docket the Court should not review criminal cases in which the only alleged error is that the state court granted the defendant stronger protection than the Court’s own precedents require. With two exceptions, the 2009 Term was consistent with Stevens’s approach.
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Posted 11:45 AM by Jason Mazzone [link] (2) comments

"Structural problems need structural solutions"

Sandy Levinson

This is Pimco CEO Mohamed El-Arian, quoted by Tom Friedman in this morning's column in the Times. I will forego any extended comment, other than to make the entirely predictable (for me) point that Friedman (and almost everyone else) almost wilfully ignores the extent to which the US Constitution is one of the most formidable "structural problems" that face us today. Thus he concludes his column with what can only be described as the sheer fantasy of "the presidentn tak[ing] America's labor, business, and Congressional leadership up to Camp David and not com[ing] down until a grand bargain for taxes, trade promotion, energy, stimulus, and budget cutting that offers the market some certainty that we are moving together--not just on a bailout but on an economic rebirth for the 21st century. 'Far chance,' you say [indeed!!]. When then I say get ready for a long phase of stubborn unemployment and anemic growth." So the question is this: Why is Friedman, a very smart guy, willing to make a fool of himself by offering such a ludicrously fanciful suggestion (which, among other things, simply wishes away the existence of political parties and the rational calculations that party leaders make about what best serves their own interests--which, for Republicans, is sure as hell not giving President Obama the kind of political victory that Friedman is suggesting) even as he utterly fails, week after week and month after month, even to hint that something is grievously wrong with our basic constitutional framework. EJ Dionne is willing to call for the abolition of the Senate (something I don't actually favor, though I'd prefer it to continuing the present Senate). Tom Friedman, along with the rest of the Times crew, including the Nobelist Paul Krugman, would never find the purloined letter because it is right in front of them (and, of course, it's so unlikely, as even I recognize, that anything can be done about that particular 800-pound gorilla).
Posted 11:11 AM by Sandy Levinson [link] (21) comments

The Roberts Court and the State Courts

Jason Mazzone

Thank you to Jack for inviting me to blog here. I teach Constitutional Law, American Legal History, and Intellectual Property Law, and I will mostly post on topics in those areas.

For the past three years, I have been working on several interrelated projects examining the role of state courts in applying federal law. Since Justice Brennan’s 1977 Harvard Law Review article on “State Constitutions and the Protection of Individual Rights,” there has been a lot of academic attention to state court interpretations of state constitutional provisions. How state courts apply federal constitutional and statutory law has been less studied. I will discuss some of my past work on this issue in future posts.

My current project involves research on patterns of Supreme Court review of state court decisions. I am compiling detailed information on such things as how many cases from the state courts the Supreme Court has decided since 1790; how reversal rates have varied over time; which kinds of federal issues the Court has reviewed and how the types of cases have changed over time; which state courts have been reviewed most often; and the Court’s voting patterns in deciding cases on review from the state courts.

With the Roberts Court now at five years there is enough data to draw some conclusions and make some predictions about its orientation towards state courts. The bottom line is that compared to its predecessors, the Roberts Court is reviewing fewer cases from the state courts but reversing a higher percentage of them. In other words, the Roberts Court is intervening only to correct the most serious errors by the state courts.
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Posted 2:30 PM by Jason Mazzone [link] (1) comments

"reinventing government"

Sandy Levinson

Jonathan Mahler has an interesting profile of New York Democratic gubernatorial candidate Andrew Cuomo in this past Sunday's New York Times Magazine. Apparently one of his mantras is the need to "reinvent government," a theme that was, of course, very popular during the Clinton Administration and articulated especially by Al Gore. But the 800-pound gorillas, for anyone who takes the notion seriously, are obviously the respective constitutions of the United States and New York. How can one have a serious conversation about "reinventing government" without broaching the desirability of serious constitutional change? Rick Lazio, the Republican candidate, had actually tossed out the idea of eliminating the New York Senate, which would, obviousy, require a major amendment of the New York constitution. Since it is literally unthinkable that members of the New York Senate would vote themsevlves out of cushy jobs, it would also require a constitutional convention, which the New York Constitution (unlike the United States Constitution) allows the electorate to call. (There is no procedure in New York for initiative and referendum.) The Times, unfortunately, is opposed to such a convention, even as it has called on the electorate in effect to vote "all the bums" out of the Senate and start afresh. The head of New York's "Common Cause" has a good letter opposing the Times editorial.

Unfortunately, Lazio (a long-shot in any case) has chosen to demagogue the Lower Manhattan mosque rather than press what "reinventing government" might really require. That's a shame.
And, of course, even as polls show increasing contempt for Congress (and for both parties), no "serious person" suggests that the fault may be less in the personal defects of Mitch McConnell than in a constitutional system (including the provision that allows the Senate seeming carte blanche to pass its own rules, including the filibuster) that allows McConnell, who is behaving entirely as "rational-choice" political scientists would predict, to obstruct, obstruct, obstruct.

Indeed, given that there is a possibility (though I think slim) that Republicans could get the Senate back in November (or, more precisely, January), this is the pefect time for the President of the Senate, Joe Biden, to announce that he will rule, when the new Senate convenes, that the Senate is not a continuing body and can therefore change its filibuster rule by a simply majority vote. So if the Republicans benefit, so be it. (So long as the filibuster rule is in place, there's certainly no reason for the Democrats to engage in "unilateral disarmament," should they be in the minority. The point is to get rid of it--or at least significantly modify it--for both parties.)

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Posted 11:40 AM by Sandy Levinson [link] (5) comments

"nothing that would stand up in court"

Sandy Levinson

I could not help notice a line in today's New York Times full-page editorial about the war in Afghanistan referring to allegations that President Karzai's brother is up to his neck in the drug trade. According to the Times, the response from Washington is that there is "nothing that would stand up in court," so, presumably, we are not bringing great pressure on President Karzai to do something (drastic) about his brother. What is ironic, of course, is that the United States is currently trying at Guantanamo a now-23-year-old for an alleged killing of a U.S soldier when he was 15, before a military court and apparently using a "confession" obtained under conditions that would instantly get it thrown our of a "real court" in the U.S. The Times article, incidentally, notes that this is the first military trial for acts committed by an under-18 "soldier" since World War II.

It wouldn't shock me if the then-15-year old actually did the act alleged, though one could still get into a sustained conversation about the standards of liability imposed on "child soldiers" (and whether, for example, eight years in Guantanamo might be "'suffering enough" (to paraphrase Gerald Ford's famous phrase as he pardoned Richard Nixon) re punishment). But, frankly, it would surprise me even less if President Karzai's brother is indeed the drug-dealer that he is widely reported to be. But for him, the Administration (or at least some anonymous Washington insider not named by the Times) is quite scrupulous in looking for evidence that "would stand up in court.' "Equal justice under law" indeed.
Posted 12:30 PM by Sandy Levinson [link] (69) comments

Charter Schools and Integration

Martha Minow

After decades of struggles over the legality and political viability publicly-funded vouchers to pay for private, including religious, schooling, the contemporary school reform embracing parental choice is charter schools. As the states (and some cities) authorize the distribution of public funds to groups of teachers, parents, community members, nonprofit organizations or businesses to design and run schools, the hope of better schooling is coupled with the possibility of self-segregation. Studies indicate that charter schools generate either more or less racial and ethnic diversity than neighborhood schools.
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Posted 9:22 AM by Martha Minow [link]

Defending The Indefensible: The Defense Of Marriage Act

Guest Blogger

Alan B. Morrison

Much has been written about two recent decisions, one striking down the section of the Defense of Marriage Act (DOMA) that denies federal benefits to same sex couples, who are legally married under the laws of their state, that are available to opposite sex married couples (Gill v. OPM), and the other invalidating California Prop 8’s elimination of the right of same sex couples to marry, which the California Supreme Court had upheld just months before (Perry v. Schwarzenegger). In both cases the federal court found that the distinction between same sex couples and opposite sex couples in the context of marriage to be wholly irrational. Although in some respects the cases raise similar legal issues, the actual operation of DOMA not only does not advance any legitimate interest in its discrimination against same sex married couples, but it actually undermines two important federal policies.
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Posted 9:08 AM by Guest Blogger [link]

Social science and equality

Martha Minow

Should social science influence how we construe equality protections under the Constitution, statutes and regulations Social science?

Social science studies of single-sex schools point in competing directions. The attitudes and cultural presuppositions of the researchers permeate their questions and interpretations. Gender gaps in achievement do not begin to approach the gap in school performance between economically advantaged and economically disadvantaged students. Social science studies of race and schools has a longer history.
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Posted 8:44 AM by Martha Minow [link]