The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Commentary, we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may have the undesirable affect of undoing the carefully laid plans of the spouses. We conclude that courts and legislatures have by no means seen the end of the gay marriage debate. Rather, a host of unforeseen collateral issues lies on the horizon.
Category: Commentaries
The Right to a Public Trial and Closing the Courtroom to Disruptive Spectators
The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Like many constitutional rights, however, the right to a public trial is not absolute. Courtrooms may be closed to the public in some situations. In Waller v. Georgia, the Supreme Court set forth the test trial courts should apply to determine whether a courtroom closure is appropriate. However, some courts, led by the Second Circuit’s per curiam decision in Cosentino v. Kelly, have declined to apply the Waller test to closures ordered for the purpose of excluding “disruptive” audience members in the courtroom.
The exception of these “disruptive” courtroom closures from the Waller test is unnecessary and unsupported for several reasons. First, nothing in Waller or the Court’s subsequent right to a public trial case, Presley v. Georgia, indicates that the test applies in only limited circumstances. Second, cases declining to apply Waller’s test in these instances do not adequately explain why they believe the test has an exception at all. The Waller test properly balances Sixth Amendment values against the need for decorum and accounts for the serious nature of courtroom closures. Finally, the Waller test is easily administered by a trial court in effecting a courtroom closure, including those courtroom closures that exclude disruptive spectators. This anomaly in the rules governing courtroom closures should be eliminated.
Young v. United Parcel Service, Inc.: McDonnell Douglas to the Rescue?
The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer’s failure to make accommodations for the pregnant employee when the employer makes accommodations for other disabled employees. Rather than reaching this result by interpreting the statute to require reasonable accommodations, however, the Court held that plaintiffs with “indirect evidence” of discrimination may prove their claim using the pretext analysis developed by the Court in McDonnell Douglas Corp. v. Green. Under this analysis, the Court instructed that, after the first two stages of the analysis, a plaintiff could attempt to prove that the employer’s legitimate, nondiscriminatory reason for denying an accommodation for a pregnant employee is pretextual, and this could be proven by demonstrating the significant and unjustified burden the employer’s nonaccommodation policy imposes on pregnant employees. Although it seems that the Court resorted to McDonnell Douglas as a compromise to fashion a majority opinion, this essay contends that invocation of the McDonnell Douglas analysis was neither necessary nor prudent. There are two likely ramifications of the Court’s use of the McDonnell Douglas analysis. The first is that the Young opinion is likely to resurrect the division of intentional discrimination claims between those based on direct evidence and those based on circumstantial evidence, with the claims in those two categories being analyzed differently. That is a distinction that the Court rejected in 2003 in Desert Palace, Inc. v. Costa. Second, the Court’s resort to the McDonnell Douglas analysis refortifies a proof framework which arguably should not have survived the Desert Palace decision and which has constrained the robust development of employment discrimination law by forcing evidence in most cases into proxy questions or categories that have only a tangential relationship to the ultimate issue of discrimination. Too many claims in employment discrimination law are forced into the McDonnell Douglas analysis, which often serves to obscure the actual issues presented. Neither of the foregoing potential ramifications is a good development for employment discrimination law. Young v. UPS could—and should—have been resolved without resort to McDonnell Douglas.
A Taxonomy of Discretion: Refining the Legality Debate About Obama’s Executive Actions on Immigration
With immigration reform stymied in Congress, broad executive action has been President Obama’s signature contribution to American immigration policy. These measures have drawn allegations that the president is refusing to faithfully execute the law. Because backers of executive action have focused on precedents from previous administrations, their arguments imply that there is nothing substantively new about President Obama’s actions. As a result, the legal debate about the scope of the president’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies. This essay aims to add new focus to the debate about President Obama’s immigration policies by defining five distinct types of presidential discretion, identifying the types that have clear legal foundations, and positing that at least two types of discretion used by the Obama administration take executive action into uncharted territory.
Epilogue: Moral Panics and Body Cameras
This brief follow-up to Moral Panics and Body Cameras comments on the weeks after that essay was published and what those events show about the efficacy of body cameras and video evidence as a response to police-public conflicts.
Moral Panics and Body Cameras
This Commentary uses the lens of “moral panics” to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.
Hobby Lobby and the Zero-Sum Game
Completing the Picture of Uncertain Patent Scope
Breaking Bad? Too-Big-To-Fail Banks Not Guilty As Not Charged
Troll Storms and Tort Liability for Speech Urging Action by Others: A First Amendment Analysis and An Initial Step Toward A Federal Rule
This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected.
In examining the possibility of vicarious tort liability, this Commentary reviews the U.S. Supreme Court’s “authorized, directed, or ratified” test for vicarious liability, which was established more than thirty-five years ago in the pre-Internet-era case of NAACP v. Claiborne Hardware Co. The Commentary concludes by proposing a framework for vicarious liability when speakers urge action that results in others’ tortious conduct.
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