In November 2012, California voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act, known as ―Measure B. The law requires producers of erotic adult films to overcome financial hurdles and complete educational training to secure filming permits and also mandates the use of condoms during the production of adult films. If a movie‘s producers shoot a scene involving anal or vaginal intercourse without a condom, they will lose their Measure B permits, face fines, and be forbidden from engaging in any future filming for an unspecified period. Although the purpose of the law is laudable—to minimize the spread of sexually transmitted infections resulting from the production of adult films in the County of Los Angeles—the regulation functions as an outright ban on the filming of unprotected, or bareback, sex scenes and is an impermissible infringement on protected speech.
Since Measure B‘s strict requirements do not leave open alternative channels of communication, the law will fail constitutional scrutiny under a content-neutral standard. This conclusion, however, may be difficult to reach if the value of barebacking as speech and the alternative means of expression are only evaluated through a traditional heteronormative lens. Queer theory offers a distinctive platform from which to challenge the law, and a careful analysis of bareback sex within the gay community brings the importance of this speech into sharper relief.
Barebacking constitutes a unique identity within the gay community, namely hypermasculinity. Forcing a gay porn star to cover his penis during filming is tantamount to sheathing his sword, blunting his masculinity, power, and speech.
The term ―judicial activism has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things. It most commonly applies to judicial decisions that exceed judicial authority on issues that otherwise would be decided by the legislature and is most frequently invoked when some aspect of the bill of rights is litigated.
Political leaders in both parties have condemned judicial activism, particularly where it threatens their party‘s ideology. For example, in 1968 Richard Nixon stated, “I want men on the Supreme Court who are strict constructionists, men that interpret the law and don‘t try to make the law.” In 1986 Ronald Reagan said that America has “had too many examples in recent years of courts and judges legislating.” Yet Democratic leaders can feel just as much concern for judicial activism as their Republican counterparts. Barack Obama expressed fear in 2012 that a conservative Supreme Court might disagree with the new healthcare law.
This Article asserts that judicial activism does not have to be inevitable and can be overcome by way of structural change to the Constitution. Indeed, some of the founding fathers had just such a perspective. They preferred legislative oversight of rights issues, rather than risking judicial activism by leaving such matters to the judiciary.
In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It is rather to ground that ongoing discussion in a richer account of the role that substantive legal policy can and should play in defining the role of the judge, constraining judicial options in some cases, and legitimizing judicial initiative in others.
What is the role of the judge in aggregate litigation? That was the question posed to Judge Alvin Hellerstein and several panelists, including myself, at the 2012 Symposium of the Institute of Law and Economic Policy. Judge Hellerstein, who has overseen the litigation arising out of both the September 11 terrorist attacks and the subsequent rescue efforts and clean-up, framed the question more provocatively and purposively: “How do you bring justice to ten thousand cases?”
The justice that Judge Hellerstein brought to ten thousand cases in the September 11 clean-up litigation took the form of a massive settlement. Responders who participated in recovery and debris-removal efforts and who suffered respiratory diseases and other ailments had sued New York City and other defendants, claiming that the city had failed to provide adequate protective gear and supervision. Rather than a class action, this was a mass non-class aggregate settlement. Plaintiffs’ liaison counsel negotiated the deal with New York City after several individual cases had been scheduled for trial but before any case had been tried. The resolution was accomplished on a non-class basis because the court had earlier denied class certification on the grounds that the claims were too individualized for class action treatment. In the denial of class certification and the subsequent accomplishment of a mass non-class settlement, the outcome was typical of the past decade’s major mass tort resolutions.
But the signal moment of the September 11 clean-up litigation was not typical at all. In March 2010, Judge Hellerstein “rejected” a settlement that the attorneys had negotiated. He sent the parties back to the bargaining table to make the settlement richer. Sure enough, several months later the lawyers returned with a settlement proposal that increased plaintiffs’ compensation, and this time the judge “approved” it. To many observers, there may be something quite appealing about the court’s intervention. The judge helped World Trade Center responders and clean-up workers obtain greater compensation, and the defendant was willing to pay the higher amount rather than go to trial.
What I wonder is where the judge got the power to “approve” or “reject” the settlement. I understand, of course, why a judge might wish he had that power. Overseeing a case gives a judge a strong investment in the outcome as well as a sense of what outcome might be just. But settlement is not adjudication. A settlement is a contract in which a claimant agrees to release a claim in exchange for something offered by the defendant. There are special circumstances that require judicial approval of negotiated resolutions; these circumstances turn settlements into something akin to adjudication. But the September 11 clean-up litigation deal was not a class action settlement. It was not a consent judgment in which the parties sought the court’s ongoing supervision. It was not a settlement by minors or others legally incompetent to make their own decisions. Nor was it a shareholder derivative action or an action in which a receiver had been appointed. Rather, it was a settlement of individual claims, albeit in the context of a complex mass dispute.
Judge Hellerstein and his special masters—Professors James Henderson and Aaron Twerski—have described in a detailed law review article the challenges they faced in bringing ten thousand claims to resolution. Their reflections provide an apt occasion for considering the role of the judge in bringing a mass dispute to a negotiated resolution.
Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law-review articles to probe the nature of legal knowledge co-production and de facto peer review in legal literature. Using a survey of authors and editors and a textual analysis of approximately thirty thousand law-review articles from 2008 to 2017, we examined the nature of knowledge co-production and peer review in U.S. legal academia. Our results are consistent with the idea that substantial peer-review-like vetting occurs in the field. We also found evidence that both authors and editors use the information in acknowledgment footnotes as a factor in article submission and selection. Further, the characteristics of acknowledgment footnotes in articles in high-ranking law reviews differ dramatically from those in low-ranking law reviews in ways that are not simply due to differences in article quality. Finally, there are problematic gender differences in who is being acknowledged. We propose some modest changes to current practices that would help maximize transparency and minimize bias in legal scholarly networks and law-review article selection.
In April 2010, President Barack Obama nominated Edward DuMont to the United States Court of Appeals for the Federal Circuit, while more than one and a half years later the nominee withdrew. The aspirant possesses impeccable credentials, having argued eighteen Supreme Court matters and captured a unanimous well qualified American Bar Association (ABA) rating. Despite his immense capabilities, the prospect never received a hearing. Because Edward DuMont is an exceptionally competent uncontroversial individual and would have been the first out gay court of appeals judge, he merited expeditious review. The nominee’s cautionary tale illuminates how excessive Senate partisanship deprived the appellate bench of a remarkable jurist.
Swearing is not the first thing that comes to mind when preparing for a Supreme Court oral argument. But for lawyers arguing certain types of cases, it is something they must seriously consider.
The issue comes up when a client claims his First Amendment rights were violated when the government punished him for using foul language. This doesn’t happen often because the government doesn’t usually police for the use of expletives. But there are rare instances when using foul language can get one into trouble.
Public schools, for instance, can regulate students’ use of foul language during class time and at school functions. And the Federal Communications Commission (“FCC”) also enforces limits on indecent radio and television broadcasts.
A lawyer representing a defendant in one of these cases inevitably confronts the question of whether to use his client’s offensive language when arguing before the Court. After all, if the lawyer doesn’t use the words, she might implicitly concede that the words are so horrid they warrant suppression. Yet her job as an advocate is to convince the Court of just the opposite.
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this Article explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them is met. It concludes that Sell has created an unnecessarily complicated and often counter-productive legal regime that should be abandoned in favour of the regime that pre-existed it.
Do citizens have a right to record the actions of law enforcement officers? This topic has been the subject of considerable discussion, and no small degree of litigation, in recent years. The increase in litigation is driven by dramatic improvements in camera technology, which allow individuals to record and share images in ways that were previously available, if at all, only to members of large media organizations.
Most of the discussion and litigation has revolved around the question of whether there is a First Amendment right to record police officers in public. In the recent First Circuit case of Glik v. Cunniffe, for example, passerby Simon Glik caught sight of three police officers arresting a young man. Hearing a passerby shout that the officers were hurting the man, Glik turned on his cell phone and began capturing video. The police officers objected to being recorded, arrested Glik and charged him with violating the state’s “wiretap” law by recording them without their consent, and seized his camera and memory chip in the process as evidence. The First Circuit held that the right to record police officers in public is a “clearly established” part of the First Amendment’s protections, and held the officers were not entitled to qualified immunity.
Though the issue has not yet reached the Supreme Court, it seems safe to say that the case for First Amendment protection regarding photos and video of law enforcement officers in public is quite strong, and is in the process of being resolved. This Article, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and litigation are sure to be forthcoming.
This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into the debate, race and class being two of the most salient. Race, class, and abortion have interacted in complex and numerous ways throughout United States history. While this interaction in some respects can be described via a linear, historical approach, it is not fully explicated by a single dichotomous before/after analysis centered on Roe. Instead, race, class, and abortion are constantly interacting, sometimes co-constructed, constituent parts of a much greater social, cultural, and political conversation in the United States. I suggest that if national party politics and the Catholic Church are important aspects of the development of the United States narrative on abortion, then race and class are telling and even compelling subtexts in that narrative. Giving attention to these subtextual strands may offer valuable additional insights.
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