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.
Category: 89:4
ICANN’s Escape from Antitrust Liability
Setting the Pace for Energy Efficiency: The Rise, Fall, and (Potential) Return of Property Assessed Clean Energy
Judging, Expertise, and the Rule of Law
We live in an era of hyper specialization. Professionals across a spectrum of fields focus on mastering and practicing in narrow subspecialties. This is hardly a surprise. As the scale of knowledge grows, it becomes increasingly difficult for any one person to stay on top of details and developments across a field, and specialization represents something of a natural division of labor. Law is no exception.
There already exists a relatively large body of literature outlining proposals for specialized courts and otherwise considering their perceived virtues. I seek in this Article to engage this literature in two ways. First, I hope to demonstrate that the question of specialization is much more complex and contingent than most previous discussions have allowed.The question is never just whether specialists will outperform generalists in some abstract sense it instead requires consideration of an array of factors, such as the nature of the field of specialization, the institutional context in which specialization is to be implemented, and so on. There are also questions, distinct from any differences in the substantive results achieved via the two types of courts, about whether the two types of regimes are likely to differ in the extent to which they advance rule of law values.The goal of this analysis is to work away from, rather than toward, confident conclusions. Many of the questions involved are ultimately empirical in nature, and all will require comprehensive study. I offer intentionally speculative hypotheses about potential differences between specialists and generalists, with the hope that what results can serve as a catalog of factors to be considered in efforts to develop specialized courts and an agenda for future scholarly efforts.
Second, I examine in greater detail one of the primary claims made in favor of specialized courts and judges, namely that they facilitate expert decision-making for the simple reason that judges on specialized courts will be (or will become) experts in the subject matter within the court’s jurisdiction. Those making the case for specialization in the past have suggested, without much elaboration, that because of their expertise specialized judges will make better decisions, with “better” left largely undefined. I draw on research into the psychology of expertise to explore whether specialized courts and judges really can be expected to generate better decisions, and conclude that the case for expertise is overstated. Simply put, specialized judges will almost always have a claim to expertise in the weak sense that they will be more efficient in reaching conclusions than non-experts. These efficiency gains can be substantial, and they may sometimes be of dispositive weight in a world of rising caseloads. But, it is unlikely to be the case that the content of specialists’ decisions will differ in some qualitative respect from — or be in some general sense “better than” — those of their generalist counterparts. At the same time, there may be process aspects of specialists’ decision-making that should give us pause, and that must be balanced against the efficiencies gained through specialization.
The remainder of this Article proceeds as follows. Part I outlines some of the initial definitional difficulties embedded in discuss ions of judicial specialization, and briefly reviews the primary arguments offered for and against specialization. Part II offers an assessment of the specialization debate that is designed to enlarge both the breadth and depth of the inquiry. Part III surveys psychological research on expertise, with an eye toward gleaning its insights relevant to judging. Part IV synthesizes the work of the preceding two parts, drawing on both to further refine the analysis while introducing the suggestion that the choice between specialization and generalism is likely to have rule-of-law consequences.
Cybersecurity and Executive Power
This Article analyzes the constitutional authority of the President to shut down or limit public access to the Internet in a time of national emergency. The threats posed by cybercrime, cyberwarfare, and cyberterrorism are significant. It is imperative that national governments and international policymakers develop defenses and contingency plans for such attacks. At the same time, the threats to civil liberties posed by current legislative cybersecurity proposals are equally real. Executive power to disrupt Internet access in the name of security can become as potent a weapon against democracy as a hacker’s attempt to take down the power grid. This Article examines current cybersecurity proposals in Congress and explains why they are in many ways misguided. It then examines the constitutional law of presidential power against the backdrop of recent efforts by Congress and the Executive to regulate cyberspace. The Article concludes with a proposed cybersecurity policy matrix, which could help courts and policymakers manage the difficult constitutional and policy tensions raised by the problem of cybersecurity.
Changing the Marriage Equation
This Article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework—what I call the “marriage equation”—that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. The marriage equation has changed over time, both reflecting and engendering societal preferences regarding the optimal allocation of breadwinning and caretaking responsibilities. Until fifty years ago, sex-based classifications in family and employment law aligned with gender norms to enforce an ideology of separate spheres for men and women. The groundbreaking sex discrimination cases of the 1970s ended legal distinctions between the duties of husbands and wives but left largely in place both gender norms and substantive rights within marriage, tax, and benefits law that encourage specialization into breadwinning and caregiving roles. Thus, contrary to popular conception, the modern marriage equation does not actually promote equal sharing of these responsibilities. Rather, it still encourages specialization, although the law is now formally agnostic about which spouse plays which role. The vast majority of different-sex couples still follow to some extent traditional gender roles. A body of emerging social science research suggests that same-sex couples typically allocate these responsibilities more equally than different-sex couples. But claims that same-sex couples may therefore serve as a model for different-sex couples improperly ignore that the data sets in these studies predate legal marriage for same-sex couples. By permitting disaggregation of the marriage equation to gauge more accurately the relative significance of sex, gender norms, and substantive marriage law, the new reality of same-sex marriage can serve as a natural experiment that should inform both study design and policy reform.
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