In the last three years, the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in Graham v. Florida and Miller v. Alabama, the Court struck down a majority of the states’ juvenile sentencing laws by outlawing life without parole (“LWOP”) for juveniles who commit non-homicide offenses and by mandating individualized sentencing for juveniles who commit even the most serious murders. An examination of state laws and sentencing practices since these rulings, however, suggests that the Graham and Miller rulings have fallen on deaf ears.
After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.
With increasing frequency, many important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012, begin as “shell bills.” The Origination Clause of the Constitution aims to place decisions over tax policy closer to the people by requiring that bills raising revenue begin in the House of Representatives, but the Clause also allows the Senate to amend such bills. The Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill), and replacing it entirely with its own unrelated revenue proposal. According to a new challenge against the Affordable Care Act, this shell bill game is an unconstitutional sleight of hand because it obfuscates the bill’s true origins in the Senate.
The constitutional fate of the Affordable Care Act and myriad other revenue laws, as well as the intra-congressional balance of power over revenue policy, turns on the interpretation of the Senate’s power to amend revenue legislation, an analysis heretofore unexplored in the academic literature. This Article draws upon constitutional text, history, and congressional and judicial precedent to conclude that such amendment power is broad and, accordingly, that revenue laws that began as shell bills do not violate the Origination Clause. This Article also proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause—a “legislative process avoidance” doctrine, whereby the Court deflects searching review of lawmaking procedures. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal rules, this legislative process avoidance doctrine further supports deference to the Senate’s expansive interpretation of its amendment power without rendering the Clause a nullity. Separation of powers concerns also show the doctrine’s promise in other constitutional contexts, such as the interpretation of gaps in the lawmaking process left open by Article 1, Section 7.
Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA-approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). These cases require the federal courts to sort out the complex relationship between the Free Exercise Clause and laws that are alleged to be neutral and generally applicable, such as the HHS mandate. But they also raise a novel threshold question: whether corporations can exercise religion under the First Amendment and RFRA. As several federal courts have noted, whether secular corporations can exercise religion is an open question. To date, this question has confounded the courts, resulting in a split between the Third, Sixth, Seventh, Tenth, and D.C. Circuits as well as the numerous district courts that have ruled on challenges to the HHS mandate. The Supreme Court recently granted certiorari in two of these cases, Hobby Lobby (Tenth Circuit) and Conestoga Wood Specialties (Third Circuit). This Article analyzes this novel and unresolved issue, arguing that the Supreme Court should follow its reasoning in Bellotti and Citizens United and hold that, just as corporations can engage in free speech, for-profit corporations can exercise religion under the Free Exercise Clause and RFRA.
Although never having addressed this specific issue, I argue that the Supreme Court has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the Free Exercise Clause. The Third and Sixth Circuits, along with several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This Article contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations—whether for-profit or non-profit—can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the Free Exercise Clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.
It is widely acknowledged that the purpose of the Federal Arbitration Act (FAA) was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively, and incorrectly, on the Supreme Court’s determination that the FAA embodies a federal policy favoring arbitration.
While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This Article fills that gap and asserts that the judiciary’s inappropriate reliance on the federal policy favoring arbitration distorts state contract law to push cases into arbitration that do not belong there, thereby unfairly depriving litigants of access to the courts. By creating special rules that favor arbitration and that deviate from state contract law, courts are enforcing arbitration agreements in situations where they would not enforce other agreements. This Article challenges the judiciary’s favored treatment of arbitration clauses and identifies several areas in which arbitration clauses are being over‑enforced as a result. The fact that courts send too many disputes into arbitration also is significant because it undermines the perception, common among both academics and judges, that courts remain hostile to arbitration rather than supportive of it.
Because the original purpose of the Federal Arbitration Act was to make arbitration clauses just like other contracts, this Article proposes that courts should construe the federal policy favoring arbitration in a way that is consistent with state contract law rather than in a way that uproots it. Doing so best ensures that litigants are not unfairly forced into arbitration where they never agreed to it.
In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void by analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 (“PDA”). The Article reveals how competing ideas about the family, wage work, and reproductive choice shaped the evolution of pregnancy discrimination law. Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and “neomaternalism.” Each of these discourses, in turn, encompassed dual valences. Liberal individualist discourse challenged sex-role stereotypes, but it also reinforced the idea that private reproductive choice rendered reproduction a private economic responsibility. Neomaternalism leveraged the social value of motherhood to gain entitlements for pregnant women, but also reinforced the normative primacy of motherhood.
Feminists’ legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and anti-abortion activists. Feminists used liberal individualist principles of equal treatment and neutrality to challenge gender stereotypes that states and employers used to justify the exclusion of pregnancy from public and private insurance schemes. The business lobby used liberal individualist principles of private choice to advance a market libertarian interpretation of sex equality that justified the denial of pregnancy-related benefits. In opposition to the business lobby, both feminists and anti-abortion activists forged a fragile alliance. Both groups made neomaternal arguments in advocating the PDA. While feminists emphasized the value of pregnancy as a form of socially productive labor, however, anti-abortion activists stressed the need to protect pregnant women and fetuses.
The points of confluence and departure between the arguments of feminists, business opponents, and anti-abortion allies both advanced sex equality under the law and also limited its scope. Feminist advocates for the PDA synthesized liberal individualist and neomaternal discourses to pursue the elimination of sex-role stereotypes under the law as well as collective societal responsibility for the costs of reproduction. While the PDA took a significant step toward the realization of this vision, it remains illusory. Our legal culture evolved to embrace not only the valences of liberal individualist and maternalist ideologies that advance sex equality but also those valences that reinforce gender inequality. Market libertarianism continues to privatize the costs of reproduction, while maternalism reinforces the sexual division of reproductive labor. Ultimately, this Article points to the persistence of tensions in the definition of sex equality and the consequent need for new legal paradigms.
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