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127
12 Oct 2017

Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights

Kevin Barry and Jennifer Levi

Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time in the recent case of Blatt v. Cabela’s Retail, Inc., where a federal court ruled that transgender people are not categorically barred from seeking relief under the ADA from discrimination based on gender dysphoria—the clinically significant distress that some transgender people experience. Importantly, the Department of Justice under both the Obama and Trump Administrations has similarly interpreted the ADA to cover such discrimination. This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the ADA—and why they now should. Blatt’s historic holding will reverberate beyond the facts of that case, setting the stage for ADA challenges to a broad range of discrimination against transgender people who experience stigma and bias associated with gender dysphoria.

Collection

Online Platforms and Free Speech: Regulating Fake News

The 2016 election was marked by an epidemic of "fake news," or false information made to look like credible news reports. How can fake news be regulated while safeguarding First Amendment values and platform intermediary immunity? This Collection offers a series of policy proposals and reflections on the origins of fake news and how the dissemination of misinformation online can be addressed.

09 Oct 2017

Helping Truth with Its Boots: Accreditation as an Antidote to Fake News

Anna Gonzalez & David Schulz

A generally accepted, objective way to differentiate reliable generators of accurate information from purveyors of “fake news” would take significant positive steps toward combating its spread. Other spheres of our economy successfully use private accreditation systems to distinguish quality products and services from those that are inferior or fraudulent. This Essay considers online platforms’ current approaches to fake news before contemplating how a similar nongovernmental accreditation system might work to distinguish reliable journalism from disinformation.

09 Oct 2017

Real Talk About Fake News: Towards a Better Theory for Platform Governance

Nabiha Syed

Following the 2016 U.S. presidential election, “fake news” has dominated popular dialogue and is increasingly perceived as a unique threat to an informed democracy. Despite the common use of the term, it eludes common definition. When we agonize over the fake news phenomenon, though, we are not talking about these kinds of fabricated stories. Instead, what we are really focusing on is why we have been suddenly inundated by false information—purposefully deployed—that spreads so quickly and persuades so effectively. This is a different conception of fake news, and it presents a question about how information operates at scale in the internet era. And yet, too often we analyze the problem of fake news by focusing on individual instances, not systemic features of the information economy. This Essay therefore recommends that we must build a realistic theory—based on observations as well as interdisciplinary insights—to explain the governance of private companies who maintain our public sphere in the internet era.

09 Oct 2017

Wikipedia and Intermediary Immunity: Supporting Sturdy Crowd Systems for Producing Reliable Information

Jacob Rogers

The problem of fake news impacts a massive online ecosystem of individuals and organizations creating, sharing, and disseminating content around the world. One effective approach to addressing false information lies in monitoring such information through an active, engaged volunteer community. Wikipedia, as one of the largest online volunteer contributor communities, presents one example of this approach. This Essay argues that the existing legal framework protecting intermediary companies in the United States empowers the Wikipedia community to ensure that information is accurate and well-sourced. The Essay further argues that current legal efforts to weaken these protections, in response to the “fake news” problem, are likely to create perverse incentives that will harm volunteer engagement and confuse the public. Finally, the Essay offers suggestions for other intermediaries beyond Wikipedia to help monitor their content through user community engagement.

03 Oct 2017

Foreign Cyber Attacks and the American Press: Why the Media Must Stop Reprinting Hacked Material

Nathaniel A. G. Zelinsky

While much ink has been shed dissecting Russia’s attempt to interfere in the 2016 presidential election, few have focused on the role played by the American media in facilitating Russia’s cyber attacks. Reporters investigated thousands of hacked emails, packaged the stolen information into narratives that American voters understood, and disseminated the final product to the public. If the press had refrained from serving as a conduit between foreign hackers and the electorate, it is possible that the social harms of Moscow’s hacks could have been curtailed. Going forward, there are two ways to incentivize the media to stop assisting hostile foreign powers that steal and reveal confidential information. Under existing First Amendment precedent, because the government possess no feasible way of directly deterring state-sponsored hackers, Congress might be able to place liability on the downstream publishers of hacked material. Though liability may effectively ameliorate the harms of hacking, this law-based approach carries troubling normative implications for press freedoms. Instead of a new liability regime, this Essay argues that journalists should voluntarily adopt a professional norm against publishing the contents of a hack. This norm should only extend to hacked material and should not prevent the media from using leaks as sources—a common journalistic practice that has come under fire in recent months. While there are practical challenges to convincing journalists to adopt new ethical guidelines, state-sponsored hacks implicate core national security concerns, and members of the media may well be receptive to a call to their civic republican responsibilities at this particular moment in American history.

30 Sep 2017

Clash of the Titans: Plenary Power and Habeas Corpus in Castro

Annika Mizel

“To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution?” Nearly 230 years have passed since we were first confronted with that opening line from Federalist No. 51, yet this question has not become any easier to answer. Although the struggle to delineate an appropriate separation of powers spans numerous arenas, one area of escalating concern is the debate over immigration policy. The Third Circuit recently engaged a sliver of that debate in Castro v. Department of Homeland Security, when it held that immigrants in expedited removal proceedings have no constitutional rights regarding their application to enter the United States—and thus may be denied habeas corpus at the legislature’s discretion without violating the Suspension Clause. This Essay challenges that conclusion, contending that judicial review over immigration procedures remains an invaluable safeguard in our constitutional system.

09 Sep 2017

New Sheriff, Old Problems: Advancing Access to Justice Under the Trump Administration

Rebecca Buckwalter-Poza

There is a crisis in access to justice in the United States. The justice gap—the gap between people’s legal needs and the legal services available—is wide and growing. Recent data from the Legal Services Corporation and the University of Chicago confirm that this gap primarily stems from a lack of information about legal rights, remedies, and resources. This information gap can be remedied by increasing public education on these topics and by improving the means of seeking legal assistance. I argue that information-centered advocacy may be the most effective means of closing the justice gap. Such advocacy may also be the most resource efficient, a critical consideration in a landscape where proponents of access to justice lack the political support to win increased federal funding for civil legal aid. However, the success of this approach will ultimately depend on a second, more challenging feature of the current American government: fundamental threats to the justice system currently emanating from the executive.

03 Aug 2017

Nationwide Injunctions: Venue Considerations

Kate Huddleston

A criticism of nationwide injunctions is that they engender forum shopping, with litigants seeking out a court more likely to be favorable to them in order to obtain sweeping relief. This picture, though, oversimplifies the relationship between venue and the scope of injunctive relief, particularly for lawsuits against federal actors. Cabining nationwide injunctions would shift the incentives for litigant venue choice. Limitations on nationwide injunctions would place increased weight on early lawsuits in forums in which venue is proper based on the characteristics of the defendant, because any similarly situated litigant can bring suit there. Section 1391(e) of Title 28, the statutory provision for venue against federal actors, provides for broad scope for venue, including permitting venue based on the plaintiff’s place of residence. Such limitations would lead to distortions in incentives for venue choice contrary to the purposes underlying the enactment of § 1391(e) as well as systematically disadvantage less well-resourced litigants. The debate over nationwide injunctions must take into account the effects of changes to the scope of injunctive relief on the venue choice architecture, and consider both venue and the scope of injunctive relief concomitantly in the institutional design of federal litigation.

Collection

Justice Thomas: Twenty-Five Years on the Supreme Court

2016 marked the twenty-fifth anniversary of Justice Clarence Thomas’s appointment to the Supreme Court. This Collection offers a series of reflections on Justice Thomas's tenure on the Court and his impact on the law.

02 Aug 2017

Justice Thomas, Criminal Justice, and Originalism’s Legitimacy

William H. Pryor Jr.

After a quarter of a century on the Supreme Court, Justice Clarence Thomas’s jurisprudence in the field of criminal law offers no shortage of themes to discuss, but it especially shows how he has advanced originalism as a respected methodology. Often both the political and academic commentary about originalism focuses on Justice Antonin Scalia. In the wake of his death a year ago, that focus has been understandable. Justice Scalia left a tremendous legacy. His scholarly output, outsized personality, and zealous advocacy on behalf of originalism have bestowed great benefits on our legal culture by focusing the attention of judges and attorneys toward neutral principles and away from subjective policy preferences. But if Justice Scalia bore significant responsibility for advancing the popular understanding of originalism, then Justice Thomas deserves singular credit for strengthening the case for its legitimacy.

02 Aug 2017

At the Front of the Train: Justice Thomas Reexamines the Administrative State

Elbert Lin

In his quarter-century as an Associate Justice, Clarence Thomas has been the most originalist, and arguably the most original, thinker on the Supreme Court. In the October 2014 Term, Justice Thomas set his sights on the administrative state. In five separate writings, Justice Thomas laid out an originalist understanding of the judicial and legislative powers that called for a reexamination of several strands of the Supreme Court’s administrative law jurisprudence. And he chastised the Court for “straying further and further from the Constitution without so much as pausing to ask why." In this Essay, I explore why Justice Thomas may have chosen the October 2014 Term to focus closely on the administrative state and what impact his opinions might have going forward.

02 Aug 2017

A Humble Justice

Marah Stith McLeod

Justice Thomas’s criminal law opinions have provoked acerbic commentary in the press and academic writing. The depiction of Justice Thomas’s opinions as intentionally cruel is a mistake. It creates an inexplicable divide between the Justice in person, whom many know to be humble and compassionate, and the Justice on paper, who is held to be callous and cruel. The judicial humility this Essay seeks to reveal in Justice Thomas’s work has five core features: first, an insistence on reaching and pronouncing the correct interpretation of the law even when one disagrees with the result; second, persistence in the correct interpretation despite potential or actual backlash; third, a recognition of one’s own limitations and a resulting commitment to doctrines and practices that subordinate self to law; fourth, a willingness to admit mistakes; and finally, a foundation in faith.

02 Aug 2017

How Justice Thomas Determines the Original Meaning of Article II of the Constitution

Gregory E. Maggs

Justice Thomas has a well-known reputation for striving to decide constitutional issues in accordance with the original meaning of the Constitution. This Essay concerns a specific question about this methodology in cases concerning presidential powers: How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution? The answer to this question has both academic and practical dimensions. The principal academic concerns are whether Justice Thomas’s approach is complete and logical and whether it accords with his approach in other constitutional issues. The answer is practical because it reveals what kinds of arguments and sources persuade Justice Thomas.

02 Aug 2017

“To Help, Not To Hurt”: Justice Thomas’s Equality Canon

William S. Consovoy and Nicole Stelle Garnett

In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes grudging) respect of legal scholars and commentators, including many who disagree with him, for his careful, principled, analytic approach to many areas of law. Race is not among them. Justice Thomas's opinions reflect, first and foremost, his conviction that the Fourteenth Amendment’s Equal Protection Clause, as properly understood, precludes the government from discriminating against and between people on the basis of race. What distinguishes his racial equality opinions, making them both compelling and controversial, is that he also explains why he believes that race-based government policies are not only unconstitutional, but also unwise, unjust, and harmful to their intended beneficiaries. Our approach is descriptive: we seek to explain his views on race using his own words and drawing upon his life experiences.

02 Aug 2017

No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine

Kate Stith

Time and again, we have seen that neither precedent nor a perceived need to achieve consensus on the Court can hold Justice Clarence Thomas back from pronouncing what he has found to be the best understanding of the Constitution and federal statutes. His decisions scrape away at what Ralph Rossum has called the “excrescence” of flawed precedent, no matter how deeply entrenched. He looks beyond the entrenchment to the Constitution and history. Not surprisingly, his administrative law decisions and his decisions directly interpreting the Constitution receive the most attention. But the Justice’s deep commitment to not only thinking, but rethinking is also on display in the more prosaic criminal-law opinions I will discuss.

26 Jun 2017

Professional Speech and the Content-Neutrality Trap

Claudia E. Haupt

The Eleventh Circuit’s en banc decision in Wollschlaeger v. Governor of Florida is remarkable for embracing content neutrality as a tenet of First Amendment doctrine in the realm of professional speech. It reflects a new form of aggressive content neutrality on the rise in First Amendment jurisprudence beginning with Reed v. Town of Gilbert, a seemingly innocuous case about a municipal sign ordinance. Reed ushered in what may turn out to be a dramatic shift in the way courts employ content neutrality as a core principle of the First Amendment. But content neutrality should not be thought of as axiomatic across the First Amendment. This Essay illustrates the dangers of falling into the content-neutrality trap in the context of professional speech. Professional speech communicates the profession’s insights to the client for the purpose of providing professional advice, and the value of professional advice critically depends on its content. The First Amendment therefore may not require regulation to be blind to the content of professional speech.

19 Jun 2017

Insider Trading's Legality Problem

Miriam H. Baer

In late 2016, in its highly-watched decision in Salman v. United States, the Supreme Court attempted once again to clarify the crime of insider trading, this time regarding the secondary and tertiary recipients of information commonly referred to as “remote tippees.” In doing so, the Court seemed to put to rest any question that a person who “gifts” a friend or family member with material non-public information for the purposes of trading on such information does in fact trigger a violation of law. As cases go, Salman is relatively straightforward. Nevertheless, it demonstrates several of the drawbacks that arise when criminal laws become the product primarily of cases and not statutes. Ordinarily, proponents of legislative law-making cast their arguments in fairness terms, as written statutes provide advance warning of what is and is not forbidden. This Essay contends that legislatively enacted statutes go further than that. Under the best circumstances, they can improve the content of criminal law precisely because they permit the legislature to differentiate similar yet morally distinct conduct. With this benefit in mind, the Essay imagines what insider trading law might look like were Congress to both define and subdivide the crime of insider trading into the kind of tiered or degreed crimes more routinely featured in state codes.

13 Jun 2017

Hively's Self-Induced Blindness

Brian Soucek

The Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College has received as much attention for its dueling views of statutory interpretation as for its historic holding: that sexual orientation discrimination is protected under Title VII’s “because of sex” prong. Yet the opinions’ divergent approaches to statutory interpretation end up doing surprisingly little work. Lacking substantive engagement with the ways sexual orientation discrimination helps police gender norms or longstanding debates over how thoroughly Title VII is meant to disrupt those norms, the opinions instead offer an originalism without history, a dynamic interpretation that lacks limits, and a textualism largely divorced from the values Title VII’s text is meant to address. As other courts consider whether to join Hively’s important holding, its gender-blind approach to equality law should give way to one that foregrounds the opportunity-limiting sex stereotyping at the heart of anti-LGBT animus.

02 Jun 2017

Public Interests, Private Institutions? Public Policy Challenges to Tax-Free Universities

Wally Hilke and Amit Jain

As the increasing concentration of wealth and property in private universities draws attention and criticism, legislators across political parties and jurisdictions are questioning the scope of broad university tax exemptions. Universities have responded by asserting that state and federal constitutional provisions offer their assets perpetual protection from taxation—assets that not only include classrooms and dormitories, but also golf courses, power plants, travel agencies, and health clinics.

In response to these arguments, this Essay proposes ways in which states and localities could clarify or challenge sweeping property tax exemptions for private universities, with a special focus on Yale University’s charter and Connecticut state law. The Essay argues that by either clarifying the boundaries of Yale’s property tax exemption or freezing it in place, the Connecticut legislature could—and should—reclaim the state’s fundamental power of taxation and gain leverage for negotiations with Yale, without running afoul of constitutional requirements. The Essay closes with a brief discussion of other universities and communities that could utilize an analogous approach.

22 May 2017

Can New York Publish President Trump's State Tax Returns?

Daniel J. Hemel

Breaking from a decades-old norm of presidential tax transparency, Donald Trump has refused to make his federal income tax returns available for public inspection. Congressional leaders have blocked bipartisan legislation that would compel the President to disclose his returns. New York State, however, has a unique opportunity to ensure that the practice of presidential tax transparency endures. As a longtime New York resident, President Trump files state tax returns that contain most of the information found in his federal filings. A bill pending in the New York State Legislature would direct state tax authorities to release returns filed by the President and statewide elected officials. If the bill becomes state law, it will do much to protect the norm of presidential tax transparency from Trump’s attack.

This Essay considers the legal issues surrounding New York’s potential disclosure of President Trump’s state tax returns. It anticipates and addresses arguments that state disclosure would violate the Bill of Attainder Clause, the constitutional right to privacy, due process limits on retroactivity, restrictions on state interference in national political processes, and the doctrine of intergovernmental immunity. It also examines federal laws protecting taxpayer privacy and considers whether New York’s publication of the President’s state tax filings would violate the Internal Revenue Code’s prohibition on disclosure of returns and return information. The Essay concludes that federal law does not prevent New York from adopting and enacting legislation that would require the release of the President’s state tax returns. New York can—and, this Essay argues, should—publish the President’s state tax returns if Trump himself and his allies in Congress refuse to act.

16 May 2017

Clarifying the Employee-Officer Distinction in Appointments Clause Jurisprudence

E. Garrett West

On May 24, the D.C. Circuit sitting en banc will hear oral argument on whether Securities and Exchange Commission (SEC) administrative law judges (ALJs) count as inferior officers rather than employees for purposes of the Appointments Clause. This Essay attempts to articulate a coherent employee-officer distinction that suits the Constitution’s text and structure, that remains consistent with the Court’s precedent, and that provides a clear legal rule for judges and for Congress. Part I traces the evolution of the doctrine from an early opinion of Justice Marshall through the nineteenth century to the modern cases of Buckley and Freytag. From this often-confused line of cases, the Essay explains the central normative and constitutional considerations that animate the Court’s doctrine. Part II draws on this doctrine and on related administrative law jurisprudence to present a legal rule that defines who must be an officer under the Appointments Clause: any person who is vested with the authority to alter legal rights and obligations on behalf of the United States. Part III applies this analysis to a recent circuit split between the Tenth Circuit and the D.C. Circuit, and it sides with the Tenth: SEC ALJs are officers of the United States who must be appointed according to the strictures of the Appointments Clause.

01 May 2017

May Congress Abrogate Stare Decisis by Statute?

James Durling

On January 3, 2017, Congressman Steve King introduced a bill that would bar federal courts, including the Supreme Court, from citing a number of the Court’s decisions on the Patient Protection and Affordable Care Act (ACA) “for the purpose of precedence [sic].” The bill cites Article 3, Section 2 of the Constitution, which allows Congress to restrict the Court’s appellate jurisdiction, as legal justification for Congress’s power to regulate rules of precedent. Not surprisingly, media commentators quickly questioned the bill’s constitutionality. What these early news stories overlooked, however, is that King’s proposal does not raise a novel legal question. On the contrary, over a decade ago, Michael Paulsen published an article in the Yale Law Journal arguing that Congress could do exactly what the bill proposes. Over the ensuing years, scholars have debated Paulsen’s argument, without resolving the core question posed by his article.

24 Apr 2017

Federalism and the End of Obamacare

Nicholas Bagley

Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states. For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination. Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law places on their taxing authority. A more refined understanding of the functional justifications for federal action enables a crisp evaluation of the ACA—and of replacements that claim to return authority to the states.

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