Showing papers in "Chicago-Kent} Law Review in 2012"

Constitutionalism: East Asian Antecedents

Abstract: To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. As constitutionalism has spread beyond its alleged homeland in the West, it behooves us to ask about the relationship between the particular ideas that emerged in enlightenment Europe and North America with the previous political-cultural understandings of non-European societies. This inquiry has implications for thinking about legal transplants, and for our understanding of how constitutions work in the contemporary world. Ultimately, it calls into question the Western narrative of exceptionalism, in which constitutionalism and the rule of law are seen as distinctive Western contributions.

Adultery by Doctor: Artificial Insemination, 1890–1945

Abstract: In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives, I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use -- three interrelated trends that led to increasing numbers of babies whose origins were “in the test tube.” In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors’ persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged.

Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes

Abstract: Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People’s Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People’s Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a ‘right’ as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories and values, this Article examines a series of court cases involving employer-employee labor disputes, wherein lower court judges actively engaged in constitutional interpretation and openly invoked and enforced horizontally oriented socio-economic rights to prosecute exploitative labor practices. This analysis demonstrates that the study of Chinese constitutionalism need not be methodologically confined by the institutional paradigms or the rights discourse of Euro-American constitutionalism. Due consideration should be given to the comparative implications of the judicialization of the constitution in lower courts, as well as the possibility of a rights discourse emphasizing constitutionally enshrined horizontal (rather than only vertical) rights.

Electronic Privacy and Employee Speech

Abstract: The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former.

Court Reform and Breathing Space under the Establishment Clause

Abstract: Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the Establishment Clause? This article develops two themes. The first is that the Court wants to cut down on the amount of Establishment Clause litigation, in an asymmetrical fashion that increases the prospect of government aid for religion. This “court reform” explanation denies the relevance of individual psychic harm from and suggests that the Clause has little to do with governmental religious spending. The second theme is that the Justices are preparing a major substantive departure from existing doctrine, but have not yet worked out its contours. Rather than clouding doctrine with messy transitional rulings, they seek “breathing space” until the best opportunity arises for a bold transformative departure. A cutoff of taxpayer standing, by reducing the frequency of Establishment Clause litigation, may afford the time and circumstances needed to fashion a new direction. The retreat from Flast has important ramifications. By removing an entire class of cases, it surrenders control over those issues to the government’s political branches, giving them largely unreviewable discretion about whether and how to treat religion in taxing and spending. This converts financial arrangements between church and state from a constitutional to a political issue. It also renders the commands of the Establishment Clause regarding spending on religion largely precatory.

Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause

Abstract: This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that the jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to explore how achieving greater coherence in Establishment Clause jurisprudence, and thereby making law an agent of constructive political engagement rather than a fomenter of religious culture wars, will require a rethinking of the secular. The central claim of this paper is that a binary approach to the secular has created a sharp and irresolute cleavage within legal discourse about religious symbols. There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. Constitutional debate has commonly framed, both implicitly and explicitly, the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it encourages, the Court’s jurisprudence has concretized the binary. Whatever the relative intellectual merits of these two traditions — and the purpose of this paper is not to advance a normative position on the matter — neither has proven able to attract adequate cultural buy-in. One links the secular with a theological narrative that, to many, is narrow, exclusionary and fundamentally incompatible with the basic precepts of an open liberal society. The other defines the secular as standing over and against religion in a manner that fails to resonate with historical practices and the religious convictions of many citizens. What is instead needed is a way of conceptualizing the secular that opens the Establishment Clause to new forms of meaning. The primary aim of this paper is to offer such an account, which will be described as higher law secularism.

From constitutional listening to constitutional learning

Abstract: In this article, I point out some limitations of Michael Dowdle’s “listening” model, particularly its basis in the “principle of charity.” I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative “learning” Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the “self-reflexive approach” to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from others. I argue that we must go beyond an expansion of the term constitutionalis m, to consider its replacement: the Chinese conversation is not a case study that exhibits features predictable by already-existing (and largely Western-centric) models of legal understanding, but stands as itself an important source of socio-political theory that can contribute to solving larger puzzles within political- and social-scientific analysis more generally, including democratic theory and Chinese politics.

The Constitutional Politics of the Establishment Clause

Abstract: In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts - national interdiction, congressional disability, and state sovereignty - may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

The Future of the Establishment Clause in Context: A Response to Ledewitz

Abstract: Throughout a body of work, Bruce Ledewitz has argued for a different approach to the Establishment Clause. Ledewitz suggests that our society would better off if courts were more permissive of governments putting up religious symbols or offering religious messages. Nonbelievers have been deeply offended by these things. But such offense is unnecessary, Ledewitz says, as nonbelievers can focus on the deeper humanistic and essentially non-religious (or super-religious, if you will) messages that religious imagery conveys. And when nonbelievers choose to take offense at these kinds of things, they only deepen the religious/secular divide that is rattling our society's foundations. This piece reviews Ledewitz's work. There is much to praise. Ledewitz is a thoughtful and empathetic person, trying to find some common ground between believers and non-believers that can enable them to live together in peace. But Ledewitz's approach has some significant drawbacks. Ledewitz criticizes the Supreme Court for drawing silly lines. But because Ledewitz still wants courts to declare outrageous endorsements of religion unconstitutional, he simply draws other silly lines. More fundamentally, Ledewitz would dilute the idea of religious neutrality beyond recognition, an idea that I take to be essential for reasons I try to briefly express.

Portia's Deal

Abstract: The New Deal, one of the greatest expansions of government in U.S. history, was a “lawyers’ deal”: it relied heavily on lawyers’ skills and reflected lawyers’ values. Was it exclusively a “male lawyers’ deal”? This Essay argues that the New Deal offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers. Agencies associated with social welfare policy, a traditionally “maternalist” enterprise, seem to have been particularly hospitable. Through these agencies, women lawyers helped to administer, interpret, and create the law of a new era. Using government records and archived personal papers, this Essay examines three under-studied women lawyers of the New Deal. Sue Shelton White, an outspoken feminist from Tennessee, came to the New Deal after a long career as a court reporter, political organizer, and senate staffer. Records of her time in government suggest the difference that gender, and specifically gendered opportunity structures, made to the work of a New Deal lawyer. Marie Remington Wing, a prominent politician and lawyer in her native Cleveland, joined the New Deal as the lead attorney in a regional office. Her biography encourages scholars to remember that just as the New Deal was national in scale, so too was its legal work. Regional outposts of the New Deal provided some women lawyers with a taste of the power that the men in Washington enjoyed. Bernice Lotwin Bernstein was in age, brains, and social networks the equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” She joined the New Deal in 1933 and stayed for forty-five years, narrowly surviving a Cold War loyalty-security investigation. Her life offers a case study in the appeal, and the dangers, that government work held for women lawyers. Taken together, these three biographies suggest the need for sustained scholarly attention to the “Portias” of the New Deal.

Excavating Constitutional Antecedents in Asia: An Essay on the Potential and Perils

Abstract: This essay appeared in a symposium issue titled 'Methodological appraches to Asian Constitutionalism' Written as a response to a main article authored by Tom Ginsburg, it seeks to endorse Tom Ginsburg's call for studies that expand the relatively limited range of historically informed scholarship on constitutional law in Asia Such a trend will no doubt also broaden the focus of the discipline of contemporary constitutional scholarship, which remains unjustifiably narrow and excludes many regions of the globe While appreciating the virtues of Ginsburg' broader analysis, the essay also seeks to draw attention to the potential pitfalls of such historically-oriented inquiry I emphasize the fact that in many Asian societies, contemporary constitutional practice marks radical departures from pre-existing traditions of law and constitutionalism Drawing upon an example cited by Ginsburg and three others from debates in contemporary Indian constitutionalism, I seek to highlight potential problems with seeking to draw connections between the past and contemporary constitutional practice in Asia Scholars seeking to follow Ginsburg's call should bear in mind the considerations of methodology and interpretation that this essay highlights The version of the article uploaded here is the one that is availabe for free on the website of the Chicago-Kent Law Review

Toward a Meaning-Full Establishment Clause Neutrality

Abstract: Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating the Establishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.

Open Secret: Why the Supreme Court has Nothing to Fear From the Internet

Abstract: The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time. † Paul E. and the Hon. Joanne F. Alper ’72 Judiciary Studies Professor, Syracuse University College of Law; Professor of Political Science, Syracuse University Maxwell School of Citizenship and Public Affairs; Director, Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University. I thank Carolyn Shapiro and Christopher Schmidt for organizing “The Supreme Court and the Public,” the conference for which this essay was written. I also thank the conference participants for their helpful comments. 1 One way to think about the impact of technology today is to consider the transformation of information. By 2002, the amount of digitally recorded information matched the amount of analog recorded information for the first time in history; five years later the balance had tipped heavily in one direction and digital information accounted for 94% of all the recorded information on the planet. This immense and rapidly growing body of digital data is distinguished by one dominant characteristic: liquidity. “[I]nfinitely reproducible, frictionlessly mobile” digital information flows far more quickly and continuously than its analog ancestor ever could. With this bonanza of highly fluid digital information, it has become much easier to publicize and distribute the work of governmental institutions like the United States Supreme Court. SCOTUSblog, for example, provides comprehensive coverage of the Court’s docket, broadly disseminating a level of detail that was once known only to a small circle of dedicated Court watchers. The Oyez Project maintains a multimedia archive with over 7,000 hours of Court audio, giving the public free access to oral arguments without requiring a journey to the 1 Andy Greenberg, THIS MACHINE KILLS SECRETS: HOW WIKILEAKERS, CYPHERPUNKS, AND HACKTIVISTS AIM TO FREE THE WORLD’S INFORMATION 5 (2012). 2 Id. 3 SCOTUSblog, About Us, available at http://www.scotusblog.com/about/ (last visited November 1, 2012).

A Look at the Establishment Clause through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers

Abstract: This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes that the ongoing debates among Supreme Court Justices over the relevance of religious minority perspectives contribute to more general divisions that continue to characterize the current state of the Court’s Establishment Clause jurisprudence.