Issue 2

Avoiding Marriage Tunnel Vision

The future of nonmarital relationship recognition is in jeopardy.  This is largely due to the current state of the movement responsible for the prior advancements enjoyed by nonmarital relationship statuses, the lesbian, gay, bisexual, and transgender (LGBT) rights movement, which in recent years has come to prioritize marriage equality over all other goals.  The movement’s prioritization of marriage equality remains a source of contention.  Many people believe that it is more important to pursue the goal of pluralistic relationship recognition, which involves acquiring legal protections for the diverse relationship and familial forms in existence today without regard to marriage eligibility.  While most individuals involved in the movement would not dispute that both marriage equality and pluralistic relationship recognition are important goals, the fear that these two goals cannot coexist successfully has come to fruition recently.  Marriage equality supporters increasingly engage in rhetoric that disparages nonmarital statuses, and marriage equality advancements have led to measurable setbacks to pluralistic relationship recognition through the repeal of nonmarital statuses in a number of states that have legalized same-sex marriage.  Occurrences such as these are unfortunate and unnecessary, but will not cease until the movement adopts specific strategies to advance both goals simultaneously.  This Article argues that ignoring the current disharmony between these two goals would be a costly mistake that would hurt many individuals both within and outside of the LGBT community.  It proposes a number of strategies, such as restructuring nonmarital relationship statuses and reconfiguring the movement’s messages, to aid the movement in successfully advancing both goals and ensuring that marriage equality advancements do not result in the eradication of pluralistic relationship recognition.

Union Made: Labor’s Litigation for Social Change

Unions are key repeat players before the United States Supreme Court.  Their involvement goes beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others.  Though scholars have documented the effects of other union activity, like collective bargaining, on nonunion workers, the role and impact of union participation in nonlabor litigation has largely been ignored in both the public debate over unions in America and in the academic literature about what unions do.  This Article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional labor law in order to show how union-made law affects interests beyond those of the labor movement, its members, and unionized employers.  It reveals how union-made law has significantly affected the structure of American government and society. This Article first describes the many areas in which union Supreme Court litigation has had important social effects extending far beyond core labor interests and explains why, as a practical matter, unions are well-situated to bring or fund these cases.  Next, the Article explores three characteristics that have the potential to shape unions’ litigation positions:  first, unions are more likely than other social movement litigators to litigate defensively as well as offensively; second, unions operate based on majority rule; and third, unions may use litigation as a part of a bargaining strategy.  The Article shows how these dynamics have played out in past cases, sometimes with surprising results.  Finally, the Article concludes with some observations regarding declining union density in this country.

Diversity as Commons

Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases—Regents of the University of California v. Bakke and Grutter v. Bollinger.  This Article argues that diversity empirically resembles a commons (i.e., a shared resource).  Extending this analysis exposes plaintiffs who file affirmative action lawsuits—individuals like Abigail Fisher in Fisher v. University of Texas at Austin—as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e., to gain admission into elite universities).  Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem.  The interests of universities and their minority students largely overlap in their desire to protect diversity.  They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions.  This refusal facilitates anti-affirmative action efforts. Relying on this analytical commons framework, this Article seeks a normative intervention.  Searching for solutions to the diversity enclosure by reviewing how others have resisted property enclosure, five resistance strategies are identified:  (1) reframing attacks as acts of enclosure, (2) disobeying the rules that enclose resources, (3) relying on government intervention, (4) changing the management structure of the commons, and (5) cooperating with those who seek to enclose.  The main normative argument is that these opposition strategies for resisting enclosure can be imported into the affirmative action context as a means for preserving race-conscious admissions policies and combating present-day anti-affirmative action efforts.

This Article contributes to scholarship dedicated to developing a language for discussing how private interests quietly seize socially common shared resources.  Employing a commons framework to discuss affirmative action identifies the actors responsible for the management and conservation of diversity.  The commons metaphor permits a holistic view of race-conscious admissions and assists conversations concerning who is suited to defend diversity and how to best protect affirmative action policies from attack.

Misspending for Youth: School Vouchers in Louisiana Are a Legally Tenuous, Short-Term Fix for a State in Need of Public Education Reform

In 2012, the Louisiana legislature hurriedly passed a law that made a scholarship program previously available only to certain students in New Orleans public schools applicable statewide.  Under this program (Student Scholarships for Educational Excellence), students who attend public schools that receive a “C,” “D,” or “F” grade based on state assessment and who also meet a family-income requirement may elect to use state funds to transfer to another school, public or nonpublic.  The legislature wanted to fund these scholarships with money from the state’s Minimum Foundation Program, a process that the Louisiana Supreme Court found violated the state constitution.  In spite of the tenuous constitutionality of this program that was made clear in the Louisiana Supreme Court’s decision, the state continues to fund these scholarships.  In so doing, Louisiana disregards the purpose of the drafters of its state constitution and risks violating the United States Constitution and interfering with long-existing federal desegregation orders. This Comment analyzes this scholarship program, compares it to those existing in other states, and considers the legal problems it creates.

The Most Dangerous Directive: The Rise of Presidential Memoranda in the Twenty-First Century as a Legislative Shortcut

The modern president faces an increasingly divided and polarized legislature. In the face of this legislative inertia, presidents must increasingly rely on the executive power to institute policy change. This Comment examines the historical expansion of the executive power through the use of presidential directives. Recently, there has been a resurgence in the use of presidential memoranda as a vehicle for significant policy change. This Comment will use President Barack Obama’s Hospital Visitation Memorandum to illustrate the issues and implications of using memoranda to enact significant presidential policy objectives with the force of law. Because memoranda lack effective procedural safeguards that are necessary to ensure a government of separated powers, this Comment argues that memoranda should not be used as a substitute for legislation that affects the rights of individuals.

Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores

By Thegreenj (Own work) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons“Locavores” aim to source their food locally. Many locavores are also more broadly concerned with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food—for personal use and for sale—and municipal zoning ordinances that seek to separate agriculture from residential uses. In this Article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods—food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions—all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.

Localism and Involuntary Annexation: Reconsidering Approaches to New Regionalism

“Involuntary” annexation—the ability of cities to expand their territory unilaterally by extending their boundaries—is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to “localism,” the belief in small, autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of “New Regionalism,” a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person’s perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need To Reform the Fourth Amendment Special Needs Doctrine

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements.  The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights. Child protection investigations illustrate the problem:  millions of times each year, state child protection authorities search families’ homes and seize children for interviews about alleged maltreatment.  Only a minority of these investigations involve suspected crimes, so most fall on the special needs side of the line.  This result undervalues the consequences of child protection investigations on children (a severe infringement of their right to family integrity) and on parents (the loss of their children and the stigma of a child abuse or neglect charge).

This Article proposes a new approach to the special needs doctrine:  the doctrine should distinguish between searches and seizures that implicate fundamental constitutional rights and those that do not.  It breaks new ground in identifying a theoretical value to such a bright line:  it gives governments less incentive to interfere with liberty by seeking alternative means to achieve their goals.  To realize this value most effectively, the line must be drawn to value all fundamental constitutional rights, not only those connected to the criminal justice system.  In child protection, it would push states to choose less-liberty-infringing models of providing assistance to vulnerable families, which the empirical record shows would serve children and the child protection system’s goals more effectively.

Darling Divas or Damaged Daughters? The Dark Side of Child Beauty Pageants and an Administrative Law Solution

Ever since TLC first aired the popular television show Toddler and Tiaras in 2009, the network has brought international scrutiny to this country’s child pageant industry. Viewers of all ages have been captivated to watch as a variety of colorful pageant parents (mostly moms) try to transform their young children (mostly girls) into pageant princesses, teaching them to dance on stage in tiny, sequined outfits, pumping them full of sugar and energy drinks, and adorning them with spray tans, fake hairpieces, and plenty of makeup. Scathing media reports suggest that pageant parents have already been tried and convicted of bad parenting in the court of popular opinion. This Comment addresses the question of whether they can and should be tried in a court of law as well. It investigates the physical and emotional harm that overzealous pageant parenting can inflict on young children, as well as the long-term effect that these practices can have on greater societal ills such as gender stereotyping and domestic violence. This Comment ultimately argues that existing legal frameworks provide an inadequate remedy for this harm and proposes an administrative law solution that can be implemented at federal, state, and local levels.

I'll Believe it When I C It: Rethinking 501(c)(3)'s Prohibition on Politicking

The United States Supreme Court's decision in Citizens United v. FEC challenged fundamental notions of free speech jurisprudence. While many commentators have focused on the decision's implications for corporate speech, this Comment examines whether the new First Amendment paradigm announced in Citizens United will challenge current speech restrictions on churches and other entities organized under § 501(c)(3). Not only does this Comment propose that such restrictions could potentially be invalidated based on the Court's reasoning in Citizens United, but also that practical factors relating to compliance and enforcement problems inherent in § 501(c)(3) indicate the ban should be amended. This Comment concludes by offering a proposed change to § 501(c)(3)'s politicking ban that would allow a § 501(c)(3) organization to engage in “some” amount of politicking, as long as it was not a substantial part of the organization's overall charitable activity.