According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking-related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display the images, accompanied by a textual warning, on half of the front and rear panels of every cigarette package. This new graphic format — the first alteration of cigarette package warnings in over twenty-five years — represents a significant and aggressive change in the way that the government communicates the dangers of smoking to the public.To prevent the introduction of these new labels into the marketplace, the tobacco industry has filed suit alleging that the graphic warnings infringe on its First Amendment right to refrain from speaking. The two circuit courts that have considered this issue are divided sharply over the labels’ constitutionality and the appropriate framework for assessing them. This Note examines this legal fissure and argues that the warnings should be examined under the strict scrutiny standard of judicial review. Ultimately, this Note contends that the labels do not pass muster under this intense level of scrutiny and are thus unconstitutional compulsions of speech.
{"title":"Joe Camel Versus Uncle Sam: The Constitutionality of Graphic Cigarette Warning Labels","authors":"B. Hardesty","doi":"10.2139/SSRN.2207750","DOIUrl":"https://doi.org/10.2139/SSRN.2207750","url":null,"abstract":"According to the Surgeon General, tobacco use is the leading preventable cause of death in the United States. Smoking-related diseases kill 443,000 Americans each year, more than are killed by HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. To address this public health threat, Congress enacted the Family Smoking Prevention and Tobacco Control Act (TCA) in 2009, which gave the federal government unprecedented power to regulate the tobacco industry. Among its provisions, the TCA requires the U.S. Food and Drug Administration to select images that depict smoking’s deleterious effects and compels tobacco companies to display the images, accompanied by a textual warning, on half of the front and rear panels of every cigarette package. This new graphic format — the first alteration of cigarette package warnings in over twenty-five years — represents a significant and aggressive change in the way that the government communicates the dangers of smoking to the public.To prevent the introduction of these new labels into the marketplace, the tobacco industry has filed suit alleging that the graphic warnings infringe on its First Amendment right to refrain from speaking. The two circuit courts that have considered this issue are divided sharply over the labels’ constitutionality and the appropriate framework for assessing them. This Note examines this legal fissure and argues that the warnings should be examined under the strict scrutiny standard of judicial review. Ultimately, this Note contends that the labels do not pass muster under this intense level of scrutiny and are thus unconstitutional compulsions of speech.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67990372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The growth and development of the United States after World War II left the country needing more flexibility in zoning law. Over the past few decades, zoning has undergone drastic changes to make the process more flexible. Two methods used to meet this new demand are contract and conditional zoning. Jurisdictions are split on whether to permit contract zoning, conditional zoning, both, or neither. This is an important question that a growing number of jurisdictions have recently encountered. This Note seeks to propose potential solutions to the conflict by analyzing it through public choice theory. By applying the principles of public choice theory, this Note finds that increased flexibility in zoning will likely have the undesired consequence of allowing legislators to easily appease interest groups, rather than bargain for the most efficient land use allocation. From this observation, this Note ultimately concludes that jurisdictions should either prohibit both contract and conditional zoning or, if economic efficiency concerns prove too great, permit both contract and conditional zoning but apply a strict standard of judicial review.
{"title":"Contract and Conditional Zoning Without Romance: A Public Choice Analysis","authors":"Philip L. Fraietta","doi":"10.2139/SSRN.2207482","DOIUrl":"https://doi.org/10.2139/SSRN.2207482","url":null,"abstract":"The growth and development of the United States after World War II left the country needing more flexibility in zoning law. Over the past few decades, zoning has undergone drastic changes to make the process more flexible. Two methods used to meet this new demand are contract and conditional zoning. Jurisdictions are split on whether to permit contract zoning, conditional zoning, both, or neither. This is an important question that a growing number of jurisdictions have recently encountered. This Note seeks to propose potential solutions to the conflict by analyzing it through public choice theory. By applying the principles of public choice theory, this Note finds that increased flexibility in zoning will likely have the undesired consequence of allowing legislators to easily appease interest groups, rather than bargain for the most efficient land use allocation. From this observation, this Note ultimately concludes that jurisdictions should either prohibit both contract and conditional zoning or, if economic efficiency concerns prove too great, permit both contract and conditional zoning but apply a strict standard of judicial review.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67989502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex. Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader and more insidious than generally understood. It is true that courts usually avoid expressly invoking the doctrine in non-sexual cases, instead applying the standard content-neutrality analysis. But that “standard” neutrality analysis has actually been quietly warped over the past three decades by the influence of the secondary effects doctrine. These doctrinal distortions have occurred without anything like the outcry generated by the prospect of express use of the doctrine in political speech cases. The results of this doctrinal shift are striking, with some courts treating as “neutral” laws that deliberately discriminate among speakers and messages on public sidewalks, in parade permitting, and even in what political messages can be worn on t-shirts. This Article (1) describes the manner in which the standard neutrality analysis has been warped by the secondary effects doctrine, (2) demonstrates the dangerous First Amendment effects of those changes by examining several recent cases in which courts have allowed content-based or even viewpoint-based speech restrictions to stand, and (3) explains how the Supreme Court and lower courts can and should correct this serious First Amendment problem.
{"title":"Neutral No More: Secondary Effects Analysis and the Quiet Demise of the Content-Neutrality Test","authors":"Mark L. Rienzi, Stuart Buck","doi":"10.2139/SSRN.2220460","DOIUrl":"https://doi.org/10.2139/SSRN.2220460","url":null,"abstract":"When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex. Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader and more insidious than generally understood. It is true that courts usually avoid expressly invoking the doctrine in non-sexual cases, instead applying the standard content-neutrality analysis. But that “standard” neutrality analysis has actually been quietly warped over the past three decades by the influence of the secondary effects doctrine. These doctrinal distortions have occurred without anything like the outcry generated by the prospect of express use of the doctrine in political speech cases. The results of this doctrinal shift are striking, with some courts treating as “neutral” laws that deliberately discriminate among speakers and messages on public sidewalks, in parade permitting, and even in what political messages can be worn on t-shirts. This Article (1) describes the manner in which the standard neutrality analysis has been warped by the secondary effects doctrine, (2) demonstrates the dangerous First Amendment effects of those changes by examining several recent cases in which courts have allowed content-based or even viewpoint-based speech restrictions to stand, and (3) explains how the Supreme Court and lower courts can and should correct this serious First Amendment problem.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68001782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions. This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions on absentees. Finally, this Note concludes that courts should generally dismiss opt-out absentees without prejudice, and dismiss opt-in absentees with prejudice.
{"title":"Let the Punishment Fit the Crime: Sanctioning Absent Class Members for Failure to Respond to Postcertification Discovery Requests","authors":"Elizabeth A. Kalenik","doi":"10.2139/SSRN.2207477","DOIUrl":"https://doi.org/10.2139/SSRN.2207477","url":null,"abstract":"Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions. This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions on absentees. Finally, this Note concludes that courts should generally dismiss opt-out absentees without prejudice, and dismiss opt-in absentees with prejudice.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67988227","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note surveys the current landscape of the Recess Appointments Clause. With the recent recess appointments of Richard Cordray to direct the Consumer Financial Protection Bureau (CFPB) and three other individuals to join the National Labor Relations Board (NLRB), came an influx of old — and new — controversy over the President's recess appointment authority. This Note explores interpretational issues that have surrounded the Clause since its inception, as well as novel issues that have arisen with the Congress’s use of pro forma sessions in an attempt to block recess appointments and derail the executive’s agenda. The conflict over control of the appointments process is at its peak, as exemplified by the current litigation seeking to invalidate President Obama's most recent recess appointments. This Note examines the varied interpretations of the Clause, the current litigation and potential dispositions, the increasing congressional trend of using the appointments process as an obstructionist device, and the possible state of both the CFPB and the Recess Appointments Clause after litigation. Ultimately, this piece proposes a modified functionalist standard by which the validity of recess appointments should be judged. That is, if the Senate is in a truly functional recess for a period of longer than three days, then the President should be able to make a valid recess appointment. Additionally, this three-day rule can be broken in the event of an emergency that renders the Senate unable to advise and consent to a nominee at a time when a recess appointment is necessary for the uninterrupted functioning of the government.
{"title":"Taking Back What's Theirs: The Recess Appointments Clause, Pro Forma Sessions, and a Political Tug-of-War","authors":"A. Wolf","doi":"10.2139/SSRN.2205259","DOIUrl":"https://doi.org/10.2139/SSRN.2205259","url":null,"abstract":"This Note surveys the current landscape of the Recess Appointments Clause. With the recent recess appointments of Richard Cordray to direct the Consumer Financial Protection Bureau (CFPB) and three other individuals to join the National Labor Relations Board (NLRB), came an influx of old — and new — controversy over the President's recess appointment authority. This Note explores interpretational issues that have surrounded the Clause since its inception, as well as novel issues that have arisen with the Congress’s use of pro forma sessions in an attempt to block recess appointments and derail the executive’s agenda. The conflict over control of the appointments process is at its peak, as exemplified by the current litigation seeking to invalidate President Obama's most recent recess appointments. This Note examines the varied interpretations of the Clause, the current litigation and potential dispositions, the increasing congressional trend of using the appointments process as an obstructionist device, and the possible state of both the CFPB and the Recess Appointments Clause after litigation. Ultimately, this piece proposes a modified functionalist standard by which the validity of recess appointments should be judged. That is, if the Senate is in a truly functional recess for a period of longer than three days, then the President should be able to make a valid recess appointment. Additionally, this three-day rule can be broken in the event of an emergency that renders the Senate unable to advise and consent to a nominee at a time when a recess appointment is necessary for the uninterrupted functioning of the government.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67986201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so-called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Courts are split on whether to interpret this holding as effecting a change to the collateral consequences rule, and more specifically, the definition of direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla.
{"title":"A Game-Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims","authors":"Joanna Rosenberg","doi":"10.2139/SSRN.2343238","DOIUrl":"https://doi.org/10.2139/SSRN.2343238","url":null,"abstract":"The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so-called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions.In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Courts are split on whether to interpret this holding as effecting a change to the collateral consequences rule, and more specifically, the definition of direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2343238","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68123513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-01-01DOI: 10.1093/acprof:oso/9780199301058.003.0009
Gillian E. Metzger, Trevor W. Morrison
Every American law student learns that there is a difference between a statute’s meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; “[a]ny theory of statutory interpretation is at base a theory about constitutional law.”1 Moreover, some specific rules of statutory interpretation can themselves be understood as modes of constitutional implementation. National Federation of Independent Business v. Sebelius2 (NFIB)—and, in particular, the constitutionality of the Affordable Care Act (ACA)’s “individual mandate” under the tax power—is a prime example of constitutional and statutory intertwining. The crux of the tax question in the case was whether Congress permissibly exercised its tax power when it enacted the individual mandate. This was a question of both statutory meaning and constitutional validity: Was the mandate permissibly understood to impose a tax, and did it represent a constitutional exercise of Congress’s tax authority? According to some—including, critically, Chief Justice Roberts—the tax power cannot be used to command individuals.3 In the Chief Justice’s view, Congress can tax an otherwise lawful action or failure to act, but it cannot use its tax power to enforce a command that individuals act or not act in a particular way. Under that standard, the mandate could be upheld under the tax power only if it could be interpreted as taxing the decision not to purchase insurance without rendering that
{"title":"The Presumption of Constitutionality and the Individual Mandate","authors":"Gillian E. Metzger, Trevor W. Morrison","doi":"10.1093/acprof:oso/9780199301058.003.0009","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199301058.003.0009","url":null,"abstract":"Every American law student learns that there is a difference between a statute’s meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; “[a]ny theory of statutory interpretation is at base a theory about constitutional law.”1 Moreover, some specific rules of statutory interpretation can themselves be understood as modes of constitutional implementation. National Federation of Independent Business v. Sebelius2 (NFIB)—and, in particular, the constitutionality of the Affordable Care Act (ACA)’s “individual mandate” under the tax power—is a prime example of constitutional and statutory intertwining. The crux of the tax question in the case was whether Congress permissibly exercised its tax power when it enacted the individual mandate. This was a question of both statutory meaning and constitutional validity: Was the mandate permissibly understood to impose a tax, and did it represent a constitutional exercise of Congress’s tax authority? According to some—including, critically, Chief Justice Roberts—the tax power cannot be used to command individuals.3 In the Chief Justice’s view, Congress can tax an otherwise lawful action or failure to act, but it cannot use its tax power to enforce a command that individuals act or not act in a particular way. Under that standard, the mandate could be upheld under the tax power only if it could be interpreted as taxing the decision not to purchase insurance without rendering that","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60650019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We track the rise of the cosmopolitan lawyer during the main period of globalization through the experience of an early partner in Baker & McKenzie, the world’s largest and most global law firm. The method is based on oral history. The paper considers two case studies in counseling and advising illustrating the role of the lawyer and clients in the construction of complex deals. In addition, we examine the role of education, career, and cosmopolitanism.This is the final version of the paper.
{"title":"Becoming a Cosmopolitan Lawyer","authors":"J. Flood, Peter D. Lederer","doi":"10.2139/SSRN.1949886","DOIUrl":"https://doi.org/10.2139/SSRN.1949886","url":null,"abstract":"We track the rise of the cosmopolitan lawyer during the main period of globalization through the experience of an early partner in Baker & McKenzie, the world’s largest and most global law firm. The method is based on oral history. The paper considers two case studies in counseling and advising illustrating the role of the lawyer and clients in the construction of complex deals. In addition, we examine the role of education, career, and cosmopolitanism.This is the final version of the paper.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67808924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Parents and children whose legal relationships derive from state adoption judgments face uncertainty when they travel across state lines. State officials have denied out-of-state adoptive parents revised birth certificates, which recognize their status as legal parents in their child’s birth state, because the parents would be statutorily unable to adopt in that state. Various U.S. Courts of Appeals have disagreed as to whether, and to what extent, the Full Faith and Credit Clause in Article IV of the Constitution requires that state executive officials recognize out-of-state rights. Circuits also differ as to whether the Full Faith and Credit Clause confers an individual right for purposes of 42 U.S.C. § 1983 for parents alleging a violation of the Clause. The divergent opinions result from conflicting interpretations of the force and scope of the Full Faith and Credit Clause, distinctions between recognition and enforcement of out-of-state rights, and the varying views of the Clause’s balance of state policy interests and federal unity imperatives. This Note argues that the language, history, and purpose of the Full Faith and Credit Clause demonstrate that the Clause requires states — including both judicial and executive officers — to give meaningful recognition to judicially established rights. It concludes that the denial of revised birth certificates to out-of-state adoptive couples violates the Full Faith and Credit Clause’s mandate to meaningfully recognize and equally enforce out-of-state judgments.
{"title":"E Pluribus Unum? The Full Faith and Credit Clause and Meaningful Recognition of Out-of-State Adoptions","authors":"Pamela K. Terry","doi":"10.2139/SSRN.2017812","DOIUrl":"https://doi.org/10.2139/SSRN.2017812","url":null,"abstract":"Parents and children whose legal relationships derive from state adoption judgments face uncertainty when they travel across state lines. State officials have denied out-of-state adoptive parents revised birth certificates, which recognize their status as legal parents in their child’s birth state, because the parents would be statutorily unable to adopt in that state. Various U.S. Courts of Appeals have disagreed as to whether, and to what extent, the Full Faith and Credit Clause in Article IV of the Constitution requires that state executive officials recognize out-of-state rights. Circuits also differ as to whether the Full Faith and Credit Clause confers an individual right for purposes of 42 U.S.C. § 1983 for parents alleging a violation of the Clause. The divergent opinions result from conflicting interpretations of the force and scope of the Full Faith and Credit Clause, distinctions between recognition and enforcement of out-of-state rights, and the varying views of the Clause’s balance of state policy interests and federal unity imperatives. This Note argues that the language, history, and purpose of the Full Faith and Credit Clause demonstrate that the Clause requires states — including both judicial and executive officers — to give meaningful recognition to judicially established rights. It concludes that the denial of revised birth certificates to out-of-state adoptive couples violates the Full Faith and Credit Clause’s mandate to meaningfully recognize and equally enforce out-of-state judgments.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67855589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The President is correct that marriage historically has been the province of the states. But that fact hardly insulates state marriage laws from equal protection challenges, as Loving v. Virginia makes clear. And that makes sense, for the Fourteenth Amendment reaches all state laws, regardless of their subject matters. Specifically, modern judicial doctrine “federalize[s]” and makes “a national issue” of the question of same-sex marriage, at least insofar as it subjects all state laws to some level of equal protection scrutiny. This fact about modern constitutional doctrine leaves the constitutional law professor-turned-President on the horns of a dilemma. He cannot simultaneously conclude that DOMA is unconstitutional under existing equal protection doctrine and yet also imagine that the states may constitutionally refuse to permit or recognize same-sex marriage. If federal laws should be subject to heightened scrutiny when they treat same-sex marriage differently from heterosexual marriage, then so must state laws that deny recognition for, or bar, same-sex marriages. Moreover, it is almost certain that the heightened scrutiny the President favors would lead to the wholesale invalidation of those state laws. In other words, the Obama Administration’s argument against DOMA, if applied to state laws, should generate nationwide uniformity. Each and every state will have to recognize same-sex marriages, at least so long as they recognize opposite-sex marriages. The President’s constitutional contortions cast doubt on the wisdom of a scheme where the Chief Executive may make independent constitutional determinations and act upon them, including declining to defend the constitutionality of certain federal laws. However much this critique may be true as applied to President Obama and same-sex marriage, one should not expect perfection from Presidents. This is not to excuse the President’s same-sex marriage contortions. It is only meant to suggest that when it comes to constitutional interpretation, each of us lives in a glass house. However imperfect any particular President might be, the institutional design question is whether the system of constitutional defense works best with the presidency actively defending the Constitution. If the system is better with active presidential involvement, as a supplement to judicial review and other protective mechanisms, it does not matter much that presidential defense measures, by themselves, are imperfect.
总统说得对，婚姻历来是各州的事。但正如Loving v. Virginia案所表明的那样，这一事实很难使州婚姻法免受平等保护的挑战。这是有道理的，因为第十四条修正案适用于所有州的法律，无论其主题是什么。具体来说，现代司法学说将同性婚姻问题“联邦化”，并使之成为“全国性问题”，至少就其将所有州的法律置于某种程度的平等保护审查之下而言。现代宪法学说的这一事实使这位由宪法学教授转变为总统的人陷入了两难境地。他不能同时得出结论，在现有的平等保护原则下，《捍卫婚姻法案》是违宪的，但同时又想象各州可能在宪法上拒绝允许或承认同性婚姻。如果联邦法律在区别对待同性婚姻和异性婚姻时应该受到更严格的审查，那么拒绝承认或禁止同性婚姻的州法律也必须如此。此外，几乎可以肯定的是，总统支持的加强审查将导致这些州法律的全面失效。换句话说，奥巴马政府反对《捍卫婚姻法案》的论点，如果适用于州法律，应该会在全国范围内形成统一。每个州都必须承认同性婚姻，至少在他们承认异性婚姻的前提下。总统对宪法的曲解使人怀疑行政长官可作出独立的宪法决定并据此采取行动，包括拒绝为某些联邦法律的合宪性辩护的方案是否明智。无论这种批评在多大程度上适用于奥巴马总统和同性婚姻，人们都不应该期望总统完美。这并不是要为总统在同性婚姻问题上的扭曲辩解。这只是在暗示，当涉及到宪法解释时，我们每个人都生活在玻璃房子里。无论任何一位总统有多么不完美，制度设计的问题是，在总统积极捍卫宪法的情况下，宪法捍卫体系是否最有效。如果总统积极参与，作为司法审查和其他保护机制的补充，这一制度更好，那么总统防御措施本身的不完善就没有多大关系。
{"title":"Missing Links in the President’s Evolution on Same-Sex Marriage","authors":"S. Prakash","doi":"10.2139/ssrn.2857307","DOIUrl":"https://doi.org/10.2139/ssrn.2857307","url":null,"abstract":"The President is correct that marriage historically has been the province of the states. But that fact hardly insulates state marriage laws from equal protection challenges, as Loving v. Virginia makes clear. And that makes sense, for the Fourteenth Amendment reaches all state laws, regardless of their subject matters. Specifically, modern judicial doctrine “federalize[s]” and makes “a national issue” of the question of same-sex marriage, at least insofar as it subjects all state laws to some level of equal protection scrutiny. This fact about modern constitutional doctrine leaves the constitutional law professor-turned-President on the horns of a dilemma. He cannot simultaneously conclude that DOMA is unconstitutional under existing equal protection doctrine and yet also imagine that the states may constitutionally refuse to permit or recognize same-sex marriage. If federal laws should be subject to heightened scrutiny when they treat same-sex marriage differently from heterosexual marriage, then so must state laws that deny recognition for, or bar, same-sex marriages. Moreover, it is almost certain that the heightened scrutiny the President favors would lead to the wholesale invalidation of those state laws. In other words, the Obama Administration’s argument against DOMA, if applied to state laws, should generate nationwide uniformity. Each and every state will have to recognize same-sex marriages, at least so long as they recognize opposite-sex marriages. The President’s constitutional contortions cast doubt on the wisdom of a scheme where the Chief Executive may make independent constitutional determinations and act upon them, including declining to defend the constitutionality of certain federal laws. However much this critique may be true as applied to President Obama and same-sex marriage, one should not expect perfection from Presidents. This is not to excuse the President’s same-sex marriage contortions. It is only meant to suggest that when it comes to constitutional interpretation, each of us lives in a glass house. However imperfect any particular President might be, the institutional design question is whether the system of constitutional defense works best with the presidency actively defending the Constitution. If the system is better with active presidential involvement, as a supplement to judicial review and other protective mechanisms, it does not matter much that presidential defense measures, by themselves, are imperfect.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：