Category: General Law


Civil Marriage Equality in the District of Columbia?

During my guest stint on Concurring Opinions, I plan to take a look at several  law and policy issues that were key parts of President Obama’s agenda during his campaign and see where matters stand, as we near the one year date since his historic election.  One such issue is civil rights — as a candidate, Barack Obama  supported full civil unions and federal rights for LGBT couples. Already, the landscape across the United States in late 2009 looks quite different from late 2008, as state legislatures enact and expand domestic partnership laws and some states move  (sometimes spurred by a judicial ruling,  but sometimes on the initiative of the legislature) from civil unions or domestic partnerships to civil marriage. Yesterday, District of Columbia  City  Council member David Catania, with the support of nine other Council members, introduced a bill to extend civil marriage to same-sexcouples. Media reports about the bill indicate that some members of Congress may try to prevent the bill from becoming a law when Congress exercises its review power. However, other members of Congress indicate that with all that is on Congress’s plate, it is unlikely members would press for a joint resolution  to block the law and, further, the District should be allowed to decide for itself. 

In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons,  that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.

Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”” should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.

A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage — a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other.  Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that  civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law,  evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.


Making the Internet Safer, the NSA Way

113px-NSA_Great_Seal_bugSecuring our networked environment is both crucial and difficult.  Six months ago, President Obama declared his Administration’s commitment to protect cyberspace from sabotage of all stripes.  For the President, the rise of online theft, electronic espionage, and military-related cyber assaults necessitated the appointment of a cyber czar to protect our cyber “national assets.”  The President has tried to fill that spot: Shane Harris of National Journal explains that “more candidates had declined the job than were still in the running for it.”  And despite our failed efforts at CoOp to recruit Orin Kerr for the job, the cyber czar position remains empty.

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: “There is no regime for us to work within to respond to cyberattack.  We are in a place where technology has long outstripped policy–let alone law–in term of what’s available.  We are going to have to rely on heroism instead of a plan.”  If Hayden has it right, it is no wonder that no one wants the job.

Nonetheless, the Administration may have already charted its path, one that entrusts the National Security Agency with protecting cyberspace.  According to the National Journal, Lt. General Keith B. Alexander, the NSA’s director, has been “setting up the central nervous system in the government’s campaign to defend cyberspace.”  The NSA will now, unlike the past, help oversee the networks of civilian government and privately-owned, criticial infrastructure (dams, railroads, hospitals, banks, food industry, hotels, telecommunications, postal, shipping, retail, transportation, and well everything else).  This is true even though DHS is charged with defending civilian networks and coordinating private sector protection.  Homeland Security Security Secretary Janet Napolitano said that NSA will provide DHS “technical assistance” on this issue.  In short, DHS will rely on the NSA for the tools, expertise, and resources to protect cyberspace.

So the NSA apparently will be overseeing and securing private networks, the same NSA that engaged in wholesale warrantless surveillance of Americans after 9/11 (and the agency that monitored telegrams coming in and out of the United States to detect individuals with communist ties in the 1950s and 1960s)?  Congress has, of course, limited the NSA’s warrantless wiretapping and the President has promised us greater transparency in government decision-making.  Nonetheless, NSA’s oversight over privately-owned systems and wholesale access to their contents raises serious concerns.  And because the NSA will direct these efforts in the name of national security and intelligence, little transparency will be forthcoming.  On another note, the question remains whether it was agency turf-war antics that led to Melissa Hathaway’s decision to leave government–she was the DHS official and most senior cyber expert in the White House who had been a leading candidate for the cyber czar post.  At the time of her resignation, Hathaway told the Washington Post that she “wasn’t willing to continue to wait any longer,” and she wasn’t “empowered” to make any changes.


First Monday

It’s the first Monday in October, the day when the Supreme Court begins its annual
Term.  You can enjoy previews from Adam Liptak of the NYT and Nina Totenberg on NPR.

Totenberg’s piece reveals the amusing distress the Justices are feeling over the appointment of a new Justice.  “You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else,” says Chief Justice Roberts.  “We had a long run together. And you get comfortable with that, and then it changes,” according to Clarence Thomas.

Oh, the poor bubbies!  Life must be tough when all you have is a lifetime appointment to the nation’s highest court.  I mean, a few times in your career, you have to put up with a new Justice!  Imagine that.  Maybe we should bring them tea and cookies and their favorite blanket.

The hottest case on the new docket (apart from the campaign finance case that was specially argued in September) is probably the Chicago gun case, which will test whether the recent ruling in District of Columbia v. Heller that the Second Amendment creates an individual right to bear arms applies to the states as well as the federal government. 

It will be interesting to see how this case plays out, because it tugs in the opposite direction from the usual ideological lines.  A ruling for the plaintiff would require holding that the Second Amendment, which originally applied only to the federal government, is “incorporated” into the Fourteenth Amendment and so applies against the states as well.  You would expect the conservatives, who normally believe in states rights, to be the ones most opposed to incorporation, and the liberals, who are more amenable to expansive federal power, to be for it.  But somehow I’m guessing that’s not how it will turn out.

As I observed in some previous posts on the Heller case, the same could be said of Heller itself.  Liberals are usually more amenable to ruling in favor of individual rights and conservatives more to ruling in favor of the government — but not when it comes to guns.  Instead, we see a drearily predictable ideological lineup, and not even based on general ideology, but on the ideology of the precise issue.  It will be interesting to see if even one of the Justices can vote against their ideological predilictions on this new case.


Fin Reg Events

Policy formulation benefits from academic knowledge, often showcased at timely conferences, and there have been plenty of contributions this year and last concerning financial regulation reform amid the economic crisis. Late last fall, I posted a list of conferences pending then, including GW Law’s Panic of 2008 Conference, which will result in a book to be edited by my GW Law colleagues, Larry Mitchell and Art Wilmarth.

This season, there are several noteworthy forums, including at Pitt and Seton Hall Law Schools and, just two weeks ago, an Institute for Law and Economic Policy conference in which I participated, featuring Joseph Stiglitz (Columbia), Kenneth Feinberg (US special compensation master), Lucien Bebchuk (Harvard), Charles Elson (Delaware), Jill Fisch (Penn), Harvey Goldschmid (Columba), Frank Partnoy (San Diego), and a dozen others.

At GW Law, we will host a follow-up to our Panic of 2008 conference on Friday November 6, co-sponsored by ILEP, featuring academic contributions from Jim Cox (Duke), Don Langevoort (Georgetown) and Art Wilmarth (GW), plus participants from Treasury and the SEC and Senate and House Committees having jurisdiction and from the media (including Ed Andrews, New York Times). Discussion will concentrate on the emerging legislative agenda, along with enforcement (federal, state and private).

A notable interactive on-line interchange will by hosted by Steven Davidoff (University of Connecticut), using his platform as editor of the New York Times on-line deal forum. The description suggests a provocative discussion showing skepticism about standard interpretations of the crisis and pending prescriptions for reform. Notable participants include David Zaring (Penn/Wharton, co-author of an article with me on the subject, forthcoming in GW Law Review), Joseph Grundfest (Stanford), David Skeel (Penn) and Lynn Stout (UCLA).

As the Administration and Congress write legislation, ideas and input from events like these, seeming to be on the sidelines, can be important and useful. Tune in.


“You see then that a man is justified by works, and not by faith alone.” James 2:24

When I heard these words at mass a few weeks ago, my heart soared, because it was the perfect lead-in for a sermon about the urgency of health care reform, based upon Christian notions of distributive justice and social solidarity seeking our collective good.  The punch line won’t surprise you – Not a mention of health care.    Why aren’t  progressives of faith, whether in the pulpit or in the well of Congress, not employing every persuasive tool to advance healthcare reform as an imperative not only for the least among us but for us all?

Evoking religious values has long been effective in achieving social transformation.  This tradition of social reformers, clergy and politicians joining together, and invoking faith to obtain fundamental change experienced its apex during the abolition, anti-Vietnam, and civil rights movements.  Progressives abandoned the device of transcendent vision almost simultaneous with Conservatives adopting this successful script of shared values and worldview based upon God’s will.  The religious right employs Christianity to resist protections against anti-discrimination laws  — the Christian Coalition is currently mobilizing on a bill that would give gays and transsexuals federal protection in the workplace — and to support war — President George Bush famously explained to foreign leaders that God told him to invade Iraq and Afghanistan. 

Televangelists employ prophetic language to preach against social evils, which are, in their view, largely perpetrated by, well, Democrats.  But the prophetic vision also embraces “a vision of a more equitable society characterized by the virtues of solidarity and compassion and of justice inspired by the love of God and neighbor.” (Lisa Sowle Cahill)  Why don’t we hear our elected representatives cry that “respect for life” and “human dignity” compel universal access to healthcare?

The left has ceded public policy grounded in faith to the right.  It can’t be because nobody on the left prays.  A Pew Survey reports that 84% of respondents self-identify affiliation with a specific religious denomination. I interpret that as meaning that progressives go to church and temple too. A Census Bureau 2001 American Religious Identification Study concluded that 76.7% of the U.S. adult population of 208 million is Christian.  Democratic presidential candidates emphasize their faith (Obama, Hillary Clinton, Bill Clinton, Jimmy Carter)  when they run, but as soon as they take office they revert to dry policy arguments for social goals that meet with passionately poetical threats of sin and damnation from the right.  Are Democrats unable to invoke a competing interpretation of faith to inspire outrage that 50 million people living in the United States are uninsured?  Such a position could find more persuasive biblical support than the position that “government takeover” of healthcare is unchristian.  Progressives were likewise paralyzed in the “death panel” debate, with no politician effectively arguing that the over-medicalization of death seemed an ironic position for people of faith who aspire to an after-life with God. 

Many Progressives of faith are organizing to support health care, but Democratic politicians have left behind the rich tradition of invoking faith to achieve social reform.   Nobody even has to use the word God – like Susan Dentzer of Health Affairs, we can simply demand a debate about whether our system is ethical and just.


This is a cross-post with Health Reform Watch


Samuelson and Sheffner Debate the Constitutionality of Copyright Statutory Damages


Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases

In successive months during the summer of 2009, the music labels won two monstrous jury verdicts for willful copyright infringement against two peer-to-peer file sharers. In June, a Minneapolis jury found single mother Jammie Thomas-Rasset liable for $1.92 million for downloading and sharing twenty-four songs on KaZaA’s file-sharing network. One month later, a Boston jury ordered college student Joel Tenenbaum to pay $675,000 for downloading and sharing thirty songs in the same manner. Neither jury made a finding about the damage caused to the music labels by the defendants’ activities. Rather, both awards were based on the Copyright Act’s range of statutory damages of $750 to $150,000 per work—available to those who register their works prior to infringement.

In this month’s PENNumbra debate, Professor Pamela Samuelson and Ben Sheffner discuss whether such “whopping” statutory damage awards are constitutional. In her Opening Statement, Samuelson argues that while not all statutory damage awards—or even all those extracted from peer-to-peer file sharers—are unconstitutional, it is “difficult to square [the verdicts from this summer] with Congressional intent or with the Supreme Court’s due process jurisprudence.” Relying on the “guideposts” established by the Court in BMW of N. Am., Inc. v. Gore to judge punitive damage awards, Samuelson lays out the case for reducing the “grossly excessive” jury verdicts.

Check back weekly as the debate unfolds.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.


PENNumbra publishes responses to The Elusive Quest for Global Governance Standards


PENNumbra‘s featured works are now available at

This issue contains responses to The Elusive Quest for Global Governance Standards by Lucian A. Bebchuk & Assaf Hamdani.

In The Elusive Quest for Global Governance Standards, Professors Lucian Bebchuk and Assaf Hamdani argue that the currently available metrics for assessing the governance of public companies around the world suffer from a basic shortcoming. The impact of many key governance arrangements, they argue, depends considerably on companies’ ownership structure: measures that protect outside investors in a company without a controlling shareholder are often irrelevant or even harmful when it comes to investor protection in companies with a controlling shareholder, and vice versa. Consequently, governance metrics that purport to apply to companies regardless of ownership structure are bound to miss the mark with respect to one or both types of firms. In particular, Bebchuk and Hamdani attempt to show that the influential metrics used extensively by scholars and shareholder advisers to assess governance arrangements around the world—the Corporate Governance Quotient (CGQ), the Anti-Director Rights Index, and the Anti-Self-Dealing Index—are inadequate for this purpose. They suggest that going forward, the quest for global governance standards should be replaced by an effort to develop and implement separate methodologies for assessing governance in companies with and without a controlling shareholder. The professors identify the key features that these separate methodologies should include and discuss how to apply such methodologies in either country-level or firm-level comparisons.

In American Corporate Governance Indices as Seen from a European Perspective, Professor Klaus Hopt provides his insights from a continental European perspective in response to Bebchuk and Hamdani. Overall, Hopt believes the article is a “great contribution that may . . . open up a new legal and politics-of-law discourse” on the measures of corporate governance. Despite its promise, however, Hopt offers several differences in the economies of the United States and continental Europe that warrant closer consideration in Bebchuk and Hamdani’s duel set of metrics. These unique features of the European system—such as the increased number of companies with controlling shareholders or the larger institutional presence of labor on company boards—lead Hopt to question several aspects of Bebchuk and Hamdani’s analysis and recommendations. More generally, he wonders if shareholder structures are “the only or even the major criterion for differentiation” between the various corporate governance metrics when compared to the “securities-regulation regime and the financial system of the relevant country.” Finally, Hopt cautions the reader to remember that however these metrics evolve, they are but one tool of many for “basing comparative, investment, and even policies decisions” in the world of corporate governance.

Professor Vikramaditya Khanna offers his thoughts on Bebchuk and Hamdani’s article in Corporate Governance Ratings: One Score, Two Scores, or More? Khanna begins by offering a succinct summary of the Bebchuk and Hamdani’s recommendations and capturing the governance practices that the authors suggest matter most to companies with (CS) and without (NCS) controlling shareholders. Next, he considers whether these differences are supported in the extant scholarship. He considers anecdotal and emprical data from established and emerging markets and concludes that Bebchuk and Hamdani’s distinctions find “considerable support” in the literature. Notwithstanding this support, Khanna turns to consider whether the CS-NCS distinction is the optimal one to organize the professors’ governance rankings. Although he notes several other potential considerations, he ultimately offers a solution that would retain the simplicity and usefulness of Bebchuk and Hamdani’s CS-NCS distinction while providing insight into other salient country- or firm-specific distinctions through subsidiary rankings. Lastly, Khanna offers suggestions for next steps for implementing the recommendations of The Elusive Quest for Global Governance Standards.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.


The new UK Supreme Court

On 1 October 2009, the Supreme Court of the UK opened for the first time. Located in Parliament Square, the new court replaces the (Appellate Committee of the) House of Lords,400px-UK_Supreme_Court_badge which had previously functioned as the highest court in the UK.

The Court consists of twelve Justices (although one is yet to be appointed), and is headed by the first President of The Supreme Court, Lord Phillips of Worth Matravers. (Aside: I have always been a little hazy as to why certain Law Lords get the cool place-name-appendage and others don’t. Apparently, as now UK Supreme Court Justice, Baroness Hale of Richmond, explains (around the 15 minute mark), it is tied to the need for every member of the House of Lords to have a unique name.)

The appellate role of the House of Lords had evolved over hundreds of years;  full-time professional judges had operated within it for more than 130 years. The replacement of the Appellate Committee of the House of Lords with the Supreme Court was announced in 2003, and this change was implemented by the Constitutional Reform Act 2005.

The opening of the new Supreme Court represents more than just a change in name and premises: it is a significant constitutional milestone. According to Lord Phillips of Worth Matravers, it is about giving ‘formal effect to an important constitutional principle — the separation of powers’. Indeed it is possible (as suggested here), that the new UK Supreme Court may view its institutional position in a somewhat different light, and may be more willing to flex its judicial muscle against the government. Interesting times await.

Image: wikimedia commons, Martin23230, Creative Commons Attribution ShareAlike 3.0 License


Antitrust in Obamaland

Antitrust enforcement was one area where most observers expected significant changes from the Bush years, particularly at the Antitrust Division of the Justice Department. For the past eight years, the Antitrust Division had vigorously prosecuted cartels, but had not been active in monopolization or merger enforcement. In addition to bringing relatively few cases in these areas, the Division had filed a number of amicus briefs in support of defendants, opposed a petition for certiorari sought by its sister agency the Federal Trade Commission, and issued a number of reports and policy recommendations that restricted the reach of the antitrust laws or imposed significant burdens on private plaintiffs. During this same period, the FTC proved to be more active in the competition area, particularly in the health care and intellectual property fields which suggests that the FTC will have a greater continuity in the competition area despite key changes at the Commissioner and staff levels.

The key officials in the Obama administration came into the antitrust agencies promising change. Christine Varney, the new head of the Antitrust Division, gave a speech in her early days promising more vigorous enforcement and hearkening back to the days of Thurman Arnold during the latter half of the New Deal. At the same time, she repudiated a highly restrictive report on monopoly power issued during the waning days of the prior administration issued by the Justice Department alone because a majority of the FTC had refused to endorse. In addition, the Division has reversed policy and filed an amicus brief in support of plaintiffs in a key Supreme Court case involving the pharmaceutical industry. Most recently, the Justice Department and the FTC jointly announced a new initiative to revisit the Merger Guidelines of the 1990s used by both agencies to decide which mergers and acquisitions to challenge on competition grounds. Read More


Introducing Guest Blogger Linda McClain

09-1803-MCCLAIN-013I am delighted to introduce Professor Linda McClain who will be guest blogging with us in October.  Linda is the Paul M. Siskind Research Scholar Professor of Law at Boston University School of Law.  Her scholarship addresses the respective roles of families, other institutions of civil society and of government in fostering citizens’ capacities for democratic and personal self-government.  Her work has engaged with prominent communitarian, civic republican and feminist critiques of liberal legal and political theory and offered a reconstructive liberal feminist approach to such matters as privacy, family and marriage, reproductive issues and welfare law.  Her work also addresses sex equality as a legal and constitutional commitment and public value, the responsibility of government to promote equality, and societal tensions over equality and its relationship to other values. She has published numerous articles in law reviews and books and spoken in many academic and public settings. Linda has also organized major conferences and symposia.

Before joining the faculty of Boston University School of Law in Fall 2007, Linda was the Rivkin Radler Distinguished Professor of Law at Hofstra Law School, where she was also co-director of the Institute for the Study of Gender, Law, and Policy. Prior to entering the legal academy, she practiced litigation at Cravath, Swaine & Moore. A former faculty fellow at the Harvard University Center for Ethics and the Professions, she has been a visiting professor of law at Harvard, the University of Pennsylvania and the University of Virginia. Linda is on the executive committee of the Association of American Law Schools Section on Family Law and Law and Communication Studies, and is a member of the Council on Contemporary Families. She is also on the advisory board of the Georgetown Journal of Gender and Law and the Feminist Sexual Ethics Project.

Linda is currently working on several book projects, including Rights and Irresponsibility (with BU Law Professor James Fleming), Why Is Equality So Hard?: Men, Women, and Social Cooperation, The Place of Associations, and an anthology (with Daniel Cere) on competing paradigms of parenthood.

Her works include:

Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press, 2009) (co-edited with Joanna Grossman)

The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press 2006)

Supreme Court Justices, Empathy, and Social Change: A Comment on Lani Guinier’s Demosprudence Through Dissent, B.U. Law Review (forthcoming 2009).

Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?, 77 Univ. Missouri-Kansas City Law Review 416 (2008).

Unleashing or Harnessing Armies of Compassion?: Reflections on the Faith-Based Initiative, 39 Loyola Chicago Law Review 361 (2008).