Law Commons^™

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Closet Case: Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren Hutchinson

Darren L Hutchinson

This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay lesbian, bisexual, and transgender individuals.

Ultra Vires Lives! A Stakeholder Analysis Of Corporate Illegality (With Notes On How Corporate Law Could Reinforce International Law Norms), Kent Greenfield

Kent Greenfield

This paper argues that a remaining vestige of the ultra vires doctrine sets off illegal activities as "beyond the power" of corporations. Though largely unnoticed and unexamined until now, this part of the doctrine has been retained because none of the important corporate stakeholders has an interest in authorizing the corporation and its managers to commit illegal acts. From an ex ante perspective, the principal stakeholders in the corporate contract would want the corporation and its management to forego illegalities as a way to increase the value of the firm. Any of the stakeholders would be a potential victim of …

Licensing Speech: The Case Of Vanity Plates, Marybeth Herald

Marybeth Herald

Vanity license plates qualify as protected speech under the First Amendment, and denying plate requests because of their content contradicts traditional principles of free speech. State motor vehicle departments are almost as creative as applicants when it comes to ferreting out offensive license plate requests through the use of computer programs and linguists. Offensiveness, however, remains an elusive concept to capture and often lies in the eyes of a single viewer. When the government takes on the role of arbiter of good taste, it leads to arbitrary decision making and chaotic results.

Under traditional First Amendment doctrine, vanity license plates …

Identity Crisis: Intersectionality, Multidimensionality, And The Development Of An Adequate Theory Of Subordination, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Partiality, Julie Nice

Julie A. Nice

This essay is the introduction for a Symposium on Class in LatCrit: Theory and Praxis in a World of Economic Inequality. Professor Nice describes the symposium papers (by Kendal Broad, Lisa Sun-Hee Park, Athena Mutua, and Laura Padilla) as applying various critical tools to examine how scholars study poverty and especially how the construct of “the feminization of poverty” isolates gender while leaving out other experiences of race, immigration status, sexual orientation, parental status, age, ability, and class. While she argues that the feminization of poverty construct itself emerged as a critique of how gender had been ignored in the …