This writing is the Keynote Speech delivered at the Stetson Law Review’s April 2018 symposium on the Author’s book, Animus: A Brief Introduction to Bias in the Law (2017). The speech makes the case for celebrating the Supreme Court’s embrace of the equal protection “animus” doctrine. It argues that the doctrine provides courts with a vehicle by which they can respond directly and candidly to some of the maladies currently afflicting American society and politics. It argues that it can play this role in a way that more closely connects modern equal protection law to its historical aspirations. At the same time, it cautions that animus should not become an all‐purpose argument for equal protection plaintiffs. Nevertheless, when confined to its proper sphere, animus doctrine can constitute a positive contribution to the evolution of American equality law. The speech argues for continued scholarly engagement with the animus idea, to help create a doctrine that can both realize this potential but also remain limited to its appropriate sphere.
In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that laws grounded in animus are categorically unconstitutional and should be invalidated on that basis—regardless of whether they might be subject to invalidation on other grounds as well. Responding especially to Professor William D. Araiza’s elaboration of the Court’s animus doctrine, this Essay contends that the doctrine is sound as a matter of constitutional principle but highly problematic as a matter of judicial prudence. As the Author explains, there are difficult questions surrounding the precise meaning of animus, the issue of mixed motives, and the relationship between animus and traditional religious beliefs. Moreover, judicial declarations of animus exacerbate the political‐cultural divisions that infect contemporary American politics, damaging the democratic system that the Constitution is designed to protect. Accordingly, the Author concludes that animus should be a doctrine of last resort, to be invoked only when there is no viable and preferable doctrinal alternative.
Animus doctrine has arrived. Once rarely mentioned as an explanation for why rational basis claims succeed under the Equal Protection Clause, today leading scholars have situated animus doctrine as key to rational basis litigants’ success. This characterization has quickly taken on the character of constitutional “common sense,” becoming a widely shared view of how rational basis plaintiffs win. Thus, a showing of animus has been situated as the primary, or perhaps exclusive, way that those outside of the heightened tiers can win claims.
This Article argues that this animus‐focused understanding of rational basis review is both descriptively inaccurate and substantively problematic. For decades, social movements have made use of rational basis review to generate space for constitutional change where the doctrines of heightened scrutiny are unavailable to them. Very few of these cases have involved the application of so‐called “animus” doctrine—and many arguably would not have been successful were a showing of animus required. Nor is such a showing compelled by the Supreme Court’s rational basis precedents, which remain messy, indeterminate, and inconsistent.
Thus, the scholarly animus project—if taken seriously as doctrine—poses real and unnecessary risks to the ways that social movements have relied on rational basis review to effectuate constitutional change. The Article concludes by discussing the Supreme Court’s decision in Trump v. Hawaii, and describing why it should be seen as a warning sign of what an animus‐centric Equal Protection jurisprudence could become.
Within the past two years, two circuit courts overruled decades of precedent that did not include sexual orientation discrimination as Title VII sex discrimination. The courts are starting to address the fact that people can theoretically marry whoever they want on Saturday but have no assurance that they will not be fired from their job on Monday because the employer does not like the fact that the employee married someone of the same sex. In 2015, the Equal Employment Opportunity Commission (EEOC) determined that sexual orientation discrimination is Title VII sex discrimination in Baldwin v. Foxx. In 2017, the Seventh Circuit, sitting en banc, recognized sexual orientation discrimination as sex discrimination under Title VII in Hively v. Ivy Tech Community College. Then in 2018, the Second Circuit, sitting en banc, followed Chief Judge Katzmann’s concurrence in Christiansen v. Omnicom Group, Inc. to recognize sexual orientation discrimination as Title VII sex discrimination in Zarda v. Altitude Express. This Article examines the three cases, Baldwin, Hively, and Christiansen, and the theories recognized by the courts. Prior to recognizing sexual orientation discrimination as a Title VII discrimination, many courts allowed the failure to conform to gender norms theory and associational theory for employment discrimination where sexual orientation often factored into the discrimination. This Article proposes that courts recognize sexual orientation discrimination as sex discrimination under Title VII through deference to the EEOC. However, if unable to convince a court to recognize sexual orientation discrimination as a legal theory for relief, this Article suggest that both the associational theory and failure to conform to gender norms theory based on sexual orientation are avenues for protecting LGBT plaintiffs in employment discrimination cases.
This brief essay responds to written works submitted as part of Stetson Law Review’s April 2018 symposium on the Author’s book, Animus: A Brief Introduction to Bias in the Law (2017). It considers critiques of the Supreme Court’s emerging equal protection “animus” doctrine, and one work that deals more generally with statutory equality rights. This essay finds much to admire in all of these works, including those that critique the animus concept. Nevertheless, this response concludes that animus, as a properly explained but also properly limited doctrine, can play a positive role in equal protection law. In particular, it argues that animus doctrine can provide the vehicle for a candid and direct response to many of the pathologies afflicting contemporary American politics and society. This Response also argues that it can play that role in a way that more tightly connects modern equal protection law to its historical aspirations. For these reasons, it is appropriate both to celebrate animus doctrine but also for scholars to continue studying it, to ensure that it remains confined to its proper sphere.
International tribunals, due to time and resource constraints, are often ill‐equipped to prosecute the hundreds or thousands of perpetrators who have committed heinous crimes in the wake of mass atrocities. As a result, the international criminal justice system often falls short of achieving long‐term justice. This Article argues that it is imperative for leaders of post‐atrocity societies to implement responsive, local justice solutions based on the needs of their particular community—without sole reliance on international criminal prosecutions—to effectively resolve conflict and engender peace. The Author discusses the Restorative Justice and Transitional Justice models as alternatives to prosecution. Due to the competing aims of reckoning with heinous crimes that have been committed, while simultaneously laying a stable foundation for new democratic institutions, post‐atrocity societies must strike a balance between justice and peace.
The number of people in the United States who speak a language other than English has dramatically increased in recent years. Practitioners in America are likely to feel the effects of this growing linguistic diversity during discovery when they encounter documents in a language other than English. The modern‐day practitioner faces a curious ethical dilemma: given the advances in neural machine translation (NMT) technology, is it in their client’s best interest to forego hiring a costly—yet accurate—human translator and instead rely on a faster, cheaper software program that will produce an imperfect—but in most cases sufficient—English translation? When an automated program incorrectly translates a key phrase in a document and the client’s case is negatively impacted, can the practitioner who relied on machine translation technology be held liable in a subsequent malpractice suit?
There is a paucity of legal guidance in the field of written translation. A startling lack of both state and federal regulations leaves the practitioner without much guidance about how to best protect both their clients’ interests and their own. This article explores the history of and recent advances in machine translation as well as potential liability issues which may arise when a lawyer uses machine translation technology to translate client documents into English. This article argues in favor of regulating written translation in a similar manner as oral interpretation and encourages practitioners to employ a hybrid method of document translation which consists of an initial machine translation and subsequent review by a human translator.
When a party breaches a contract, their counterpart typically suffers loss. Contract law redresses this wrong by awarding compensation to return the innocent party to the position they would have been in had the contract been performed correctly. In some anomalous cases, however, the innocent party may instead benefit from the breach, as the founders of McDonald’s did during the famous franchising saga of the 1950s and early 1960s. Contract law is unclear as to how to deal with such cases of “advantageous breach.” This Article examines current approaches to doing so under contract law in both Australia and the United States, and provides practitioners and parties with guidance as to the remedial consequences that may flow from advantageous breaches.
This Article offers possible solutions to the complex question of how to treat failing students in law school, when those students have failed to earn a passing grade in an individual class but still deserve a chance at success. Using information gathered from the Author’s independent survey of 113 law schools countrywide, she breaks down how faculty can use educational psychology to assess the best way to support law students and encourage future success. The Author notes that differing philosophies shape remedial systems at each law school, and suggests that perhaps even institutional pressures from the ABA contribute to how law schools approach student failure. The Author outlines the wide range of approaches law schools might follow and discusses sources of motivation for law schools to choose which approach works best for them, then illustrates current examples of these approaches currently in action. Lastly, this Article analyzes the cause of student failure and how failure can affect students’ future performance. This provides a basis of understanding for which approach will work best for each law school in light of their values and goals.
This Article addresses the increasingly important problem of conflicts between free speech and antidiscrimination claims in commercial or consumer contexts. Based on considerations of freedom and autonomy; marginalization and equality; and of dignity, humiliation, and persecution, this Article draws an important—but not exceptionless—judicial boundary line. On one side of the line are cases in which the speech, whether freely uttered or compelled, occurs either on‐premises or in any other essentially individualized person‐to‐person commercial interactive context. On the other side of the line are cases in any other context, such as when the speech, again either freely uttered or compelled, occurs in typical company mission statements, widely available company advertising and social media posts and tweets, or in company comments in the public square on the issues of the day. On the latter side of the line, otherwise valid free speech claims should, presumptively but not exceptionlessly, prevail.