There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak and are so riddled with exceptions that they amount to little more than sieves. This Article calls attention to two other problems with rape shield laws—problems that can be traced to the very enactment of rape shield laws but that for the most part have remained hidden, unnoticed, and unremarked on. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a virgin, or at least notionally a good girl, and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, which occurs when a rape shield’s message conflicts with preexisting rape scripts: those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The Article sketches out solutions to these specific problems and gestures toward a broader solution to tackle other flaws with rape shield laws. Article | I. Bennett Capers | Page 826 In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of nonwar emergencies. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying exceptions to ordinary constitutional and democratic norms is particularly apparent in governmental restrictions on the flow of its communications in disasters, as limitations on information flow that might be warranted when there are thinking enemies (such as in times of war) are invoked in disaster scenarios lacking such thinking enemies. The extension of wartime transparency exceptionalism into nonthinking-enemy disasters—reflected in both legislation and official rhetoric—risks the illegitimate construction of enemies by government, the unwarranted transformation of public spaces into war zones from which the public can be more easily excluded, and the inappropriate reliance on notions of the “fog of war” to justify communication failures and overbroad access restrictions. Only by consciously disaggregating dissimilar forms of emergencies and removing the rhetoric of war from disaster decisionmaking can the government make appropriate determinations about the provision of information in times of community or national crisis. Article | Lisa Grow Sun & RonNell Andersen Jones | Page 884 Last term in Golan v. Holder, the U.S. Supreme Court upheld the constitutionality of section 514 of the Uruguay Round Agreements Act, which extended copyright protection to millions of foreign works of art, literature, and music previously in the public domain. This decision will likely have a deleterious impact on America’s faltering symphony orchestras. By removing important staples of the symphonic repertoire—including works by Prokofiev, Rachmaninoff, Shostakovich, and Stravinsky—from the public domain, Golan dramatically increases the cost of performing these works. This is because copyright- protected music is more expensive for orchestras to perform for two reasons: The orchestral parts are generally available on a rental-only basis, which is dramatically more expensive than buying the parts, and orchestras must pay public performance license fees to perform such works. Moreover, section 514 has been implemented very inefficiently, making it both challenging and costly for orchestras to determine which works have been restored to copyright and to whom those rights belong. By making it both more difficult and more expensive to perform these works, Golan decreases the ability of U.S. orchestras—which are already facing serious financial difficulties—to perform these works. This Comment argues that decreased dissemination of works restored to copyright under section 514 undermines American copyright law’s purpose of “promot[ing] the Progress of Science and useful Arts.” It further suggests that decreased performance of these works harms society as a whole because decreased dissemination of section 514 works robs society of cultural enrichment and societal benefits associated with involvement with the arts. Comment | Hannah Dubina | Page 950 This Comment challenges the assumption that actions associated with drug addiction can be easily classified as either voluntary or involuntary. As an alternative to this black-and-white distinction, this Comment advances the concept of a semi-voluntary act category to describe more accurately a drug addict’s choice to use drugs. When limited appropriately to drug addicts rather than all drug users, this category provides an avenue for a partial affirmative defense that would result in a verdict of not guilty but responsible. This verdict would more fairly treat drug addicts who commit crimes while intoxicated by reducing the stigma of a finding of guilt and by demanding that the defendant take responsibility for their drug addiction and seek effective treatment. Comment | Patrick Eoghan Murray | Page 1006 Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. This Comment concludes that students may challenge firearms bans in student housing by characterizing student housing as homes for purposes of Second Amendment analysis. Given the close analogy between the homes in Heller and McDonald and certain forms of student housing, these challenges are likely to persuade a court to strike down student housing firearms bans that prohibit the use of firearms in self-defense in students’ homes for violating core Second Amendment protections, especially in cases involving apartment-style student housing. Comment | Michael L. Smith | Page 1046
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Across the country, we see institutions and businesses advocating for the right not to comply with anti-discrimination mandates on the grounds that doing so violates their religious beliefs. Bucolic inns and bakeries close their doors to same-sex couples, businesses seek to deny their workers insurance coverage for contraception, and religiously affiliated schools fire employees because they are unmarried and pregnant. This Essay puts today’s debate about religious exemptions in historical context and addresses the most common arguments proffered in defense of the religious objector.
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By Louise Melling | Volume 60 | Page 248 Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and by Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court's decision in Roe was not the abortion conflict's sole or even its principal cause. When change through adjudication or legislation threatens the status quo, it can prompt countermobilization and backlash. We do not doubt that adjudication can prompt backlash, but we do doubt that adjudication is distinctively more likely than legislation to prompt backlash or that the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement. By Linda Greenhouse & Reva B. Siegel | Volume 60 | Page 240 Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. The heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent’s same-sex partner, during visitation. A gay or lesbian parent’s assertion of constitutional rights has not been an effective response to such efforts. That is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent’s sexual orientation only when there is evidence of an adverse impact on the child. This Essay argues that the nexus test should be replaced with a rule that disallows consideration of a parent’s nonmarital sexual relationship in custody or visitation disputes. The nexus test implies that a child might be uniquely harmed because a parent is gay or lesbian or because a parent has a new unmarried partner. This implication is inappropriate. A court can evaluate a child’s relationship with a significant person a parent has introduced into the child’s life; that evaluation should not turn on whether that person is a spouse or a nonmarital partner. The court can also examine any decision a parent makes that causes harm to a child. It is misplaced to articulate a distinct test for scrutinizing a parent’s relationship with a nonmarital partner. By Nancy D. Polikoff | Volume 60 | Page 226 Professor Jay Silver’s criticism of the reform proposals put forward in Brian Tamanaha’s book Failing Law Schools displays some characteristic weaknesses of American legal academic culture. These weaknesses include a tendency to make bold assertions about the value of legal scholarship and the effectiveness of law school pedagogy, while at the same time providing no support for these asser-tions beyond a willingness to repeat self-congratulatory platitudes about who professors are and what we do. The high costs for our students of the current scholarly expectations at American law schools are clear. What is not clear is whether those costs are worth incurring. Simply asserting that they are because the typical publications of American law faculty supposedly provide valuable critiques of the legal system that have a beneficial effect on the system’s operation does not constitute an ar-gument. Likewise, neither do similarly ungrounded assertions that traditional law school pedagogy teaches law students how to think. By Paul Campos | Volume 60 | Page 214 By looking at the nature of data that may be disclosed by governments, Harlan Yu and David Robinson provide an analytical framework that evinces the ambiguities underlying the term “open government data.” While agreeing with their core analysis, I contend that the authors ignore the enabling conditions under which transparency may lead to accountability, notably the publicity and political agency conditions. I argue that the authors also overlook the role of participatory mechanisms as an essential element in unlocking the potential for open data to produce better government decisions and policies. Finally, I conduct an empirical analysis of the publicity and political agency conditions in countries that have launched open data efforts, highlighting the challenges associated with open data as a path to accountability. By Tiago Peixoto | Volume 60 | Page 200 This Essay shows how LGBT rights advocates successfully transformed civil unions and domestic partnerships from a sign of equality into a marker of inequality. The deployment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift. Constitutional commitments provided the language through which advocates could embrace civil unions and domestic partnerships as ways to provide equality for same-sex couples and yet later reject those designations as badges of inequality. Advocates successfully transformed these nonmarital alternatives from constitutional remedies to constitutional violations. At crucial moments, courts played significant roles in this transition, providing venues for advocates to announce, hone, and resolve competing frames. Advocates, in turn, integrated courts’ treatment of those frames into their discursive strategies. Ultimately, the concepts of equality and inequality and their relationship to same-sex couples gained—and changed—meaning through court-based campaigns. To chart this trajectory, this Essay attends to four crucial judicial decisions along the path from equality to inequality in the framing of civil unions and domestic partnerships: (1) the 1999 Vermont Supreme Court Baker v. State decision, (2) the 2003 Massachusetts Supreme Judicial Court Goodridge v. Department of Public Health decision, (3) the 2005 New Jersey Supreme Court Lewis v. Harris decision, and (4) the 2010 Northern District of California Perry v. Schwarzenegger decision. By Douglas NeJaime | Volume 60 | Page 184
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