Public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary understandings of unlawful assembly cede too much discretion to law enforcement by neglecting earlier statutory and common law elements that once constrained liability. Current laws also ignore important First Amendment norms intended to provide “breathing space” for expressive activity. In doing so, these laws fall short of the aspirations of the First Amendment by stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start by reclaiming a more measured approach to unlawful assembly that recognizes both constitutional and common sense limitations.
In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, to participate in health insurance plans that cover certain contraceptive devices.
While not always successful, these claims have typically been recognized by courts as claims of religious exercise under the Free Exercise Clause. This Article draws on past work suggesting that the law should protect the individual’s right to define and pursue one’s own identity within a more limited, internal sphere, but that law, and not identity, should govern relationships among individuals and groups in society. It argues that these claims might be viewed as analogous to other identity-based claims and, as a result, subjected to similar limitations.
The U.S. Constitution does and should protect the individual’s ability to define one’s own religious identity, engage in practices that reinforce that identity, and determine how one relates to the law (which may sometimes necessitate accommodation). It should not, however, be understood to protect identity when projected outward, onto non- identifying individuals or the government in its regulation of others. Thus, protective claims of religious identity, which aim to protect identity as a personal matter—exercised with an eye toward the individual or religious community—should fall within the ambit of the Free Exercise Clause. Projective claims of religious identity, however—those that attempt to impose one’s identity on others, dictate how the law relates to non-identifying individuals, or conform the law or government practices to one’s internal conception of identity—should not be cognizable as constitutional claims. The protective-projective distinction is consistent with underlying themes in the Court’s free exercise jurisprudence and may help to cabin claims like those described above without minimizing the significance of religious identity.
Public companies in the United States must comply with both federal securities law and state corporate law. This division of labor is premised on the assumption that there is a meaningful distinction between securities and corporate law. The most common view is that securities law is characterized by its use of disclosure, while corporate law sets forth substantive requirements. Critics respond that securities law is really just a federal version of corporate law. They argue that the federal policy of investor protection justifies preempting state corporate law to address corporate mismanagement.
While investor protection concerns have been invoked as a reason for unifying corporate and securities law, this Article contends that corporate and securities law can be distinguished based on the type of protection they provide to investors. Both corporate and securities law serve to protect investors, but they do so at two different phases of the investment process. First, when purchasing or selling a stock, a trading investor is vulnerable to transacting at an unfair price. Second, during the period when an investor owns a stock, he is vulnerable to new corporate misconduct that reduces the value of the company. Simply put, securities law protects investors as traders while corporate law protects investors as owners.
Distinguishing between trading and ownership protection provides a strong basis for regulating securities and corporate law in different ways. Securities law is uniform and mandatory because investors have a common interest in fair valuation when trading. Corporate law is diverse and enabling because the ownership interests of investors are more difficult to reconcile.
This Comment seeks to reframe Obergefell v. Hodges as a product of kinship formation and interest convergence. Obergefell v. Hodges is not merely a case about LGBTQ and marriage equality, or the moral triumph of oppressed sexual minorities over the majority. It is through marriage that unrelated people come together and form a legal relationship that surpasses any other in terms of state-guaranteed benefits and rights. At its core, Obergefell represents societal affirmation of marriage as the dominant site of kinship formation. It is precisely because same-sex marriage strengthens the institution of marriage as the only site of legal kinship formation that marriage equality was such a successful political project. This Comment turns to interest-convergence theory to explain this success and to show how marriage equality institutionally, economically, and ideologically affirms marital supremacy and made Obergefell possible. In doing so, this Comment hopes to contribute to the political discourse of the next LGBTQ rights project.
This Comment brings together scholarship from feminists, criminal justice reformers, and social theorists to understand sexual violence in carceral settings and to evaluate reforms to prevent rape in prisons and jails. After introducing the sexual nature of modern incarceration itself, the Comment explains a framework for understanding prison and sexual assault that emerges from social thinkers who tackled the theories of violence and the ambiguous sacred. Drawing from feminist insights on sexual assault legal force requirements, consent, sex positivity, agency, and confronting stereotypes, the Comment then discusses PREA and its limitations in light of this interdisciplinary framework. Finally, the framework yields insights into reform measures and their efficacy, including conjugal visits, condom and dental dam distribution, reporting improvements, inmate classification systems, ending regulation of consensual inmate sex, prison abolition, new approaches and programming, and Eighth Amendment doctrinal changes.