California Goveror Arnold Schwarzenegger and State Attorney General Jerry Brown have announced that they will not appeal the decision of Federal District Court Judge Vaughn Walker in the Prop 8 case.  Do they have to?  If not, does anyone else have standing to appeal the decision?

     First, some background on the legal doctrine of "standing."

     Under the Constitution, a person must have "standing"  to bring a case in federal court or to appeal it.  If the plaintiff or appellant lacks "standing" then the federal court lacks "subject matter jurisdiction" – it lacks power under the Constitution to hear the case.  This is because Article III of the Constitution provides that the federal courts have the power to hear "cases and controversies," and if the person bringing the lawsuit or appealing the decision of a lower court does not have standing then the dispute is not considered to be a "case or controversy" – it's just someone who is complaining about something.  

     In most cases it is easy to determine who has standing to bring a case or to appeal a decision of a lower court.  Almost all of the time the person challenging a law is someone who is adversely affected by it, and the law is defended by someone who benefits from it.  For example, when a worker sues his employer because of an injury suffered at work and seeks a favorable interpretation of the law of Workers Compensation, the worker may appeal any adverse ruling on that point.  Furthermore, the employer is also directly and materially affected by the interpretation of that law and will be permitted to defend its view in the trial court and in the appellate courts.  The employer has "standing" to appeal an adverse decision because it stands to gain or lose from the courts' interpretation of the law in that particular case.  But if a party is not directly affected by a court's interpretation of the law – if it had no stake in the outcome of the appeal – if its interest is purely theoretical – then it would not have standing. 

     The Supreme Court has ruled that to have standing in federal court a person must meet three requirements: (1) the person must prove that he or she has suffered an "injury in fact"; (2) the person must prove that the injury was caused by the government; and (3) the court must be able to fashion a remedy for that injury. 

     In this case the proponents of Prop 8 cannot even meet the first element, "injury in fact."  In several cases the Supreme Court has ruled that a moral injury is not enough to confer standing; a person does not have standing to challenge a law or to defend it on appeal simply because that person agrees or disagrees with the law itself.  Nor does a person have standing on the ground that, as a citizen, he or she wants the government to enforce the law or follow the Constitution.  Only people who are themselves affected by a law can defend it or support it as parties to a case.

     The proponents of Proposition 8 do not have standing for the same reason that the District Court declared the law unconstitutional.  The existence or non-existence of Proposition 8 does not affect them in the slightest.  It does affect gays and lesbians.  The law prohibiting gays and lesbians from marrying harms gay and lesbian couples – it stigmatizes them and classifies them as second class citizens.  But the decision striking down Proposition 8 and allowing gays and lesbians to marry does not harm anyone.  It does not harm heterosexual couples; they are still free to marry.  It does not harm the Church of Latter Day Saints or the Roman Catholic Church; they are free not to perform same-sex marriages or to otherwise recognize them for religious purposes.  It does not harm people who wish to object to same-sex marriage; the First Amendment protects that right, now as always.  It does not harm people who wish to discriminate against gay and lesbian couples; the law does not permit them to discriminate anyway.  It does not harm the State of California or any political subdivision of the state; couples in domestic partnerships are entitled to all of the same benefits from the state that married couples are.  

     This really is a very unusual case.  Almost all of the time a law that harms one person benefits another, and so there are parties on both sides of the dispute who can challenge and defend the law.  Proposition 8 harms a great many people but it benefits no-one.  Accordingly, no-one has standing to defend it on appeal except the original defendants in the case, Governor Schwarzenegger and State Attorney General Brown.

     Do the Governor and State Attorney General have a legal duty to defend the law on appeal?  The Pacific Justice Institute sure thinks so.  Here is an excerpt from their posting on the subject:

     Whether or not the citizens of California realize it, the social contract that the people have made to govern themselves with is being breached. We are witnessing what is essentially a coup. Although Governor Schwarzenegger and Attorney General Brown do not support a traditional definition for marriage, it is imperative that they recognize that nothing less than preservation of a republican form of government is at stake. If they still believe in the radical experiment which is democracy – that the people are wise enough to govern themselves – it is crucial that they take the simple procedural step of filing a notice of appeal so that a lawfully enacted amendment to the Constitution can be weighed in the scales of justice by the full judicial process. This is necessary to preserve the system and form of government which they vowed to support and defend. Otherwise, what will occur is a usurpation of power that is violative of the fundamental constitutional structure that California has in place. If not resisted, their legacy will be that of plunging the state into a constitutional crisis.

     Bridgette P. LaVictoire reports in this posting that a California appellate court, the Third District Court of Appeals, has ruled against PJI in its attempt to force the Governor and State Attorney General to defend Proposition 8.  PJI intends to appeal this question to the California Supreme Court.  In addition, PJI is seeking a ruling from the United States Court of Appeals for the Ninth Circuit that would allow it to appeal the ruling of the District Court.   

     When the constitutionality of "Don't Ask, Don't Tell" was challenged in federal court, President Barack Obama and Attorney General Holder defended the law, infuriating many supporters of gay rights.  But they did the right thing.  The Executive Branch of government is constitutionally bound to "faithfully execute the law," and that includes defending the law in court when it is challenged. 

     How far does that duty extend?  Does the Executive Branch have to appeal adverse rulings?  I doubt it.  The Executive Branch also possesses "prosecutorial discretion" – it has the power to decide whether to prosecute a case, and whether to take an appeal when it loses in the trial court.  Some cases are stronger than others, and the Executive Branch must be free to decide how it wishes to allocate its resources.

     In short, do the Governor and State Attorney General have a moral duty to appeal this decision?  Yes.  Do they have a legal duty to file the appeal? No.  Does PJI or the other proponents of Proposition 8 have legal standing to file an appeal? No.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.  Visit his website at http://sites.google.com/site/huhnconstitutionallaw/.

(Kenneth Anderson)

Behold, the personal drone, controlled by Ipad, Itouch, Iphone, available on pre-order for later this year from Amazon.

The Parrot Helicopter Drone

(Kenneth Anderson)

Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields … In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new — and I suspect soon to be indispensable — national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario — CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted — and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem — the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category — except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted — not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks — without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens — it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders — a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights — the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law — geographical limits on the legal state of armed conflict — has been somewhat passed over as people have argued instead about citizenship.

Third observation — why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process — some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed — a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed — so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment — perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention — into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before — does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign — this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit — execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be … but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved — to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this — a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night — read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.

(Jonathan H. Adler)

Once virtually eliminated in the United States, bedbugs are back with a vengeance.  Earlier this summer Environmental Protection Agency and Centers for Disease Control and Prevention reported the little pests had made an “alarming resurgence,” possibly due to increased resistance to available pesticides and a decline in local pest control programs.   Some pesticides once used for bedbug control have been phased out from indoor use, if not altogether, and the blood-sucking insects have developed resistance to their replacements.  Lifestyle changes also play a role in the bedbug rebound.

As the Washington Post reports some state and local officials are seeking EPA approval for indoor use of chemicals that retain their effectiveness against the pesky parasites.  Ohio Governor Ted Strickland, for one, has sought approval for use of propoxur, a pesticide currently banned from residential use, but so far the EPA has said no.  Without a safe and effective indoor pesticide to use, bedbug infestations are spreading.  As the Columbus Dispatch reports, bedbugs are spreading to schools, fire departments, and group homes, among other places, and increasing burdens on charities that collect and sell used clothes and furniture.  There are also increasing reports of health problems caused by ill-advised efforts to use available outdoor pesticides indoors.

Health officials in Ohio and several other states believe that the risks posed propoxur are outweighed by the severity of the bedbug problem.  The EPA disagrees.  The EPA has the legal authority to preempt state preferences, and is often obliged to under existing statutes, but should it?  Why should the EPA’s assessment of the relevant risk-risk trade-offs override those of the states?

There is an unquestionable case for federal intervention where activities in one state cause spillovers into another.  Think of air pollution.  But there’s no risk of such spillovers here.  Indeed, if there’s any risk it operates in reverse — jurisdictions that fail to control bedbugs can increase the risk of infestation for their neighbors.  By limiting local pest control options the EPA is protecting local jurisdictions from themselves, and some don’t want this protection.

If local communities wish to strike a different risk balance than the feds, the EPA should not stand in their way.  It is one thing for the EPA to inform local choices, and help clarify the relevant health trade-offs, quite another to impose one set of health preferences on the nation as a whole.  If EPA’s resistance to propoxur was motivated by spillover concerns, such as potential groundwater pollution that could cross state lines, the federal rule would make sense.   But it is not and does not.  This is precisely the sort of environmental problem which state and local preferences should control.

(Ilya Somin)

At Econlog, GMU economist Bryan Caplan and Princeton economist Bill Dickens have been debating the signaling model of education. See this post for Bryan’s most recent contribution and links to earlier parts of the debate. Bryan argues that a large part of our education spending (perhaps as much as 80%) is socially wasteful “signaling.” It is a kind of arms race where students try to get more education than than their rivals in order to signal their conscientiousness, conformity, and intelligence to potential employers. Crucially, however, much of the information learned is actually not needed for their careers; the real objective is just to rack up better-looking credentials than the Joneses in order to look good to employers.

Both sides make many good points. Overall, I am not persuaded by Bryan’s argument, at least not yet. The crucial objection, raised by Dickens, is that if most education expenditures are primarily about signaling, it should be possible to find other, cheaper ways to signal these desirable traits to employers. Bryan in fact concedes that “intelligence is fairly easy to observe (even in a regime where IQ tests are only semi-legal).” For example, applicants can submit their standardized test scores even if employers don’t require them to do so. Intelligence can also be signaled by getting a high grade in one or a few difficult courses at the high school or college level. You don’t really need four years of college grades. So the debate really turns on the extent to which it’s possible to find easier and cheaper ways to signal conscientiousness and conformity. Here, Bryan argues that there is an adverse selection problem:

[C]onscientiousness and conformity are often hard to spot — especially when people have a strong incentive to fake them. Even worse, low educational attainment relative to IQ is a strong signal of low conscientiousness and conformity. So when employers interview a smart person with little education, they infer that the person is well below-average in other productive traits.

As Bryan sees it, a cheaper or quicker method of signaling (e.g. — a college that takes only one or two years to complete) will tend to attract noncomformists and slackers, the types of people whom most employers seek to avoid. As a result, they will shun graduates of such institutions. This key part of Bryan’s argument is not entirely persuasive. For one thing, the cheaper or quicker method will not attract a disproportionate number of slackers if it is hard to pass. Consider, for instance, a college that will give you a degree in only one year, but requires you to pass a series of extremely difficult courses that are very strictly graded. If higher education is primarily about signaling and the actual content of courses doesn’t matter very much, that type of program will attract hardworking, capable people eager to get into the work world faster and at lower cost. It should spread quickly. Indeed, employers might even start to look askance at the slackers who spend four years hanging out and socializing at conventional colleges.

A second relevant consideration is that conscientiousness and conformity is better signaled by good work at boring and unpleasant tasks than at relatively interesting ones. If you do the latter well, it could just be because you enjoyed them, not because you are dedicated and trustworthy. In most four year colleges, students have considerable choice as to which courses to take, and can usually avoid those they find boring or off-putting. By contrast, many blue collar and service jobs have extremely boring and unpleasant elements that are hard for workers to avoid. If your goal is to signal conscientiousness and conformity, a year of good performance at McDonald’s is probably a better signal than a year of academic success at most colleges. And unlike college, McDonald’s doesn’t charge tuition and pays you a salary (even if a small one).

When I was in high school, I did a lot of babysitting and lawn work. These jobs were generally boring and repetitive, and I often hated them. Yet, for the most part, I did fairly well. My effective performance of these tasks was a much better signal of conscientiousness and dedication than my work in various academic classes, especially the ones I took in college where I had a free hand in picking most of my courses. Indeed, what could be a better signal of conscientiousness and conformity than the fact that people were willing to entrust their children to me, sometimes for many hours at a time?

Yet few if any white collar employers cared about this part of my record. Had I tried to get a job based on a combination of my standardized test scores (signaling intelligence) and glowing recommendations from the people I did babysitting and lawn work for (signaling conscientiousness and conformity), I probably wouldn’t have done very well. 

I suspect that my experience was not atypical. Perhaps most employers are simply too stupid or too tradition-minded to hire workers based on these credentials alone. But, as economic history shows, the first employer to recognize and correct a major inefficiency in hiring labor is likely to get a huge competitive advantage. Over time his rivals will have strong incentives to copy his innovations.

In sum, I think that Bryan overstates the extent to which signaling drives education expenditures. Like Dickens, I conjecture that successful completion of college courses often improves people’s qualifications even if the specific knowledge they learn has very limited market value in itself. For example, it could do so by improving the students’ reasoning ability, writing ability, or organizational skills. Bryan doesn’t deny this completely, but his argument can only work if such effects are very small relative to the impact of signaling. At the same time, I agree with him that the education system has numerous inefficiencies, many (though by no means all) of them caused by government subsidies and regulation. I’m just skeptical that the signaling arms race is nearly as big a part of the problem as he contends. 

(Jonathan H. Adler)

It’s Labor Day weekend.  I’m not ready for summer to be over, but it’s not like I have much choice in the matter.  Death Cab for Cutie’s “Summer Skin” seems appropriate. Here’s the second verse:

I don’t recall a single care
Just greenery and humid air
Then Labor Day came and went
And we shed what was left of our summer skin

Here are the full lyrics, the song, a fan made video. and a live version.

     A century ago Louis Brandeis filed his brief on behalf of working women in the case of Muller v. Oregon.  That brief started a movement that has revolutionized how our courts analyze and interpret the law.  The result has been a change in our jurisprudence from "faith-based" to "reality-based" thinking, from deontological to consequentialist philosophy, from reliance upon religion and ideology to resort to reason and social science.

     In 1903 Oregon enacted a maximum hour law for women.   Business interests challenged the law on the then-prevailing theory that such laws are unconstitutional because they impair "freedom of contract," which was considered to be a violation of the Due Process Clause.

Louis Brandeis

Louis Brandeis, a corporate lawyer who nevertheless had progressive ideals, filed a brief on behalf of the State of Oregon in support of the law.  His brief was over 100 pages long.  It consisted of less than 2 pages of legal argument; the rest was summaries of dozens of social science and economic studies proving that maximum hour laws improve the lives of working women and their families.  This brief was a milestone in American law.  From this point forward lawyers and judges became more and more concerned with the practical implications of the laws they sought to interpret and apply.  This movement, called "legal realism" or "policy analysis," is marked by careful and thorough consideration of the consequences that will ensue, both for the parties to the case as well as for the rest of society, depending upon how the law is interpreted.  As Brandeis said,

The method I have tried to employ in arguing cases has been inductive, reasoning from the facts.

     This type of brief – heavily reliant upon policy analysis and social science – is known as a "Brandeis Brief."  However, Brandeis' method of reasoning was not what won the case for the women of Oregon.  In its decision the Supreme Court agreed with Brandeis that the law was unconstitutional, but for an unfortunate reason: the opinion of the Court is laced with historical prejudices, overbroad generalizations, and stereotyping about women's shortcomings, from their lesser "capacity for long continued labor" to their lack of "self-reliance which enables on to assert full rights."  The Court asserts that "history discloses the fact that woman has always been dependent upon man," and states that the justification for the law

rests in the inherent difference between the two sexes, and in the different functions in life which they perform.

          A century later Judge Vaughn Walker of the Federal District Court for Northern District of the State of California issued his ruling in the Prop 8 case, and it illustrates the extent to and manner in which the law has evolved during the intervening time.  In their campaign for the adoption of Proposition 8 the proponents of the law appealed to every prejudice they could muster against gays and lesbians – that if allowed to marry gay and lesbian couples would somehow harm children, destroy the institution of marriage, or interfere with other people's rights to freedom of speech and freedom of religion.  At this trial it was the opponents of the law who called expert witnesses and who stuck to the facts; the proponents of Proposition 8 called but two witnesses who presented no evidence – I repeat, no evidence – that same-sex marriage will harm any child, interfere with the marriage of any heterosexual couple, or trample on the rights of any person to speak or worship in the manner they see fit.

     Is it not astonishing that in the space of a single century the law has thoroughly embraced Louis Brandeis' approach – and that of other leading judges of his generation, Benjamin Cardozo, Learned Hand, and Oliver Wendell Holmes, Jr. – that courts must consider the realistic consequences of their decisions when interpreting the law, and that their decisions must be based upon sound social science?

     Gay and lesbian relationships are no different from heterosexual relationships in any significant regard relevant to the right to marry.  As Judge Walker points out, the ability to procreate is not a requirement for marriage in any state of the union.  The two couples opposing the law were able to prove to the court's satisfaction that gay and lesbian couples love each other just as much and can care for children just as well as heterosexual couples.  The proponents of the law were reduced to relying upon religious doctrine, moral teaching, received faith – in short, traditional notions of right and wrong.  The court appropriately found these considerations to be insufficient – indeed, illegitimate – as justifications for a law denying gay and lesbian couples the right to marry.  In the modern era, the parties to a lawsuit had better be able to back up their assertions about the law with valid and reliable social science – not ideology.

     There is another respect in which Judge Walker's opinion in Perry v. Schwartzenegger differs from the Supreme Court's opinion in Muller.  A century ago the Supreme Court based its decision on "the inherent difference between the two sexes."  Judge Vaughn's decision is based in part upon the general elimination of strict gender roles from our law and from our daily lives; in short, the relative similarlity of the two sexes.  I will discuss that portion of Judge Vaughn's decision in tomorrow's posting.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.  Visit his website at http://sites.google.com/site/huhnconstitutionallaw/.

Some thoughts here.

     One of the remarkable things about Judge Vaughn Walker's decision in the Prop 8 case is the extent to which he treats Proposition 8 as a form of gender discrimination.

     Laws that deny gay and lesbian couples the right to marry obviously discriminate on the basis of gender; such laws confer a valuable legal status upon a man and a woman but deny the same benefit to two men or two women.  But Judge Walker takes the argument further and explains why such laws are a classic form of gender discrimination.

     To the extent that the proponents of such laws depend solely upon religious teachings or moral tradition their cause is doomed.  In this country people can't force their unfounded assumptions upon others, particularly when those assumptions consist of the unsupported belief that one group of people is superior to another.  In court, appeals to God and appeals to nature are fruitless.  The proponents of these laws must appeal to reason if they wish to prove that heterosexual couples are superior to gay and lesbian couples.

     The reason that was given in court was that "children need a mother and a father" – not two mothers or two fathers.  The proponents of Proposition 8 invoked reliance upon the specialization of gender roles in parenting.  This was a natural position for the Church of Latter-Day Saints and the Roman Catholic Church, who were the two principal forces behind the adoption of Proposition 8.  Essentially, they argued, to grow up healthy and strong children need a male and a female parent.  The mother shares unconditional love, while the father instills discipline; the mother, warmth, the father, heat; the mother tends the heart and hearth, while the father hunts and protects.

     The proposition that "children need both a mother and a father" or at least the idea that these roles are best performed by a woman and a man turned out to be difficult to prove.  Research shows that intact families with a mother and a father in the home are in general superior to single-parent families – parenting is a tough job, and it's great to have help – but studies do not support the conclusion that stable heterosexual couples are superior to stable gay and lesbian couples in raising healthy, happy children.

     There is another sense in which the opponents of same-sex marriage may stand a chance in proving that the law may make a difference.  They also contend that a mother is a role model for her daughters and a father is a role model for his sons.  A mother shows her daughters how a woman should act, while a father shows his sons how to be a man.  This may be true.  In my opinion it is not only possible but probable that gender roles are taught, and taught most effectively, in the home.  Accordingly, if the government seeks to maintain and reinforce men and women in strict gender roles it makes sense that families should be encouraged to reflect this pattern – through legal compulsion if necessary.

     This type of legal gender-assignment may comport with fundamental religious doctrine, particularly within religions that encourage women not to work outside the home and that permit only men to serve as priests.  But our society has now rejected any role for the law to play in determining how "manly" or how "womanly" individuals choose to be.  Under the Constitution a man can be a "mother" and a woman can be a "father" if they choose.  Judge Walker's decision goes far beyond gay rights.  It concerns the right of every single person in society to accept or reject traditional gender roles.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.  Visit his website at http://sites.google.com/site/huhnconstitutionallaw/.

This article from the NY Times describes how some content owners have permitted fans to upload copyrighted TV shows to YouTube in exchange for sharing in the targeted advertising revenue generated from showing these programs on YouTube.

This is a good example of using IP to build bridges rather than using IP solely as either a sword or a shield.