Ann L. Schiavone
Do Justice Anthony Kennedy’s opinions in the gay rights cases of Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges have any impact on the future of Fourteenth Amendment jurisprudence beyond rights for gays, lesbians, and transgender persons? We don’t know. It is possible these cases will simply remain siloed in their unique legal and cultural niche, but viewing them through the lens of 150 years of Fourteenth Amendment jurisprudence suggests they may signal a shift in due process and equal protection analysis. This shift could open the doors for challenging discriminatory laws under a more robust rational basis analysis than that which is generally employed under the traditional tiered-scrutiny structure.
Matthew H. Birkhold
When the English arrived in the “New World” in the seventeenth century, they viewed the land as empty, unused, and unclaimed—a “vacuum domicilium” that legally justified their usurpation of the land. Nearly four hundred years later, we have come to appreciate that Native Americans stood in various agricultural, economic, spiritual, and geopolitical relationships with the land. The English simply failed to perceive these connections and uses. The Supreme Court’s recent decision to hear Nebraska v. Parker offers an opportunity for the American justice system to demonstrate that it has since developed a more enlightened and nuanced jurisprudence, one that understands more about Native Americans than the early colonists did.
The story of film and the First Amendment charts a steady course toward creative freedom. Within one hundred years, motion pictures developed from a fairground attraction into an art form, and from a revolutionary technology into an industrially produced mass media. More accessible to large audiences and more powerful in delivering a message than any previous medium, the movies quickly transcended their origins as a penny-parlor amusement to become an important cultural influencer.
Marriage equality has swept America. Numerous federal judges, including Western District of Wisconsin Judge Barbara Crabb, have invalidated state proscriptions on same-sex marriage. This paper scrutinizes U.S. litigation, Crabb’s opinion, Seventh Circuit affirmance, and Supreme Court resolution. Finding that Wisconsin shows how to efficaciously institute full marriage equality, even as other states have not, the piece affords future suggestions.
Robert J. Condlin
I feel sorry for Professor Yackee. He started a conversation about legal employment and ended up in a debate about clinical education. That’s a little like going to a Barry Manilow concert and having Gene Simmons walk on to the stage. In fairness, he opened the door to the larger issue on direct (perhaps inadvertently) when he acknowledged, ever so briefly, that one could “imagine . . . positive consequences of skills training,” and once the door was opened Professor Findley walked through it on cross, to give the conversation a wholly new character. As I see it, there now are three questions on the table: 1) does clinical practice experience improve a law student’s chances of getting a legal job, 2) if not, would it if employers were given better information about student practice experience, and 3) if not, are there other reasons to justify a law school’s decision to fund a clinical program. The answer to question number 1, at least for many private law firms (and all of Biglaw), is almost certainly no, but there is considerable room for disagreement on questions 2 and 3, and I will express my views on them shortly. First, however, a few words about the ostensible disconnect between clinical practice experience and private law firm employment.