Faculty Bibliography

Comments on the attitude of the Republican Party and the Democratic Party of the U.S. on the debate over gay marriage. Message by Republicans that gay marriage is all about "judicial activism"; Appeasement of the conservative base of the Republicans by opposing gay marriage; Contention by the Democrats that gay marriage is all about state's rights; Ability of Democrats to placate their liberal cause by not opposing gay marriage.

Although the phrase private attorney general is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes - to distill from the singular private attorney general concept a range of distinct private attorneys general - and then to show why this new taxonomy is a helpful heuristic device. Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys (agents) pursue the interests of their class member clients (principals) with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals. This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways. If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece.

Since 1990, the federal government has collected data on hate crimes reported throughout the United States. To date, the conventional account of that data has simply been to report that racial hate crimes are the most frequently reported type, followed by religious hate crimes, and sexual orientation hate crimes. While this conventional story is not technically wrong, I argue in this Article that it is not the real story the data tell. Undertaking the first comprehensive empirical analysis of this data, this Article develops a new account of hate crimes in the United States. First, the Article pierces the neutral categories (race, religion, sexual orientation) to demonstrate that three sub-groups - blacks, Jewish people, and gay people - report, by far, the most hate crimes. Second, I adjust the raw data to account for the differing population sizes of targeted groups: per capita, gay people report the greatest number of hate crimes, followed by Jewish people and blacks, these three groups reporting hate crimes at greater per capita rates then all other groups. Third, gay people are especially like to report personal - as opposed to property-based - hate crimes. A final section of the Article presents the first scholarly analysis of the staggering growth of anti-Islamic and anti-Arab hate crimes after September 11, 2001. The methodology of this Article enables a per capita perspective on this increase, showing that Muslims and Arabs reported hate crimes in 2001 at rates even greater than those at which gay people, Jewish people, and blacks have reported hate crimes over the past half-decade. While this post-9/11 spike leveled off in 2002, Muslims and Arabs are still reporting hate crimes at very high rates. As Congress intended hate crimes data to assist in designing public policy initiatives, the Article concludes by calling on Congress to respond to what the data actually demonstrate.

Comments on the legalization of gay marriage in Massachusetts. Rights and benefits afforded to gay couples in different states; Relocation of majority of people who identified themselves as "living with an unmarried partner" to states that grant some legal recognition to gay unions.

The Article fills a void in the procedural literature by providing the first sustained treatment of the complex role that equality plays in procedural thought. The Article's central message is that there is not one "procedural equality" but rather a host of "procedural equalities." I identify and explore three different forms of equality that are central organizing principles of procedural justice. The Article creates a new typology of procedural equalities. The Article's second primary contribution is that it demonstrates how our procedural systems contain an intricate web of architectural decisions that promote procedural equalities. The Article discusses numerous procedural rules and approaches that contribute to the forms of equality that are identified. Finally, by carefully delineating the meaning of equality in various procedural domains, the Article provides an explanation for the Equal Protection Clause's impotence in the field of procedure - namely, that constitutional equality and these three procedural equalities are not the same thing. Although my conclusion is that constitutional adjudication is generally not a successful, nor even germane, method for achieving procedural equalities, the Article nonetheless contains a normative agenda. It concludes by providing policy suggestions to two sets of institutional actors - crafters of alternative dispute resolution systems and legislators considering procedural rules.

This Article defines a new way of thinking about adjudication. American procedural theory encompasses three familiar models of adjudication: the traditional adversary system model; a model of public law litigation that describes large civil rights cases; and a model of managerial judging that attempts to account for the increasing judicial emphasis on settlement, as opposed to adjudication. None of these models, however, can explain much of contemporary class action litigation. A new model of civil litigation has emerged: a transactional model. The large, sprawling class action lawsuits that occupy the current procedural domain have more in common with business deals than they do with traditional adversarial litigation, legislative activity, or executive management. The salient attributes of contemporary class actions are most familiar in transactional terms: (1) Defendants purchase a commodity - finality. They buy from the plaintiffs' representative the plaintiffs' rights to sue. (2) The attorneys' activities are primarily business-oriented, not legal, in nature. They negotiate and structure large financial arrangements. Traditional litigation work - client meetings, legal research, discovery, motion practice, brief drafting, oral argument, trial - is of secondary importance. (3) The familiar signposts of adjudication - pleading, discovery, and trial - are of minor importance. Pleadings often do not initiate adjudicatory activity, but rather succeed the finalization of the transaction, and rarely do they frame the nature of the dispute as much as they reflect the nature of the deal. Huge transactions take placed based on discovery from other cases, or no discovery at all. Trial is rarely contemplated. (4) Judges broker deals, they do not adjudicate cases or even simply manage settlements. (5) The desire for nationwide deals and global peace has displaced familiar sovereign boundaries on the judicial capacity and function. This Article demonstrates the failure of current doctrinal and theoretical frameworks through an in-depth analysis of three recent Supreme Court cases - Amchem & Ortiz (mass tort class actions) and Matsushita (securities class actions ). The Article then describes the new transactional model, making the case for conceptualizing large, private law class action lawsuits as commercial transactions. The Article demonstrates the descriptive and explanatory value of such a model. The Article concludes by considering some of the normative questions raised by the adjudicatory developments.

This Article re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims. In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years. However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.

Male on Male Rape: The Hidden Toll of Stigma and Shame examines a form of violence that, despite worldwide prevalence, remains vastly underreported and unrecognized. Michael Scarce, coordinator of a rape education and prevention program and a survivor of adult male rape, investigates the substantial effects of male-on-male sexual violence on individuals and society, dispelling popular myths and questioning why most communities cannot or will not confront the problem of same-sex sexual violence. This groundbreaking book is the culmination of years of research that includes numerous interviews with straight and gay male rape survivors, an analysis of popular media, case studies, and the author's own personal and professional experience. Male on Male Rape shatters the silence surrounding this sexual violence in our society while offering concrete initiatives and strategies for addressing the rape of men by men. It is an invaluable resource for anyone interested in the prevention of rape or the healing of rape's devastating effects.

Examines the rules of civil procedure structure disputes among group members regarding their goals in practice. Impact of the rules of professional ethics on disputes among attorneys about legal strategies; Individualist model of procedure and ethics; Rules of civil procedure and democratic decision-making among members.

Using the question-and-answer format common to all ACLU handbooks, this book makes clear how to take advantage of the laws designed to secure the rights of people who are HIV positive. The authors have divided the book into four sections: the disease itself and the related testing, public health, and confidentiality issues; day-to-day issues involving insurance, family law, and healthcare decision-making; discrimination in housing and work; and AIDS in prisons, schools, as a factor in immigration, and among IV drug users.

This contributed text is for undergraduate or graduate courses in gay, lesbian and bisexual studies and courses on diversity issues taught in a variety of departments. The authors are experts from psychology, sociology, anthropology, education, women's studies, and law. Features: * Developmental focus provides students with a sense of continuity in understanding the life span challenges of gays, lesbians, and bisexuals. * Range of topics include perinatal factors in gender identity, issues in sexual childhood identity, perspectives on coming out, ethnic minorities, dating, relationships, families, and law. * Examples from popular culture, interviews, and life histories help students relate to and understand these issues more fully. * Lists of resources, organizations and services, as well as policy recommendations, form a valuable reference guide within the textbook.

Proponents of hate speech regulations, notes Harvard Afro-American Studies department head Gates in the best of these six essays, must be met with more than conventional free speech absolutism. He elegantly dissects the practical problems of such codes (who defines "historically oppressed?") and attributes their rise to "the seductive vision of the therapeutic state." Also notable are three short stories, including one about a silenced comedian by Griffin, a black Texas lawyer professionally censured for representing the Ku Klux Klan. Other contributors write in lawyerish style but make some worthy points: dialogue, not censorship, might better lead us to racial reform; contrary to common perception, the American Civil Liberties Union devotes more resources to fighting racism than defending racists; despite radical law professors' arguments that the equality provisions of the Fourteenth Amendment should take precedence over the free speech guarantee of the First, gay and lesbian gains have relied mainly on the First Amendment.

Presents the views William B. Rubenstein, director of the American Civil Liberties Union's (ACLU) National Lesbian and Gay Rights Project on the law allowing gays and lesbians to serve in the military. Views of ACLU on the constitutionality of the policy; Violations of the First Amendment and equal protection rights.

Organized according to the life experience of lesbians and gay men, the book includes chapters entitled, "What we talk about when we talk about sexual orientation," "Having sex/making love," "Coming out/speaking out/joining in," "Working," "Coupling" and "Parenting"

As the AIDS crisis moves into its second decade, new populations are suffering its devastating effects, and complex new social and legal issues are emerging. In AIDS Agenda, the directors of the AIDS Project of the ACLU have gathered nine important essays analyzing the legal and social policy failures that have led to widespread discrimination against persons with HIV disease, and have presented concrete recommendations for a more just and effective AIDS policy. With an emphasis on civil rights throughout, the authors address such topics as adolescents with HIV, women with HIV, health insurance and the battle over limits on coverage, the criminalization of HIV infected persons, HIV in the workplace, and the responsibilities of health care providers. AIDS Agenda is not only a useful and moving review of significant cases relating to HIV, AIDS, health care and civil rights, but also represents an urgent response to the government's willful failure to address these issues.

A collection of nine important essays analyzes the legal and social policy failures that have led to widespread discrimination against persons with the HIV virus and disease and presents concrete recommendations for change.

Symposium speech: Legal Restrictions on Homophobic and Racist Speech: Collateral Consequences on the Lesbian and Gay Community

Congress, spurred by Senator Jesse Helms, bars the National Endowment for the Arts from funding "homoerotic" art, thereby equating art, involving homosexual themes with obscenity. Facing criticism from conservative members of Congress, the Secretary of Health and Human Services disavows a government report on youth suicide that found a remarkable prevalence of suicide among, and called for an end to discrimination against, gay youth. In Arlington Heights, Texas, a school principal prohibits the school paper from publishing the results of a student survey on attitudes towards homosexuality.