Hot Off the Presses

This was intended to be a bi-weekly feature, but the ravages of the illness have caused a delay in publication.  However, the feature (and its author) are now healthy and ready to go.  So, without further adieu, here is this week's installment.

1.  New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause by William Araiza, Brooklyn Law School.

What it's about:

This article considers the congruence and proportionality test set forth by the Court in City of Boerne v. Flores.  Araiza contends that "the Court has seriously misapplied the congruence and proportionality test by treating its own equal protection jurisprudence as a baseline for performing the congruence and proportionality analysis."  Professor Araiza offers three current and proposed statutes as an example.  The statutes concern topics - such as sexual orientation - that usually merit only rational basis review under the Court's current equal protection jurisprudence.  For example, Araiza notes that a section 5 challenge to the proposed Employment Non-Discrmination Act would be problematic as the equal protection jurisprudence in this area "is hardly straightforward and still evolving. The Court has never held that gays and lesbians are a suspect class, but nor has it ever concluded that they are not. . . . It is anything but clear how such a jurisprudence could guide the Court’s analysis of whether ENDA is congruent and proportional to the Court’s own view of the constitutional problem presented by sexual orientation discrimination."   Araiza contrasts this confusion with the settled jurisprudence regarding age discrimination that the Court considered in Kimel.  Araiza then proposes a new approach under which a court would "first determine the extent to which the relevant judicial doctrine reflects true constitutional meaning with regard to the subject area covered by the statute. That meaning would then provide the baseline against which the statute could be tested for congruence and proportionality." He then applies the new standard to the prior examples to illustrate its advantages over the current system.

Why you should read it:

We just finished learning the Eleventh Amendment in my Con Law class.  Of course, cases such as City of Boerne are cirtical to that analysis, as section five is the only power Congress can use to abrograte Eleventh Amendment immunity after Seminole Tribe.  For professors and experts, it's a good refresher and an interesting look at what - in my opinion - Araiza has correctly identified as a jurisprudential hole in the Court's post-Boerne cases.  Students will enjoy the article's overview of the issues as well.

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1461447

 

2.  Judicial Independence and Retention Elections, by Brandice Canes-Wrone (Princeton), Tom S. Clark (Emory), and Jee-Kwang Park (Princeton).

What it's about:

This paper by political scientists examines a question of great import to constitutional scholars - do judicial elections affect the independence of the judiciary?  The authors note that the previous literature on the topic seems to suggest that retention elections may "increase judicial accountability."  The authors examined judges' votes in abortion cases in jurisdictions where judges are subject to retention votes.  The votes were then cross-referenced with public opinion polls on abortion.  Their conclusion - "Retention elections encourages judges to be responsive to public opinion on hot button issues."   The conlcusion seemed to be particularly true in jurisdictions with non-partisan election systems.  The authors suggest that with no party labels to guide the voters, judges look to public opinion as a way to guage their retention prospects. 

Why you should read it:

Read it because the issue is very timely and presents new information.  Justice O'Connor recently stated her belief that judicial elections do great damage to judicial independence.  (We have previously discussed her views here.)  However, Justice O'Connor's view of reform would apparently include some type of retention election.  I'm sure the view wof Justice O'Connor and others favoring that approach was based on older data that showed less influence in retention elections.  However, with this new information, perhaps new solutions should be generated. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475657

   (H/T to the Legal Theory Blog.)

That's it for this installment.  Also, if you know of any articles that you think might merit a feature here, by all means, please send them along!

NLS