Saturday, March 9, 2013

I got the daylight saving blues

Remember to set your clocks ahead one hour tonight.  Daylight saving time kicks in at 2:00 a.m. Sunday morning, March 10.  And as the song says, if you're upset about losing an hour's sleep "ol' Ben Franklin's the one to blame!"

Daylight Saving Blues courtesy of JustPlainFred.

(jbl).

March 9, 2013 | Permalink | Comments (0)

Ten Tips for Better Google Search Results

Last November, Legal Productivity published and explained these ten tips. Several of them were new to me—for example, when you’re not sure of a word, you can search for synonyms; when you want to search for “apple,” but not the fruit, how to limit your search. Worth a look.

(ljs)

March 9, 2013 | Permalink | Comments (0)

Friday, March 8, 2013

Three semesters of law school followed by an apprenticeship will better prepare students for practice

Below is an excerpt from an essay by Professor Michael Hoeflich (Kansas) called "Rediscovering Apprenticeship" in which the author suggests substituting apprenticeships for almost two years of law school coursework as a way of both reducing the debt burden on law school grads while also better preparing them for practice.  Food for thought. 

Professor Hoeflich's essay appears in full at 61 U. Kan. L. Rev. 547 (2012).

The debt burden young law graduates face combined with the changing shape of the legal employment market is unlikely to revert back to that of the 1980s, when law schools were still cheap and jobs were plentiful, and requires a far more radical solution than simply limiting class size. The time has come for the organized bar and the Supreme Court to consider another solution--reinstituting a version of the traditional method of legal education: apprenticeship.

Professor Tamanaha argues in his book that the great structural failing of American legal education is that there is no differentiation in legal education while there is extreme differentiation in the legal profession. What he means by this is simple. The legal profession is not organized around a single business model. Lawyers work in a wide range of professional settings. Lawyers in private practice may work in corporate mega firms, in small to medium size general practice firms, in small specialist boutique firms, or in solo practice. In the public sector, lawyers may work for the federal government, state or local government, or the military. One of the great advantages of a law license is that it permits lawyers to work in a remarkable range of professional settings.
Given the diversity of legal jobs, it is, therefore, quite strange that legal education in the United States today is so rigidly built around a single model. Since the early twentieth century in most states, including Kansas, law schools in collaboration with the organized bar and judiciary have recognized only a single path to a law license: graduation from an accredited law school. Law schools accredited by the American Bar Association (ABA) typically require that students complete an undergraduate degree plus three years of law school--a total of seven years of higher education--to be eligible for the bar examination. Some law schools allow students to reduce these seven years to six by enrolling in an approved “3-3” program. But these six years of expensive university education is the minimum that any would-be lawyer must undergo and pay for to qualify to take the Kansas bar examination. I would suggest--much to some of my colleagues' horror--that this is still too long and costly a path to the bar for many students. Instead, I believe that for many students a four-year undergraduate program followed by three semesters at law school and a period of apprenticeship in a lawyer's office or judge's chambers would more than suffice.

(jbl).

March 8, 2013 | Permalink | Comments (0)

Judicial Profiles of All Counties

USLAW Network has released a survey of all counties in the U.S., describing each as liberal, conservative, or moderate.  It bases its conclusions on surveys of lawyers. You can take it for what it’s worth. Please click here.

(ljs)

March 8, 2013 | Permalink | Comments (0)

Best Practices In Legal Education: The Sequel

Following the lead of franchises like Wagner's Ring, Star Wars, and Mutiny on the Bounty, CLEA's Best Practices Implementation Committee is producing a sequel to its 2007 megahit, Best Practices in Legal Education: A Vision and a Roadmap.  The book is tentatively titled “Building on Best Practices: The Walls are Coming Down,” and it is being edited by Deborah Maranville and Antoinette Sedillo-Lopez.  It is expected to appear in a theater near you in late 2013 or early 2014.

"Among the topics to be addressed in the new book are the following:

Mission:
• Setting goals for the program of instruction – mission statements

Method:
• Professional Identity
• Interdisciplinary
• International
• Integration and Problem-solving
• Pro Bono
• Intercultural Competence
• Experiential
• Externships
• Technology
• Delivery of instruction

Measure:
• Assessing student learning
• Assessing institutional effectiveness".

The above quote is from an email from Lisa Bliss, co-chair of the Best Practices Implementation Committee.

(Scott Fruehwald)

March 8, 2013 | Permalink | Comments (0)

Asking The Right Questions

Rebecca Love Kourlis has an interesting post on the Educating Tomorrow's Lawyers Website entitled Asking the Right Questions: Another Look at the Debate on Legal Education.

Some of her questions:

Is the law school curriculum providing value to prospective employers and prospective clients? In other words, are we teaching law students the right things in order to prepare them to practice law in today’s world?

Do employers and clients have a sufficient voice in shaping law school curriculum?

Why are there unemployed lawyers when so many people have unmet legal needs? (This is a favorite question of mine.)

She notes, "There is at least a cognizable argument that law schools are good at educating prospective law professors, appellate judges, or appellate advocates, but that the curriculum is not suitable for teaching students to be actual practicing lawyers."

She concludes, "We at Educating Tomorrow’s Lawyers fear that the raging debate about the cost of legal education, while a topic worthy of discussion, may be dominating the conversation to the detriment of a broader dialogue about reshaping legal education for the better. The question should not simply be: why does legal education cost so much? Rather, the question should focus on reassessing and re-measuring the value of legal education: to students, to prospective consumers of legal services, and to society at large. We need lawyers: highly professional, competent lawyers. To get there, though, we need a law school process that actually produces those lawyers. How do we do that? That is the question we would like to prioritize."

(Scott Fruehwald)

March 8, 2013 | Permalink | Comments (0)

Thursday, March 7, 2013

ABA Journal poll on whether law schools should become more like med schools

Apropos to the New York Times story below, the ABA Journal is running a poll in the Legal Rebels column asking readers for their opinion about whether the med school residency model used to train neophyte doctors is a good one for law schools to follow too.  Click here to participate.  Here's an excerpt from the accompanying column:

Why waste the crisis in legal education?

. . . .

Law schools can take a page from other professional schools like medicine (where this is called “outcomes” and “efficacy”) or engineering, and get more engaged in practice, help define and assess better ways of doing legal work, and disseminate improved methodologies. For example, from what I know, Jeff Carr at FMC gets better results at less cost than most lawyers. Shouldn’t law schools try to assess his ACES model, to determine whether there are some approaches to practice that actually produce superior outcomes?

Historically, law schools could say they “couldn’t” be more like medical schools because they didn’t run hospitals and couldn’t conduct clinical trials. Now, with clients operating in private clouds and able to integrate students and faculty in “virtual rounds,” and with a crying need to be able to make empirical statements about which approaches work better, it seems like the best way for law schools to improve their sustainability is to add more value through engagement.

Continue reading here.

(jbl).

March 7, 2013 | Permalink | Comments (0)

Some law schools try med school residency model to better prepare grads for practice

From the New York Times:

To Place Graduates, Law Schools Are Opening Firms

When Douglas J. Sylvester, dean of the law school at Arizona State University, was visiting the Mayo Clinic in Minnesota a couple of years ago he mentioned the shifting job market for his students — far fewer offers and a new demand for graduates already able to draft documents and interact with clients.

The Mayo dean responded that his medical students and graduates gained clinical experience in hospital rounds closely supervised by attending physicians.

“I realized that was what we needed,” Mr. Sylvester recalled. “A teaching hospital for law school graduates.”

The result is a nonprofit law firm that Arizona State is setting up this summer for some of its graduates. Over the next few years, 30 graduates will work under seasoned lawyers and be paid for a wide range of services provided at relatively low cost to the people of Phoenix.

. . . .

Arizona’s plan, mooted at bar meetings and within law school circles, is producing envy — but also skepticism. Some see a naked attempt to improve the school’s ratings in U.S. News and World Report by increasing the percentage of its graduates who find work while doing little to address the access-to-justice problem.

Critics say that $125 an hour is too high to serve those in need and too low to break even. Others say that Phoenix, a city of intense growth and few law students, could support such an operation but that others could not and that local law firms would resent the competition.

. . . .

There are other obstacles. Teaching hospitals have a federal tax dispensation. For nonprofit law firms to qualify for an exemption, legislation is probably required. That seems unlikely at the moment. Arizona State is attaching its firm to its nonprofit alumni association to get around the problem for now.

Continue reading here.

(jbl).

March 7, 2013 | Permalink | Comments (0)

U. Michigan’s “Debt Wizard” Helps Law Students Predict Their Financial Future

From the National Law Journal:

If you take a government law job in Dallas that pays $70,000 after borrowing $110,000 to go to law school, you can expect that about 55 percent of your net income will go towards your housing and debt repayment under a traditional, 25-year repayment plan.

That is one of 11,000 law school loan repayment scenarios ripe for exploration using the University of Michigan Law School's new "Debt Wizard" tool. Michigan developed the online calculator to help law students and prospective enrollees better understand student loan obligations and how they fit into various legal career paths, dean Evan Caminker said.

The school is attempting to be as transparent as possible about post-graduate employment and finances, he added. "Michigan understands and appreciates why people today ought to be as well-informed as possible with information that pertains to the financial value proposition of law school."

You can read more here.

(ljs)

March 7, 2013 | Permalink | Comments (0)

Wednesday, March 6, 2013

The Importance of Legal Writing

Professor Thomas D. Morgan made the following comment to the ABA Task Force on the Future of Legal Education:

"[T]he ability to write clearly and persuasively is the core skill stressed by most law schools and should remain so. Working with words is at the heart of what lawyers do, and no skill is more central to providing effective client service. Further, in my experience a student’s written work often tells even more about a student’s ability to think and draw on sources of ideas than it tells about the subject of the writing. Over my years in legal education, no skill has been more central to legal training than legal writing. We should applaud that reality and maintain it."

You can read the rest of his statement here.

(Scott Fruehwald)

March 6, 2013 | Permalink | Comments (0)

New blog seeks to fill void left by departure of "Inside the Law School Scam."

Now that Professor Campos has stopped blogging at Inside the Law School Scam, another blog has popped up seeking to continue the fight that he and others have led to expose the pitfalls (some would say the foolhardiness) of attending law school given the current state of the legal profession and job market in particular. Called "Outside the Law School Scam," the authors (some of whom are anonymous) invite anyone who has something to contribute to the scamblog "movement" to join them as a contributing author.  From the inaugural post:

This blog proposes that we immediately push forward from where Inside the Law School Scam left off.  There were once many scamblogs and others who addressed the issues of law school reform, lawyer unemployment, rising tuition, student debt, and other life issues affecting those who decided to obtain law degrees and who are now struggling or succeeding.  Most have disappeared, and those that remain post only occasionally.  There are new writers too, commenters who made great contributions to the discussion at Inside the Law School Scam and on other blogs, who would make fine bloggers in their own right.  There is more than enough collective passion and creativity for us all to take this to the next level.

But regular blogging is hard.  It takes time.  And for many of us, time is something of which we have very little.  So here’s the proposition:

This blog, Outside the Law School Scam, will be a collaborative effort with no head writer.  If you want to write once a week, once a month, occasionally, or daily, please get in contact us via email and we will set you up as a contributing blogger, with full privileges to post pieces on this blog as you see fit.  If you are a lapsed scamblogger, you’re welcome to post here.  If you write elsewhere, you can also write here.  If you’re a law student, an applicant, someone who avoided law school, a graduate, a successful lawyer, an unemployed lawyer, a concerned law professor, we don’t care.  All are welcome to write here, to have their voices heard, to be more than just a comment on someone else’s blog.

The requirements of posts will be simple: (1) keep the tone as professional as Professor Campos did on Inside the Law School Scam, (2) keep the post relevant to legal education, life as an employed or unemployed lawyer, or student debt, and (3) keep the quality of the writing professional.

(jbl).

March 6, 2013 | Permalink | Comments (0)

Basic office tech skills for new lawyers

This post from the Lawyerist blog makes the point that new lawyers need to know basic office technology skills so they're able to copy, scan, fax, e-file and create pdf's when the support staff is not around (like late at night).  Other "basic" technology skills you need to know?  How about

  1. The ability to add Bates numbers to a document;
  2. The ability to redact information from a document;
  3. The ability to create a letter on your firm letterhead;
  4. The ability to set up and run a conference call and add individuals to a call; and
  5. The ability to conference someone into a call on your cell phone.

For a primer on electronic filing click here.

(jbl).

March 6, 2013 | Permalink | Comments (0)

Should Law Schools Teach Financial Literacy?

Over at Mauled Again (March 4), my colleague and fellow blogger Jim Maule concludes that the answer is no. That job, he argues, belongs at the K-12 level. Here is an excerpt:

The role of K-12 education is two-fold. It is to prepare students to live life, and to prepare students who wish to continue their education to do so. To prepare students to live life, the K-12 system needs to teach the things that ought to be known or understood by all citizens regardless of chosen profession. Financial literacy is one subject that comes to mind, along with civics, first aid, reading, writing, and arithmetic. Undergraduate education should focus on the subjects that are necessary or helpful to acquiring a skill in a particular area, whether it is chemical engineering, statistics, biology, or anthropology. Graduate and professional education should focus on the subjects that are necessary or helpful to pursuing a career in the specific profession or area of study. The fact that law schools have hired individuals to teach basic writing and grammar skills to law students that ought to have been learned long before high school graduation not only is symptomatic of the deterioration of the American education system but also one of the answers, though a small one, to why the costs of legal education have increased.

You can read more here.

(ljs)

March 6, 2013 | Permalink | Comments (0)

LST Winter 2013 Transparency Index Report

Here is a summary:

This report presents LST’s two-fold analysis of consumer information on law school websites. First, we analyzed whether law schools published the two charts required by ABA Standard 509, and whether their websites contained incomplete, inaccurate, or misleading information prohibited by Standard 509. Second, we analyzed affirmative efforts by law schools to be forthcoming with class of 2011 employment data they possess, but are under no regulatory obligation to publish.

Our chief findings, based on data collected between December 18, 2012 and January 9, 2013, are as follows:

- Of the 199 ABA-approved law schools, 78.4% (156/199) did not meet the expectations set forth by Standard 509.

- 65.3% (130/199) failed to publish one or both charts required by Standard 509. 20.6% (41/199) did not publish either chart.

- 46.2% (92/199) published consumer information that was incomplete, inaccurate, or misleading, as prohibited by Standard 509(a).

- Of the 198 schools that graduated students in 2011, 56.1% (111/198) went above and beyond the minimum regulatory standards and met one of ten transparency criteria. 17.7% (35/198) met all ten criteria.

- 47.0% (93/198) published some salary information that’s neither incomplete nor misleading.

We sent our findings to the dean, career services office, and admissions office of 199 ABA-approved law schools, along with explanations of the requirements, common problems, and what we expect law schools to disclose as a matter of practice. We then consulted with law schools about how they can meet the Transparency Index's criteria. With our guidance and just a small amount of motivation by administrators, we saw immense improvement in law school consumer information. Unfortunately, there is still a long way to go.

You can find the complete report here.

(Scott Fruehwald

March 6, 2013 | Permalink | Comments (0)

Report on ETL Conference 2012: The Development of Professional Identity in Legal Education: Rethinking Learning and Assessment

Last fall, Educating Tomorrow's Lawyers held a conference on developing students' professional identity.  You can find a Report on this conference here.

The Report describes the presentations:

"The presentations at the Conference were designed to foster intellectual engagement and growth among the Consortium schools around the topic of professionalism and educating for professional identity development by providing participants with a chance to interact with a number of researchers and recognized expert practitioners. Topics they addressed included learning theory and research on law students' moral development; there was also a comparative perspective from medical education. All presentations were designed to provide participants with state-of-the-field knowledge about how professional identity is conceived today and the kinds of educational strategies that seem most promising as a means to foster it."

The Report is very worth reading because it contains many innovative ideas on how to teach law students professional identity.

(Scott Fruehwald

March 6, 2013 | Permalink | Comments (0)

Tuesday, March 5, 2013

"Beditation" is new technique that may help students perform better on exams

Essentially it's about taking some time before exams to chill out while lying down (though maybe you'll agree that the term "beditation" add a soupcon of scientific legitimacy).  Thanks to Stephanie West Allen for the link to the story from The Guardian (UK).

Could beditation be the answer to exam nerves?

'Mindfulness' is the latest big thing in schools. What is it and why is it so popular?

Many year 11 students have recently been sitting GCSE mock exams. It is a stressful time. One teenager, Jess, describes her state of mind. "I was so nervous before the English language exam," she says. "I did, like, twenty 7/11s." 

A "7/11" is not the latest in teenage kicks, but a breathing exercise characteristic of a movement that is undergoing a surge in popularity in schools, known as "mindfulness". The 7/11 is a relaxation breathing exercise. Matching the counting to the breath, you breathe in for a count of seven, and out for a count of 11. It works for teachers, too.

Another technique much in evidence under mindfulness is called "beditation" – again, not something to panic a teenager's parents, but simply the practice of meditation while lying down.

About 3,000 students in Britain have been taught mindfulness techniques, and numbers are growing. This month there will be the first international conference on mindfulness in schools, in London, where teachers and experts will gather and Prof Willem Kuyken, who heads a mindfulness research unit at Exeter University, will present some new results.

The "7/11" and "beditation" techniques are being taught in schools through a programme called ".b" (Stop, Breathe and Be) designed by two teachers, Richard Burnett and Chris Cullen, who together formed the Mindfulness in Schools Project in 2007. "We were both finding great benefits from mindfulness ourselves," says Cullen, "and had started introducing simple mindfulness practices to classes in the schools where we taught. The response from students was striking and inspired us to create a programme that they would find fun, accessible and of genuine use in their lives." The course is now being taught in 12 countries.

Mindfulness in a nutshell is the practice of becoming aware of what is happening in the present moment and of learning to relate more skilfully to thoughts, emotions, body sensations and impulses as they arise.

The methods have developed over 2,500 years, from roots in eastern philosophy. One of the reasons for the interest is the fact that no religion or spirituality is involved. In the west, it was American molecular biologist Jon Kabat-Zinn who began to develop an eight-week meditation programme for patients at the hospital he worked in. This course became the Mindfulness Based Stress Reduction (MBSR) course.

The recent surge in popularity is also buoyed by backing from the scientific community. The evidence that mindfulness training reduced the rate of depressive relapse by about half led to its recommendation by the National Institute for Health and Clinical Excellence in 2004 as a treatment for depression, and there is a growing body of research suggesting that it can help to treat a range of mental-health problems, improve performance in sport and the performing arts, and bolster happiness and wellbeing.

. . . .

Continue reading here.

(jbl).

March 5, 2013 | Permalink | Comments (0)

March 4 Was National Grammar Day

We almost missed it! Here’s a link to Grammar Girl, listing all the ways you can celebrate in the afterglow.

(ljs)

March 5, 2013 | Permalink | Comments (0)

Women Making Partner, Gaining Ground

Last year, The American Lawyer began tracking partner promotions at large firms to see how women candidates were faring.  In 2012, its study found that 30 percent of lawyers making partner were women. Here’s information on this year’s study:

With [last year] as a benchmark, we examined the 1,926 partner promotions made by 183 firms in 2012 and found that the ratio of women had edged up to 32 percent. Some firms, of course, fared better in terms of the male/female breakdown. Choate Hall & Stewart and Hughes Hubbard & Reed both had new partner classes that were entirely female (to be fair, each only promoted one lawyer). The five firms at which women constituted a majority in new partner classes of 10 or more also deserve mention: Fox Rothschild (7 women of the firm's 13 new partners), Jackson Walker (7 of 11), Littler Mendleson (7 of 13), Ogletree, Deakins, Nash, Smoak & Stewart (9 of 16), and Perkins Coie (7 of 12). At the other end of the spectrum, 27 firms—including Haynes and Boone (nine new partners) and Ice Miller (eight)—did not promote a single woman to their partnership ranks in 2012. (Click here to see last year's interactive Women Partner Watch chart.)

Judging by the 2013 partner promotion announcements we had received from 66 firms as of February 22, women are making additional gains this year. Of the 717 new partners those firms promoted, 250, or 35 percent, were women. At five firms—Including Nixon Peabody (8 women out of 13 new partners) and Carlton Fields (8 out of 12)—the ratio tops 60 percent. Meanwhile, some firms that fared poorly by this measure of gender diversityin 2012 are doing better this year. That includes Haynes & Boone, where three of this year's eight new partners were women.

You can access the interactive chart here.

(ljs)

March 5, 2013 | Permalink | Comments (0)

Monday, March 4, 2013

New York Law School to offer civil servants scholarships to attend

Because some of them are full tuition scholarships, this is a win-win.  From The New York Law Journal:

City police officers, firefighters and other government workers interested in studying law are now eligible for scholarships from New York Law School. The new program, geared toward part-time students working at full-time jobs, will provide three full-tuition and 12 half-tuition scholarships beginning with this fall's incoming class.

Dean Anthony Crowell said he conceived of the idea because part-time law students who work in government, particularly members of law enforcement, have always added "depth and dimension" to discussions in classes he teaches. "This is an opportunity for them to reach their goal of obtaining an advanced degree while helping New York Law School reach our goal of serving New York and its citizens," Crowell said. Crowell's own background is in government: for 15 years he held various positions in city government, most recently as counsel to Mayor Michael Bloomberg before becoming law school dean last May.

Funding for the scholarships will come from alumni donations to the school and private donations for the scholarship specifically, Crowell said. Eligibility will be based on undergraduate GPA, LSAT score and a demonstrated commitment to community service.

(jbl).

March 4, 2013 | Permalink | Comments (0)

Oil and Water Don't Mix: A Dangerous Combination of Equal Protection and Federalism in the Same-Sex Marriage Cases

Last fall, I noted that the First Circuit had used a strange mix of equal protection and federalism in striking down section 3 of DOMA in  Massachusetts v. Dept. of HHS.  (here)  I noted in that post that not only was the combination unprincipled, but that it was unecessary; the Court could have struck down section 3 based just on Romer v. Evans.

Now, others are also bringing federalism into the same-sex marriage debate and the cases currently before the Supreme Court.  Several scholars have argued that "Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a 'necessary and proper' measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status. . . .  Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any 'legitimate' interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers."  (Volokh Conspiracy summary here; amicus brief here)

In sum, "While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA."

Both the First Circuit and the law professors' amicus arguments are dangerous, at least to proponents of same-sex marriage.  If the Supreme Court were to adopt either rational, then an argument could be made that states can ban same-sex marriage based on federalism considerations.  This would mean that some states would have same-sex marriage and some wouldn't, causing a patchwork system of marriage and raising more equal protection problems.

The theoretical problem is that equal protection and federalism are different things.  One is a right against the government, and the other is division of power between federal and state governments.  Since the equal protection clause applies to both the federal and state governments, federalism considerations are irrelevant in an equal protection inquiry.

I am a moderate proponent of federalism. (The Principled and Unprincipled Grounds of the New Federalism: A Call for Detachment in the Constitutional Adjudication of Federalism, 53 Mercer L. Rev. 811 (2002))  I think that the Court should enforce those matters within the text of the Constitution--the limits on Congress's powers and the tenth amendment.  On the other hand, I do not believe that basing federalism on things outside the constitutional text, such as the understanding at the time of enactment, which has been the justification for state sovereign immunity against Congressional enactments, is valid.  In this case, I think it is a major stretch to find any support for a federalism argument in the constitutional text. 

In addition, marriage and the benefits of marriage are separate issues.  (I have made this argument previously in connection with choice of law and same-sex marriage, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999)) It has always been within the states' powers to define marriage, but how the federal government spends its money is  federal power.  Moreover, as one of the comments on the Volokh Conspiracy noted, "If marriage isn't 'commercial activity,' then what is it? Seems to me 'marriage' means two distinct things - a religious/social construct meant to sanctify certain relationships and prohibit others, and a set of commercial agreements and transactions undertaken between two people. The former, in my view, is entirely outside the purview of government - it's entirely a religious, social, or personal matter and should not be regulated by the state in any way. It's the latter that is important - the financial and contractual arrangements - and that's precisely why denying those arrangements to certain people based upon sex, race, or other prohibited class should be considered discriminatory."  Another comment stated, "The Feds are allowed to have a Fed definition of marriage for the purposes of Fed programs, and there frankly doesn't need to be any 'efficiency' justification, or any real justification at all. If the Congress passed a law abolishing all relevance of marriage for federal income tax purposes, that would raise essentially no Federalism questions. And if the Congress passed a law making 'blue-haired' or 'Fnord' a category for federal income tax purposes, that would raise essentially no Federalism questions."

As I stated in my earlier posts, I think the court will strike down same-sex marriage limitations in these cases based on Romer v. Evans (assuming the Court doesn't find any standing problems).  I also believe that the sex-discrimination argument is a good one (here), but I doubt it will get five votes.  However, in sum, I think that mixing equal protection with federalism is unwise because it will create an argument that the states have the power to ban same-sex marriage.

(Scott Fruehwald)

March 4, 2013 | Permalink | Comments (0)