2019, Vol. 113, No. 4
Conventional wisdom suggests that a constitutional right should be defined so as to effectively constrain government actors. A right defined in terms of what state actors routinely do would seem to impose in practice an ineffectual brake on much intrusive state action—and so seems pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of contemporaneous government actors to define the constitutional floor for police action. The actions of the regulated thus define the content of regulation. This Article isolates and analyzes this seemingly paradoxical judicial practice, which it labels “Fourth Amendment gloss,” by analogy to methodological practices elsewhere in constitutional law. The latter is examined through a comparison to a similar, albeit not identical, mode of reasoning used in separation of powers cases. The justifications for gloss in the latter domain are more fully developed and hence provide useful benchmarks for evaluation of Fourth Amendment gloss. The Article’s first aim is descriptive—to catalog the various ways in which “gloss,” or official practice, is deployed across the Court’s search and seizure case law. This exercise shows that many frequently exercised search and seizure powers have been constitutionally defined in terms of official practice. The Article’s second aim is to ask whether judicial reliance on such gloss can be justified. There are three general justifications for the use of official practice as a source of law in constitutional interpretation. These can be labeled the acquiescence, Burkean, and settlement justifications. A careful examination of the empirical and theoretical contexts of the Fourth Amendment suggests, however, that none of these three justifications supports gloss’s use as a way to define lawful searches and seizures. If gloss persists today, therefore, it is for institutional and ideological reasons—not because it is theoretically warranted. Given this conclusion, the Article offers ways to limit the error costs associated with the use of Fourth Amendment gloss.
Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.
The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct.
But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct.
As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values.
Notes & Comments
We have a First Amendment right to criticize the government. But this freedom does not translate into a right to criticize one’s boss even if, as for millions of Americans, one’s boss happens to be a government employer. Public employee speech doctrine has long established wide latitude for public employers to supervise their workers. Employees must show at the threshold that their speech was on a matter of public concern and not an internal workplace matter. The Supreme Court’s pronouncements over the last decade in a related doctrinal area, however, have unsettled the line demarcating workplace speech. In its agency fees cases, the Court has repeatedly stated that when a union speaks on matters of interest to the general public, even internal workplace matters, it triggers constitutional scrutiny. Taken at face value, the new definition of matters of public concern in a government workplace provides a basis for employees to claim expanded free speech protection. This Note is the first scholarly work to propose how public employees will claim expanded speech protection on the basis of the Court’s holding in Janus v. American Federation of State, County, and Municipal Employees (AFSCME). The expanded definition of matters of public concern is likely to destabilize public employee speech doctrine, causing uncertainty for employers as to how to supervise employees in compliance with the First Amendment.
On July 30, 2018, the U.S. Department of Housing and Urban Development (HUD) rule prohibiting residents of public housing from smoking within twenty-five feet of any housing project took effect. These new regulations—HUD’s “smoke-free policy”—received near-universal acclaim as a means to improve public health, in particular by reducing vulnerable populations’ exposure to secondhand smoke. This Essay analyzes the smoke-free policy from the perspective of healthism—discrimination on the basis of health status. We argue that banning public housing residents from smoking is unfairly discriminatory for a variety of reasons. To start, the rule may not achieve its desired effects. Because a violation could lead to eviction, the policy may well push many public housing residents out onto the street, ironically worsening health outcomes. The rule also intrudes into the private lives of smokers in public housing by forbidding them from engaging in lawful conduct in the sanctity of their homes. It singles out smokers for regulation in a way that validates stigma. Finally, HUD’s smoke-free policy poses unappreciated distributional concerns, with the heaviest burdens falling on historically disadvantaged populations like the elderly, people with disabilities, certain racial and ethnic minorities, and the poor. The Essay concludes by attempting to salvage the rule by reflecting on how HUD might modify its policy to improve compliance and avoid discrimination, including smoking shelters, smoking cessation support, and incentive structures.