NULRO Book Symposium on The Common Law Inside the Female Body

By: Anita Bernstein

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Framing Trans Rights

By: Marie-Amélie George

Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor

By: Bertrall L. Ross II & Douglas M. Spencer

Bankruptcy’s Cathedral: Property Rules, Liability Rules, and Distress

By: Vincent S.J. Buccola

The Transgender Military Ban: Preservation of Discrimination Through Transformation

By: Michele Goodwin & Erwin Chemerinsky

Matter of A-B-, LGBTQ Asylum Claims, and the Rule of Law in the U.S. Asylum System

By: Nora Snyder

Framing Trans Rights

By: Marie-Amélie George | November 1, 2019

In the wake of marriage equality, opponents of LGBT rights refocused their attention, making transgender rights their main target. To persuade voters to maintain gender identity antidiscrimination protections, LGBT rights campaigns presented trans identity in a specific, but limited, way. These campaigns emphasized gender-conforming transgender individuals—those who adhere to male and female stereotypes—and thereby implicitly reinforced the gender binary. Although LGBT advocates have largely succeeded in their efforts to preserve LGBT rights, their messaging may undermine the movement’s broader litigation strategy and subject nonbinary members of the transgender community to greater discrimination and persecution. The trans rights framing choices thus raise questions about how the LGBT movement’s advocacy decisions blur the lines between success and failure, advancement and retrenchment. To explain this tension, this Article details the history of marriage equality campaign strategies, drawing on primary source campaign materials to identify how and why LGBT rights groups applied those frames to trans rights, as well as the consequences of those framing choices. This Article then analyzes the motivations behind social movements’ framing decisions more broadly to argue for an alternative approach to trans rights advocacy. Framing trans rights is a significant issue that extends far beyond whether a specific city or state maintains or eliminates its gender identity protections. Although framing in an electoral campaign may seem far removed from the work of courts, legislatures, and administrative agencies, this Article demonstrates how porous the boundaries are, such that the frames of the former have a substantial impact on the latter. Drawing on the scholarly literature on acoustic separation, popular constitutionalism, and slippery slopes, this Article explains why LGBT state and local ballot measure contests cannot be separated from the movement’s broader strategies. It therefore demonstrates that electoral frames are integral to legal advocacy writ large.

Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor

By: Bertrall L. Ross II,Douglas M. Spencer | November 1, 2019

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws. We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did for African Americans. This form of suppression excludes the poor. To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression. Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since), along with other public sources of data, we show how campaigns employ a “calculus of contact” to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters—mobilization activities that have a sizeable turnout effect. In our view, the most significant voter suppression tactics of the twenty-first century are therefore not what legislatures are doing, but what campaigns are not doing. We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such a change could force campaigns to adjust their calculus of contact and contact more low-income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.

Bankruptcy’s Cathedral: Property Rules, Liability Rules, and Distress

By: Vincent S.J. Buccola | November 1, 2019

What justifies corporate bankruptcy law in the modern economy? For forty years, economically oriented theorists have rationalized bankruptcy as an antidote to potential coordination failures associated with a company’s financial distress. But the sophistication of financial contracting and the depth of capital markets today threaten the practical plausibility, if not the theoretical soundness, of the conventional model. This Article sets out a framework for assessing bankruptcy law that accounts for changes in the technology of corporate finance. It then applies the framework to three important artifacts of contemporary American bankruptcy practice, pointing toward a radically streamlined vision of the field. Bankruptcy’s virtue, I contend, lies in its capacity to replace “property rules” that may protect investors efficiently when a company is financially healthy with “liability rules” more appropriate for distress. In domains where investors are unable to arrange state-contingent toggling rules, bankruptcy law can do it for them. This agenda plausibly justifies two important uses of Chapter 11—to effect prepackaged plans of reorganization and conclude going-concern sales—but casts doubt on what many suppose to be the sine qua non of bankruptcy, the automatic stay. More broadly, the analysis suggests that an “essential” bankruptcy law would look very different, and do much less, than the law we know.

Nw. U. L. Rᴇᴠ.

Public-School Moralizing is No Reason to Overturn Blaine Amendments

October 15, 2019

In November, the Supreme Court will hear argument in Espinoza v. Montana Department of Revenue, in which it will decide whether states with voucher-like schemes must allow those funds to be used at religious schools. Writing for SCOTUSBlog on September 17, Jim Kelly highlighted an underappreciated aspect of this debate: that private religious schools are not the only schools with […]