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The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service in Iraq, five couples in the unit got married. Amanda and Todd McCormick were one of those couples. The McCormicks spent their first year of marriage in an active war zone, where their duties included training the Iraqi police force, providing base security, and guarding detainees for the Army. And they did all this without being able to kiss, hold hands, or even be alone together in the same room. Shortly before the unit shipped out to Iraq, the commander of the 940th issued a new policy for the unit. Concerned that sexual relationships would interfere with the work to be done in Iraq, the commander decided to prohibit the members of the 940th from having sex. Under the unit’s new “no contact” policy, members of the 940th could not engage in “sexual contact, hand holding or kissing” while the unit was deployed to Iraq. For the McCormicks and the four other dual-serving couples in the 940th, their marriages did not excuse them from the new policy. According to the memo outlining the policy, although married couples in the unit could have sex on leave, they could not engage in sexual conduct of any kind during active deployment. In the summer of 2005, about halfway through her year of service in Iraq, Amanda McCormick emailed her congressman to complain about her unit’s no contact policy. In the email, she referred to an incident where Todd came to visit her in her living quarters while she was on a down day. Although they were fully dressed and the lights in the room were on, a superior discovered them together and told Todd to leave. The risks of violating the policy were substantial. Simply for being alone together, the McCormicks could have lost rank, had their pay docked, or been put on restricted duty. “We are not allowed to live together. We are not allowed to spend time alone together. Basically, in a nutshell, we are not allowed to be married,” McCormick wrote in the email. All the couple wanted was some private time together. “We are stationed on the same base, in the same unit. Instead of that fact being comforting, it has made us sick with worry.” The McCormicks’ experience in Iraq highlights an underappreciated, if not completely overlooked, fact about military life: the military regulates a considerable amount of heterosexual sex. For the McCormicks and the rest of the 940th, the military completely banned engaging in any kind of sexual conduct while they were deployed to Iraq. This is just one way in which the military regulates heterosexual sex. As this Essay shows, the military’s rules regulating sex come in various shapes and sizes, from blanket rules against sex altogether, like in the McCormicks’ case, to criminal laws targeting specific sexual acts and relationships, to a criminal penalty for becoming pregnant during active duty. The goal of this Essay is to examine the implications of the military’s regulation of heterosexual sex for its current policy toward homosexuality—the “Don’t Ask, Don’t Tell” policy (DADT). Heterosexuality is largely missing from the national debate over DADT, which has heated up in recent months due to President Obama’s open hostility toward the policy. Yet heterosexuality holds the key to understanding why DADT is based on a faulty premise. DADT is built around the idea that because gay sex disrupts unit cohesion—that is, because it prevents service members from forming the bonds of trust needed to succeed in combat—lesbians and gay men cannot be allowed to serve openly in the military. The policy rests on the idea that gay sex is more harmful to military effectiveness than other kinds of sexual conduct. Yet the military’s various rules regulating heterosexual sex are also aimed at protecting unit cohesion. If the military regulates a considerable amount of heterosexual conduct as a means to protect unit cohesion, why does DADT presume that gay sex poses a greater threat to unit cohesion than heterosexual sex? The military’s existing policies regulating heterosexual sex suggest that DADT’s focus on homosexuality is misplaced. What the military thinks of as a problem with homosexuality is really a problem with sexual conduct in general. This Essay makes two distinct contributions to the scholarly literature. First, it provides a new way of approaching the issue of gay military service. To date, the issue of gay service has been debated primarily in terms of whether the presence of openly gay service members would hinder military effectiveness. Indeed, the bulk of scholarly writing on DADT approaches the issue of gay service from this perspective. This Essay breaks from this trend by steering the conversation away from sexual orientation—and, in particular, homosexuality—and refocusing it on sexual conduct. After all, DADT is but one of the military’s many sex regulations, most of which impose considerable restrictions on the sexual lives of service members without regard to sexual orientation. By viewing DADT through this broader lens, this Essay paves the way for a more meaningful conversation about the military’s interest in regulating the sexual conduct of all the men and women serving in the armed forces, not just the ones who engage in same-sex sexual conduct.

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional. Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent. I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure that would require absent class members to take some affirmative action before being swept into a class action, and prohibition of settlement classes, which Professor Redish believes are often subject to abuse. The second portion of this Essay explores further implications and applications of Professor Redish’s theories.

Much ink has been spilled over the class action device. Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice. Seldom does a work break new ground in a field that has been plowed as often as that of class actions. Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception. In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional implications of the class action mechanism. Unlike prior commentators and courts, which have focused mainly on limited constitutional issues arising in class action cases, Professor Redish’s analysis sweeps more broadly. In the process, he brings to bear principles of constitutional law that have long lain dormant in the field of class action practice. His insights demonstrate that more than mere practical or policy concerns arise when class action procedures are used. Rather, they implicate—and often infringe—fundamental principles of constitutional law.

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.” Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School. In an article published recently in the Harvard Law Review, Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies. Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes”—zones where federal agencies are free to act outside the constraints of legal order. In addition, he suggests that federal courts manipulate flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes”—legal devices which preserve the façade, but not the reality, of the rule of law. Far from criticizing these gaps in federal administrative law, Vermeule accepts black and grey holes as institutional inevitabilities, and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference; I learned a great deal from each piece. I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation. The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.” Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning. It explores the ways in which we, as lawyers, “come to engage in . . . strategic reasoning,” and express “concern[] about [the] cost to our moral reasoning skills.” The core argument is that “lawyers are professionalized in a manner that undermines moral reasoning skills,” and that “[t]o suggest that we who are officers of the American judicial system are deficient in moral reasoning is to suggest a deep problem.” To address this deep problem, I suggest lawyers accept personal moral accountability for professional projects undertaken, idealizing those lawyers who choose their professional projects on personal moral grounds. Thus, I believe lawyers—such as the authors of the Torture Memo—are subject to criticism on grounds of morality and not merely professional technique. The responses of Professor Vischer and Professor Wendel, though thought-provoking, do not address my focus on the effect of legal training and practice on lawyers’ moral reasoning. Instead, the responses of Professor Vischer and Professor Wendel focus on the role of moral reasoning in legal reasoning.

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know. After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is. “Be careful of that guy,” you are told. “He is a man with a past.” A few minutes later, a fourth person enters the bar; he also sits alone. You ask your acquaintance who this new individual is. “Be careful of that guy, too,” he says. “He is a man with no past.” Which of these two people do you trust less? You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know. After an hour, a first witness walks into the courtroom and sits by himself on the witness stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He is an illegal alien.” A few minutes later, a second witness enters the courtroom; he also sits alone on the stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He cheats on his wife.” Which of these two people do you trust less? According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited. In United States v. Almeida-Perez, the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error. The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness. In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision. The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did“not directly relate to the Appellant’s truthfulness and honesty.” The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court. During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) were fully aware that the Summum litigation presented a double-edged sword. If Pleasant Grove argued too vigorously the theory that the existing Ten Commandments monument constitutes the city’s own message, then it risked violating the Establishment Clause in a follow-up lawsuit based on the same facts. If, on the other hand, Pleasant Grove attributed the monument’s message to its 1971 donor, then the city would be hard-pressed to explain why Pioneer Park was not, as Summum claimed, a public forum that must be potentially open to all monuments without discrimination based on content or viewpoint. The tension pervaded the oral argument. Chief Justice Roberts opened the discussion with an observation that the city was in a double-bind. Justice Scalia guided the city’s lawyer into a discussion of Van Orden v. Perry, a 2005 case in which the Court upheld the constitutionality of a public Ten Commandments display. Justice Souter pondered the possibility of discrimination. And Summum’s lawyer frankly acknowledged that the city was “on the horns of a dilemma” facing either a Free Speech or an Establishment Clause violation. Ultimately, however, the U.S. Supreme Court unanimously decided that in selecting monuments for Pioneer Park the city was engaged in government speech; the city could therefore control the content of its message without violating the Free Speech Clause. Significantly, the Court found that the city need not formally adopt the message of an existing park monument in order for that monument to constitute government speech. The stage was set for Summum’s Establishment Clause claim, but that claim would have to wait for another day.

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules. Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages should award owners restitution. In this Response, I am significantly disadvantaged by the limitation that I sympathize strongly with Parchomovsky and Stein’s prescriptions. Nevertheless, I am confident that I can offer an enlightening perspective on their essay, because I prefer to reach their prescriptions by a different method: the conceptual and moral philosophy behind property law. From the perspective of those fields, Reconceptualizing Trespass presents a mixed but extremely interesting picture. If we focus closely on Reconceptualizing Trespass’s doctrinal proposals about trespass damages, the Essay is right: it uncovers important evidence corroborating existing philosophical scholarship on damage remedies for property torts, and it highlights an important gap in that scholarship. From a broader perspective, however, Reconceptualizing Trespass confirms criticisms that legal philosophers have lodged against the Cathedral’s property/liability rule scheme. Many legal scholars regard the Cathedral as a landmark, and it seems to frame clearly the policy questions latent in remedies disputes without settling them in any particular way. Yet legal philosophers have raised serious questions about whether the property/liability scheme remains faithful to basic legal concepts—especially the “wrong” that damage awards are supposed to remedy in torts to victims’ autonomy interests, or the “exclusivity” that property guarantees owners in relation to their assets. Although Reconceptualizing Trespass makes several significant contributions, legal philosophers may fairly wonder whether its greatest contributions confirm their criticisms of the Cathedral’s approach to remedies.

There are enough questions on the table to get us going, so I’ll focus on responding to some of them. First, to an issue raised by Salil Mehra and Tom Ginsburg, I generally follow the approach taken by Trubek and Santos in The New Law and Economic Development. Their approach defines the field (“doctrine”) of Law and Development to encompass the activities of legal assistance providers, as well as the ideas about law, and about development economics, that animate their work. There are different strategies for studying the providers’ activities, and Terence Halliday and Bruce Carruthers’s research for their book, Bankrupt, provides an outstanding example of the detailed sociological work some Law and Development scholars undertake. But the academic enterprise doesn’t really seem separable from the activities of the providers. We could discuss the pros and cons of that dependence, but I do not think we can avoid it. The institutional players in the field rise and fall in importance over time, the ideologies concerning law and economics that animate their work change over time, the external environment affecting the institutions changes over time, and this complex, dynamic stew provides the academic core of Law and Development. The academic field is not merely the sum of the projects, as Tamanaha appears set to argue, but is instead the study of those projects in their political, historical, and ideological contexts. The problem this background poses for the scholar is that he or she must first figure out a level of engagement with the institutional players that will allow the scholar to understand what is actually going on inside them, and in their relations with national governments, while leaving the scholar free to provide serious academic analysis and critique. I sometimes joke that Law and Development is a field where those who know don’t talk, and those who talk don’t know, but it is actually a serious problem for a scholarly field.

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: procedural due process. By creating powerful disincentives for anti-evolutionist policymakers, procedural due process concerns could affect the future of evolution education even more profoundly than does the Establishment Clause. This Essay explores the relationship between evolution education policy and procedural due process by first identifying and defining the adjudicative model. It then considers the model’s constitutional ramifications for evolution instruction, concluding that this new approach to policymaking introduces procedural due process concerns that radically alter the legal and political calculus of the debate over evolution education.