Playbook for Student Resistance

This post originally appeared on Medium.

By Professor Ray Brescia

The results of the recent election have triggered much soul searching, perhaps no more so than with students enrolled in colleges, law schools, and other institutions of higher education, wondering what kind of world awaits them. Many are frustrated, asking if there is more that could have been done to change the outcome of the election, or what can be done now to protect our most vulnerable communities from harm, discrimination, and the fear of persecution. I teach now, in a law school, and I have heard the anxiety and confusion in my students’ voices, and seen it in their eyes. But I’ve also seen something else: a desire to get involved, to do something, to play a part in something bigger than themselves, to have a role in combatting discrimination and the forces of fear.

I was a student once too, and my fellow students and I saw injustice in the world and wanted to correct it. It was why many of us had gone to law school in the first place. This was in the middle of the first Bush Administration, when a so-called New World Order meant disruption throughout the world and a new American dominance on the global stage. When a coup in Haiti ousted the democratically elected president, Jean-Bertrand Aristide, thousands of political refugees fled the country, many by boat, and fears of an influx of these refugees in the battleground state of Florida (the 1992 election was looming), set the Bush Administration to open a camp for them at a place few had heard of before: the U.S. Naval Base on Guantánamo Bay, Cuba. At first, the camp became a staging ground, where refugees would be assessed for their claims of political asylum. Consistent with the U.S. government’s international obligations, if the refugees were found to have a credible asylum claim, they would be taken to the United States for processing of that claim, with full due process protections.

But this was also a time of AIDS hysteria, and the Haitian refugees were screened for their HIV status. If a refugee tested positive, he or she was detained, indefinitely, in the camp. Given their health status, one government official even said they would likely die there.

Click here to read the entire column at 

Teaching to the Traumatized

By Professor Mary A. Lynch, Kate Stoneman Chair in Law and Democracy

This past week has been a difficult one for law teachers and law students alike. The National Law Journal reported efforts made by law schools to support shocked students amidst “an emotionally charged and grim atmosphere” while taking “pains to ensure their election–related events are nonpartisan and respectful of all political positions.”  The Journal noted that the legal academy has a “well-established liberal bent” and quoted a California law professor who opined that perhaps some students were shocked because “the media and the polls did not prepare them for the actual result.” I can attest that what my colleagues and experienced this week was not the whining of a “liberal elite,” nor the unexpected disappointment of those certain their candidate who upheld their beliefs was sure to win.  What we experienced was having to teach and mentor the traumatized.

First, let me give you some background. I teach at a small, private, law school in upstate New York where one is just as likely to teach a former farmer who has never stepped foot in New York City as a New York City native who thinks Albany, New York is cow country. Often, you are teaching both together in the same class. Located in a capital city, we are very used to having students actively involved in opposing campaign teams sitting side by side in class and sharing notes.  As New York lawyers, we do not take offense at direct, unembellished, sometimes abrasive language.   A large number of our students wear business attire to class because many of them are working while attending law school; another group are primarily caring for children while enrolled in classes. There are very few trust-fund babies. Our students have an old-fashioned work ethic and are generally more civil, polite and deferential to elders than one might expect in 2016.  We emphasize open office doors and immersive faculty-student contact in good times and in bad.  Historically, we have been known to have a law and order bent and most years produce more prosecutors than the national average. Our students are also more diverse and female than when I started teaching in 1989.

As a professor who currently teaches students to prosecute domestic violence abusers and sexual assaulters and who has had countless listening sessions with victims and survivors of sexual assault and intimate partner abuse, I found that I was asked to call upon that knowledge to support, counsel, and simply listen to students. Trauma- informed lawyering calls for connecting “a person’s behavior to their trauma response rather than isolating their actions to the current circumstances and assuming a character flaw.” Sarah Katz, Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 Clinical L. Rev. 359 n5  (2016) citing Sandra L. Bloom, Why Should Philadelphia Become a Trauma-Informed City, Briefing Paper Prepared for the Philadelphia Mayoral Forum, sponsored by the Scattergood Foundation (2015), 

First, I acknowledged that most of the fears expressed were not unreasonable or “crazy”. And man o man, are their fears reasonable.

  • It was reasonable for female students to fear that their birth control coverage could or would be eliminated and that their personal control over their own bodies could be eliminated again during their careers. (Note that while I was typing this blog post line the following New York Times article popped up on my computer trying to analyze whether the new President and his team will do just that.
  • It was reasonable to fear for immigrant family members who might need to make a safety plan and keep documentation very secure because of the rhetoric around immigration.   (Our Immigration Clinic Professor Sarah Rogerson has had to quickly pivot to address the uncertainties her students face in trying to properly advise clients with immigration issues in the face of what has been threatened during the campaign)
  • It was reasonable for students to fear that younger family members would be more at risk because of the President-elect’s inflammatory language targeted at communities of color, Mexicans, and Muslims or that they would be more at risk because of their transgender identity.
  • It was reasonable for my prosecution students to fear that working at the Department of Justice in the new era included might mean threatening and jailing political opponents. See Legal Intelligencer (A presidential candidate, in a script written and performed by despots everywhere, threatens to lock up his political opponent if he prevails. Of all the feared abuses of government power, isn’t this the most frightening of all-the power to falsely accuse and wrongly imprison?)

Second, I deferred to the expertise of my students on non-gender issues. And man oh man, are they experts. In anti-domestic violence work, we often say “She is the expert on the abuser.” That analogy was apt here.  Our students who have faced hateful racial or sexual orientation/identity slurs, illegal stop and frisks, and unwarranted suspicion because of their Muslim religion understand in a visceral and concrete way the signals and the risks for safety that I can only imagine and predict intellectually.  And just like survivors of abuse, they were right about predicting the coming violence. The Southern Poverty Law Center has counted at least 200 incidents since the election and the list keeps growing. These incidents include a Victory parade by the KKK and children being exposed to racial epithets in public school.

Third, it was appropriate for my students to be stunned by the Jekyll and Hyde quality of America. Survivors of abuse talk about being stunned when the first time the abuser raises a hand or when the violence dramatically escalates is during pregnancy. It seems counter-intuitive.  Similarly, my students married themselves to the American dream of fairness. They worked hard, they thought their race or gender or ethnicity or religion would not bar them from reaching their dreams. Students interpreted the voting statistics understandably as a hateful, fearful rejection of them and their dreams.  A wide swath of the American populace – the folks that as lawyers they want to represent and serve – failed to stand up at the polls and say NO to hate and bias.

Fourth, although on paper our Constitution and civil rights protection are terrific, in practice they are only as good as the human beings who are elected to uphold them. Just as it is counterproductive and dangerous to advise survivors of violence that the legal system will be fair, protect the innocent and hold the abusive accountable, so too it would be fool hardy and dangerous for me to try to comfort my students by minimizing their concerns and assuring them everything will be fine.

Fifth, my colleagues and I had to find ways to empower students, just as a client-centered lawyering or victim-centered prosecution would. Some of us spent much time doing this through faculty office conversations, checking in with students in clinic workspaces or in hallways or the cafeteria. I sent e-mails quoting Tolkien, Harry Potter, Langston Hughes, and Leslie Knope and video clips of Maya Angelou’s “Still I Rise” and welcomed suggestions back regarding James Baldwin and Van Jones.  On threads on our faculty e-mails, we shared advice and ideas and reactions.  Two of my colleagues decided to take the trauma and fold it into an empowering teaching activity about lawyering. Professor Christian Sundquist  reacted to the upset and depressed-looking faces in front of him on Wednesday in his Tech and Privacy Law class by asking the students to engage in a short reflection exercise on how they would describe the impact a Trump presidency may have on the status of privacy law and rights (e.g., surveillance, health decisional rights, etc.). The students thanked him for artfully addressing the “elephant in the room.” Another colleague, Professor Keith Hirokawa, who teaches Environmental Law, noted the “awkwardness in the air” and the distracted human beings sitting in front of him given that a climate change denier is the lead Environmental voice on the transition team. He adapted his teaching this week using a class design model provided by Professor Victor Flatt assigning students to think through and draft memoranda to the Presidential transition team on Environmental Issues.  A faculty peer observer noted

One takeaway from observing this class was that Keith was able to hold space for students with diverse opinions, while also providing a cathartic space for students who are grieving the outcome of the election. By engaging the students in the work that real lawyers are doing as we speak in Washington, DC and New York (the two host sites of the transition team), students were able to process their reactions through tangible legal research and policy analysis, developing their skills as emerging attorneys and (hopefully) finding some comfort in the law.

Sixth, we focused on self-care for students, staff, alums, colleagues and ourselves. We gave out hugs and food, took walks with students, and discussed exercise, nature, loved ones, favorite comfort activities. We explored how to create boundaries with those who were jubilant about their candidate’s victory.  I thought about the readings I provide students on vicarious trauma and how to overcome it and about Professor Jill Engle’s wonderful article “Taming the Tigers: Domestic Violence, Legal Professionalism, and Well-Being,” 4 Tenn. J. Race, Gender & Soc. Just. 1 (2015) describing how she and her clinic students struggled with the trauma induced by the death of their client at the hands of her abuser, just three days after they had served him with a divorce complaint. Professor Engle focused on her role as a “self-aware mentor” focusing and modeling self-care, balance and mindfulness. She reached out to other law professors and colleagues for help in navigating teaching through the crisis and she allowed the students to move from the stage of engaging in healthy professional self-awareness to using the emotions and trauma as a catalyst for social justice activity.

I also recalled the advice of well-respected researchers in the area of lawyer and law student mental health. Professor Engle aptly notes, “[G]reat teachers care how students are doing in life. Teachers that care about people help counter declining civility in the legal profession and convey the idea that people and their feelings matter.”  NANCY LEVIT & DOUGLAS O. LINDER, THE HAPPY LAWYER: Making a Good Life in the Law, 54 (2010). Professor Lawrence Krieger’s research leads him to assert that, “[f]aculty modeling is an indirect, but pervasive and powerful source of messaging to students about the appropriateness of authenticity, conscience, interpersonal awareness, and humility,” and that, “[s]elf-reflection . . . should lead us to conscious modeling of authenticity, inspiration, and the holistic personality our students will need as professionals dealing every day with the complex interpersonal situations typical of law practice”. Human Nature as a New Guiding Philosophy for Legal Education and the Profession, 47 WASHBURN L.J. 247, 289-90 (2008)

Seventh, we have started to assemble good information to provide for those students who want to use their legal skills, their empathy, their passion and their hurt as a catalyst for change. Just as good client-centered lawyers provide information about the law and the legal system to clients, in a hopefully non-judgmental way, so too we need to be resources for those students whose traumatic reaction progresses to energy around creating change. (More about that in my next post).

Many of our readers this week have done all I describe above and probably much more. If you are in the stage of the process in which you need to exercise self-care to truly be an authentic self-aware mentor, I encourage you to attend to that restorative need. If you have already moved into action on social justice, I applaud you. If you are thinking about the many lessons which are critical for legal education at this moment and how to teach them without reference to particular political outcomes, I invite you to post a comment below.  You are Great Teachers All.

This post originally appeared on the Best Practices for Legal Education blog.

Woefully Poor Performance of the United States on Global Access to Justice Ranking

By Professor Ray Brescia

Recently, the World Justice Project (WJP) released its 2016 Rule of Law Index.  The research initiative assesses the performance of 113 nations across the world on a range of metrics related to the rule of law.

According to the WJP:

The country scores and rankings for the WJP Rule of Law Index 2016 are derived from more than 110,000 households and 2,700 expert surveys in 113 countries and jurisdictions. The Index is the world’s most comprehensive data set of its kind and the only to rely solely on primary data, measuring a nation’s adherence to the rule of law from the perspective of how ordinary people experience it.

The United States did moderately well in a range of categories, as follows:

18th in the overall Rule of Law ranking;

12th for “open government”;

13th in the “constraints on government powers” ranking;

20th for “absence of corruption” ranking;

31st for “order and security”.

Where it performed terribly was in the “accessibility and affordability” of civil justice.  Out of the 113 nations ranked, the U.S. came in at a woeful 94, nearly thirty slots lower than last year, tying nations like Egypt and Tanzania, and coming in just ahead of Afghanistan and Uzbekistan.  Read the full report here.

This post originally appeared on The Future of Change blog.

Delaware Court Dismisses Challenge to Going Private Transaction

By Professor Christine Sgarlata Chung

Last month, I received my copy of Business Organizations in Focus in the mail from Wolters Kluwer.  I am incredibly grateful to have had the opportunity to work on this book with my wonderful co-author Deborah Bouchoux.  Every so often, I will post about recent developments relevant to the book and to the teaching of business organizations.  Please let me know if you have any questions or comments!

This purpose of this book update post is to alert readers to  In re Books-A-Million, Inc. Stockholders Litigation, C.A. No. 11343-VCL (Del. Ch. Oct. 10, 2016), a recent decision from the Delaware Chancery Court in which Vice Chancellor Laster addressed issues relating to the obligations of a controlling stockholder in so-called going private transactions.  The post relates to the material discussed in Chapter 11 (Changes in Corporate Structure and Corporate Combinations), and specifically to the discussion  at pp. 664-679 concerning Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014).

In a going private transaction, a corporation’s controlling shareholder seeks to buy out minority shareholders via a statutory merger.  See Del. Code Ann. tit. 8, § 251(a)–(c). Traditionally, Delaware courts subjected going private transactions to review under the entire fairness standard.  The entire fairness standard is the highest level of scrutiny applicable to takeover challenges under Delaware law.  It requires a reviewing court to evaluate the fairness of both the price (via the court’s own valuation assessment) and the process/course of dealing (focusing on the timing, structure, negotiation and disclosures, approval process, etc.) leading up to a challenged transaction.  See Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983).  Delaware courts initially placed the burden of demonstrating entire fairness upon the controlling shareholder-defendant.  In its 1994 decision Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1117 (Del. 1994), however, the Delaware Supreme Court left the entire fairness in place, but held that controller-defendants could shift the burden of persuasion under entire fairness review to plaintiffs by showing that the transaction was either (i) negotiated by a well-functioning special committee of independent directors or (ii) conditioned on the approval of a majority of the minority shareholders.  The applicable standard of review for transactions employing both procedural devices remained an open question.

Read more at Forum on Financial Market Regulation

Donald Trump and Sexual McCarthyism

By Professor Stephen J. Clark

A single word in the lede of a new CNN story signals a potential turn toward sexual McCarthyism in the furor over sexually graphic remarks by Donald Trump. The word? “Threesomes.”

Reviewing Trump’s sexual banter over his 17 years of appearances on Howard Stern’s radio show, the story emphasized Trump’s odd fixation on the sexual attractiveness of his own daughter, Ivanka, whom he eagerly described as “voluptuous.” He is also heard giving Stern permission to refer to her as “a piece of ass.” Yeah, gross.

Like the initial furor over Trump’s boasts about groping women, drawing critical attention to comments with an incestuous connotation seems fair game. Incest is a crime, of course, and although there is some limited debate about that, there is no cogent contention that the suppression of incest is unjust. Drooling over your daughter isn’t a civil right.

But slipped into the lede alongside those incestuous remarks and some sexist ones too was a casual reference to threesomes. “Among the topics Trump discussed: his daughter Ivanka’s physique, having sex with women on their menstrual cycles, threesomes, and checking out of a relationship with women after they turn 35.” Whoa! Has no one at CNN ever played Which of These Is Not Like the Others?

Sure enough, later in the story, CNN reporters breathlessly recounted a trite exchange with Stern’s co-host, an exchange in which Trump is said to have “willingly” admitted to having once had group sex with three women. My goodness, admitting to, well, technically a four-way without having it dragged out by waterboarding! What kind of modern-day Sodom has this country become?

What had made Trump’s previously reported remarks so outrageous was his sense of privileged entitlement to sexually assault any woman he finds attractive. Yes, that initial story was obviously sensational because of his colorful language; “grab ’em by the pussy” was indeed a click-baiter’s dream. But what most responsible commentators highlighted as most problematic was Trump’s cavalier disregard for consent. Here was a man who so casually presumed consent from every woman he met that he imagined he could just proceed with sexual touching at will without even considering the possibility of an objection.

But the “threesome” exchange was very different. It did have its own colorful motif about the cumulative weight of the three participants: “I would say could be about 375 [pounds]…. I figure 125 apiece.” Still, the number of participants joining in a sexual encounter tells us exactly nothing about the presence or absence of consent. No, it is not sufficient to declare that anyone wanting to participate has “false consciousness” and may be infantilized as incapable of consent. Approving the sexual choices of other people is not a precondition for keeping your nose out of them.

Sexual freedom matters most when disapproval is greatest. People may look askance at a pansexual dominatrix, but there is no threat to the freedom of a husband and wife to have unshackled intercourse in the missionary position with the lights out and the curtains drawn. As Justice Blackmun has correctly observed, “a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.” Let them.

As the media continue in the days ahead to unearth more sexually graphic commentary by Trump, it should be imperative in each instance to understand clearly why, if at all, any particular remark may be disqualifying for public office. Bragging about groping women without their consent is disqualifying; talking about past participation in a threesome should not be.

Commentators and voters who would never say that having a premarital hookup, a gay spouse, or an elective abortion disqualifies a candidate from office should extend the same deference to sexual freedom generally. Undifferentiated condemnation of Trump for remarks that include mere candor about consensual sex sets a precedent that is primed to boomerang. It also happens to be unjust.

Don’t like threesomes? Don’t have one.

Prof. Hutter Authors Amicus Brief in New York Court of Appeals Case

Prof. Michael J. Hutter has authored an amicus curiae brief to the New York State Court of Appeals in Ambac Assurance Corp. v. Countrywide Home Loans, Inc. He was asked to author such a brief by the New York State Academy of Trial Lawyers. The appeal will be argued on April 28. Click here for a copy of the brief.

Ambac presents an important attorney-client privilege issue. While the issue is one of first impression for the Court, courts outside New York, both federal and state, have reached conflicting results. Specifically, the issue is whether the common interest exception rule, which permits clients and their attorneys to share privileged communications with other clients and their attorneys without causing a waiver of the privilege when they share a matter of common interest in the litigation context, should be extended to the sharing of information in a non-litigation context, e.g., transactional matters. The issue as raised in Ambac arises out of a merger transaction where the two merging parties shared confidential communications in order to finalize the merger.

Prof. Hutter argues that that the common interest exception should not be so extended as there is no basis in law or policy to do so. His argument as developed traces historical rise of the common interest exception and shows how such exception as presently limited is consistent with the policy underlying the attorney-client privilege itself; and that the sought-after exception is inconsistent with that policy.

Law School, Group Projects, and Creativity

By Prof. Ray Brescia

How can a law school teach students to work in teams? To work collaboratively? To nurture their creativity and give them a chance to work on a cause larger than themselves? In a recent article, forthcoming in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba. In the piece, I explore these questions and more.

Adoption Decision Highlights Continuing Vulnerability of Same-Sex Spouses

By Prof. J. Stephen Clark

The fight over same-sex marriage is over, right? The Supreme Court certainly left that impression last year after Obergefell v. Hodges, when it vindicated the constitutional right of gay couples to get married. A recent decision out of Mississippi, however, highlights a possible vulnerability for lawfully married same-sex spouses. What, if anything, obliges a state to give them the same benefits that generally flow from marriage?

The problem with the Mississippi decision was not the result, but the reasoning. A federal judge there struck down a state law that prohibited joint adoptions by married couples of the same sex. Despite noting that the state made only a “tepid” effort at defending the ban, the court gave only a feeble rationale for enjoining it. Equal protection was somehow involved.

The judge got the general framework right. If a law does not target a protected class or infringe a fundamental right, it should be upheld as long as it survives mere rational basis review. But from there, incoherence followed. The judge did not hold that the law targeted a protected class or that it infringed a fundamental right, but he struck it down anyway and did so without applying any standard of review. His rationale? Doubt that the Court would uphold the ban. Fair enough, but a more certain basis would be nice.

The judge’s difficulty in articulating one was understandable. The adoption ban inspired four possible theories of invalidity, but none of them quite encompassed it. The ban lay in a constitutional gap, which the Court itself is responsible for maintaining.

First, by singling out same-sex couples, the ban on joint adoptions might have targeted a protected class and thus triggered heightened scrutiny on that basis. The Court, however, has repeatedly avoided holding that classifications based on sexual orientation trigger heightened scrutiny. Nor has it been willing to treat discrimination against same-sex couples as a gender-based classification, which also would trigger heightened scrutiny. Even while repeatedly invalidating anti-gay laws, the Court has preferred to remain coy as to the standard of review—for two decades now. Given the absence of evidence that same-sex couples make bad parents, the adoption ban would almost certainly have failed heightened scrutiny.

Second, by denying some couples the opportunity for a joint adoption, the law might have infringed a fundamental right to adopt. As important as adoption may be to infertile couples and others, however, the Court has never held that adoption is a fundamental right. It is a statutory creation of relatively recent vintage and thus lacks a long history and tradition, a weighty factor in identifying a fundamental right. Adoption also implicates the private interests of additional parties—namely, the children placed for adoption and their biological parents. Perhaps understandably, courts have generally declined to require states to defend adoption regulations under heightened scrutiny.

Third, by denying same-sex spouses a marital benefit that heterosexual spouses receive, the law might have infringed the fundamental right to marry. That right has been defined, however, as protecting individuals from material interference with their decision to get married, not as a constitutional entitlement to receive any particular set of benefits once they do. In fact, unremarkable socioeconomic regulations sometimes extend marital benefits to only some spouses, such as those who actually live together, those over a certain age, or those in specified economic circumstances. Several states even offer married couples the option of a “covenant” marriage, which significantly alters the availability of divorce. The Court has never suggested that varying the marital benefits available to different married couples, standing alone, triggers any heightened scrutiny. Although the judge in the Mississippi case tried to derive a countervailing principle from the Obergefell decision, which did rest on the constitutional right to marry, the issue of denying a marital benefit to a subset of lawfully married couples was not before the Court. The right to get married was.

Fourth, the adoption ban might have just failed rational basis review without any heightened scrutiny. Because that standard of review is so toothless, however, a claim that the ban serves the best interests of children should survive that minimal scrutiny. Although studies consistently find little to no difference in outcomes between children raised by same-sex and heterosexual couples, the experience is recent and the studies are somewhat limited. As the New York Court of Appeals has held, a rational legislator could doubt the studies’ conclusiveness. Applying an adoption ban to all same-sex couples would be blunt and imprecise. No one seriously claims that the best same-sex parents are still worse than the worst heterosexual parents, but rational basis review does not require such neat categorical difference. It allows gross overinclusion and gross underinclusion, as long as there is some conceivable basis for the line that is drawn. It should be enough that a rational legislator could imagine a hypothetical statistical difference that might correlate with the classification. Yes, rational basis review is that toothless.

On occasion, the Court has applied it with more “bite” than usual. At least twice, in fact, it has done so in striking down laws that discriminate against gays and lesbians or same-sex couples. The best example is the case of Edie Windsor, in which the Court invalidated the provision of the federal Defense of Marriage Act (DOMA) that required the exclusion of lawful same-sex spouses from all marital benefits under federal law. There, however, the Court stressed the breathtaking sweep of the discrimination and identified clear examples of anti-gay animus in the legislative history. Although one might well find anti-gay animus infecting the enactment of the Mississippi ban, a law withholding one specific benefit of marriage in an area with colorable social science uncertainty is quite different from the totalizing sweep of DOMA. In other instances, even the evidence of legislative animus may be much harder to come by than in the case of DOMA (or Mississippi). This possibility of situationally intensified rational basis review is a shaky security for the full and equal availability of marital benefits.

None of these problems, moreover, is limited to the denial of adoption rights. A law that withholds any kind of marital benefit from same-sex spouses would implicate the Court’s unwillingness to formally elevate the standard of review for classifications based on sexual orientation. In contrast to adoption, moreover, few other marital benefits—think survivor benefits, tenancy in the entirety, or testimonial privileges—could even plausibly qualify as fundamental rights. In addition, the focus of the constitutional right to marry on getting married, as opposed to receiving benefits, would also arise as a problem regardless which marital benefit were withheld. Lastly, the toothless nature of rational basis review would be a problem in many instances, as surviving it merely requires a clever lawyer for the government to postulate some plausible and conceivably relevant demographic difference between same-sex and heterosexual couples, such as potential differences in rates of actual dependency between spouses.

If one believes that result of the Mississippi decision was correct and that states should have only limited discretion to withhold particular marital benefits from lawfully married same-sex couples, the best solution for filling the constitutional gap and bringing coherence to the question lies with the first of the four legal theories. The probability is sufficiently great that a law targeting gays and lesbians or same-sex couples is motivated at least in part by prejudice to justify the Court in presuming unconstitutionality in all such instances and thus requiring a state to disprove it by surmounting a higher standard of review than the toothless rational basis test. Elevating the standard of review for such classifications addresses the essence of the problem without generally requiring the recasting of all marital benefits as fundamental rights or establishing heightened scrutiny for every socioeconomic regulation that varies the benefits offered to different married couples.

The Court should stop being coy about its basis for striking down anti-gay laws. It should finally acknowledge that laws classifying on the basis of sexual orientation come before the courts with the same presumption of invalidity as laws classifying on the basis of other suspicious traits. There are so few remaining instances of classifications based on sexual orientation in the law that the risk of unanticipated consequences is negligible. But the benefit to doctrinal clarity would be significant.

Ted Cruz Is Eligible to Be President

By Prof. J. Stephen Clark

Questions have arisen lately about the eligibility of Texas Senator Ted Cruz to be president because he was born in Canada. While plenty of people may doubt that he is fit to be president, they ought to make their case to voters on the merits. They should not use a wart on the Constitution to disqualify him from the ballot.

The wart in question appears in Article II, Section 1, Clause 5 of the Constitution, which prescribes the qualifications to be president. Among them is the stipulation that the president must be a “natural born” citizen, a term that is not defined. Opponents of Cruz, led by noted “birther” Donald Trump, have questioned whether Cruz qualifies as a “natural born” citizen under this provision. His birth connection to the United States is that he was born in Canada to an American mother while she was living there. Some say that is not enough for him to qualify as “natural born.”

Examining the same historical evidence bearing on the meaning of the constitutional term, commentators have divided on the question. Those who say that Cruz should be deemed “natural born” and thus eligible to be president rely on 18th-century English statutes as the source for interpreting the constitutional term. Under those statutes a child born abroad to a British subject was deemed “natural born.” These commentators also cite a federal naturalization statute enacted by the First Congress in 1790. Like the British statutes, it deemed a foreign-born child of an American citizen “natural born.”

The opposing view derives from a 2005 law review article, which has been elaborated by other commentators. It relies on English common law, which generally did not deem a child “natural born” if born to a British subject living abroad. These commentators also cite the same 1790 American statute but note that it literally provided that children born abroad should only be “considered as” “natural born.” This distancing language, they say, indicates an understanding that the children were not actually “natural born” but were to be treated as such for statutory purposes as a kind of useful legal fiction.

Both sets of commentators have been too hasty. They have dived straight into the historical evidence and forced it to yield a definitive “yes” or “no.” They have failed to pause at the threshold and establish a rule of construction to guide the inquiry. How strictly or leniently should the constitutional requirement of “natural born” citizenship be construed? Answering that threshold question organizes the assessment of the historical evidence.

A rule of construction is a useful device for dealing with the reality of ambiguity in constitutional interpretation, and there is ample ambiguity here. Whether to give weight to the English statutes or the unmodified common law is perhaps the crucial point, yet neither choice seems obviously incorrect. The language of the 1790 American statute also has plausible alternative readings, depending on how much weight one places on the phrase “considered as.” A rule of construction controls ambiguity in the constitutional inquiry by prescribing, at the outset, how much evidentiary certainty will be necessary to justify adopting one or another interpretation.

Setting a rule of construction in this case is easy. For multiple reasons, a court should construe the disqualification narrowly, applying it only to cases about which there is no serious historical dispute. That means courts should approach this interpretive question by presuming that a citizen is eligible to be president unless the historical evidence establishes otherwise beyond any reasonable dispute. If two interpretations of the constitutional term “natural born” are fairly supportable, a court should adopt the one that renders an American citizen eligible to be president.

What are the multiple reasons for construing the disqualification narrowly? First, the policy rationale underlying the “natural born” requirement has always been dubious, with overtones of conspiracy theory. The requirement reflected anxiety that a wily foreign royal, with true loyalty to a European monarch or the Pope, might immigrate and somehow intrigue himself into the presidency, from which untold mischief would follow. Never having much sound basis in reality, this fear has even less credibility today. As a result, there is no serious policy rationale for the disqualification at all, which means there is also no sound policy rationale for giving it a broader scope than absolutely required by the historical sources.

Second, the disqualification of citizens because they are not “natural born” is itself offensive to contemporary values. Few defend disqualifying even loyal immigrants who clearly are disqualified under the provision, such as Arnold Schwarzenegger and Jennifer Granholm, the former governors of California and Michigan. The very presence of the disqualification is an embarrassment to the country’s identity as a nation of immigrants. Both sides in the Cruz debate generally agree that the disqualification is repellent and should be cut out of the Constitution. Although that cannot be accomplished without a constitutional amendment, the disqualification certainly need not be given a broader scope than the historical evidence manifestly requires.

Third, the disqualification is an affront to core constitutional values that have been entrenched in the Constitution subsequent to the adoption of this provision. Today, we regard a purposeless restriction on legal entitlements as fundamentally unfair and, as such, a denial of due process. Likewise, an arbitrary discrimination against people, particularly one touching on national origin or condition of birth, contradicts our commitment to the equal protection of the laws. The irrebuttable use of birth as a proxy for loyalty is offensive to these values. The Due Process Clause or its equal protection component may not necessarily have modified the “natural born” requirement, although that is a possibility. But there is at least no need to exacerbate its tension with these core constitutional values by giving the disqualification a broader scope than is incontestably required by the historical sources.

Fourth, the disqualification seriously intrudes on the prerogative of the American people to govern themselves. It is true that constitutional constraints inevitably have the countermajoritarian effect of constraining majority rule. Here, however, the specific theory rests on a distrust of voters to make competent choices in selecting their own political leaders. That paternalistic assumption has been severely undermined by the 19th-century delegation to voters of the choice of presidential electors, by the 17th Amendment’s adoption of direct election of Senators, and by repeated amendments to expand voting rights. As the Court observed in Bush v. Gore, “[h]istory has now favored the voter” in presidential elections. The disqualification should not be interpreted to intrude on voter choice more broadly than the historical sources incontestably require.

Nor is this proposition seriously undermined by the 22d Amendment. Although it interferes with voter choice by restricting presidents to two terms, it does not rest exclusively or even primarily on the assumption that voters lack the competence to make wise choices. Rather, it is animated by real concerns about the ability of an incumbent president to use the very powers of his office to entrench himself in power, even against voter preferences. That concern is very different from presupposing that voters are incapable of assessing the loyalty of candidates and thus need a prophylactic disqualification that is maddeningly blunt and grossly overbroad.

Set against these arguments for construing the disqualification as narrowly as the historical evidence will permit is what? What competing values are served by condemning a broad swath of the American citizenry as too disloyal to be entrusted with the presidency? The country once adopted a similar presumption of disloyalty in the case of Japanese Americans in World War II. Resting disloyalty assumptions on national origin and condition of birth, as the disqualification does, is uncomfortably similar to that experience of using race to ascribe presumptive disloyalty to an entire class. Again, even commentators who argue for the broader interpretation of the disqualification in the case of Senator Cruz do not pretend that it is defensible as a matter of policy. The only value really supporting their approach is adherence to legal formalism in interpretation–that is, pressing the evidence to a definitive answer while “neutrally” ignoring its consequences. That is just not enough.

The term “natural born” is undefined and ambiguous. There are very good reasons for establishing a rule of construction that gives this disqualification of citizens a scope that is no broader than necessary to comport with incontestable inferences from the historical evidence. Given the readily contestable choice between English statutes and English common law and between competing interpretations of the 1790 American statute, those arguing for the disqualification of Cruz cannot meet this appropriately high burden of evidentiary certainty. There is sufficient evidence to support a credible reading of “natural born” that would include children born to Americans abroad. That conception results in a narrower disqualification and, for that reason, is the better interpretation.

Ted Cruz may be unfit to be president, but he should not be disqualified by birth on the shaky basis of historical evidence that is truly contestable. Our values require greater certainty than that.

Professor Rogerson Publishes Op-Ed: “What is a Border to a Child?”

Professor Sarah Rogerson, Director of both the Immigration Law Clinic and the Clinic and Justice Center at Albany Law, has published a compelling op-ed on the rights of immigrant children at the border: