Faithful Unions

Rebecca Aviel

Volume 69, Issue 3, 721-769

We live in a moment of intense preoccupation with both marriage and federalism, one that is likely to persist well beyond the Supreme Court’s ruling in Obergefell v. Hodges. The decision served to reify marriage as a site of enormous cultural significance, an appropriate institution within which to fight over social meaning and its reflection in law. These battles are fought state by state, against a backdrop of unprecedented geographic mobility, raising profound questions not only about how states relate to their own citizens, but how states relate to each other. If it is true that states have an interest in marriages they have created, an idea often invoked but less frequently examined, then interstate marriage recognition is a matter not only of individual rights but also of state sovereignty. Yet the Full Faith and Credit Clause, the constitutional command that is seemingly most suited to managing marriage federalism, has never been called into action.

This Article first suggests that this warrants explanation and then endeavors to provide one. It offers an account of contingent doctrinal evolution, demonstrating that the work the Clause might do in regulating interstate marriage recognition has so far been done by other doctrines. But it also explains why the Clause might nonetheless be useful for the marriage controversies of the future. The anti-animus principles that drove marriage equality forward are highly dynamic; they reflect and respond to social change in an iterative process that is neither linear, nor predictable, nor instantaneous. While this unfolds for any given marriage controversy, over a period that might take decades, we would advance our commitment to faithful unionsboth marital and nationalby developing an interstate recognition scheme with constitutional parameters.

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Booker Disparity and Data-Driven Sentencing

Joshua M. Divine

Volume 69, Issue 3, 771-834

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as other judges on the same court, so a defendant’s sentence often depends substantially on which judge is randomly assigned to the defendant’s case. The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity. The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effects of the old regime diminish.

This Article proposes a systemdata-driven appellate reviewto curb sentencing disparity without re-introducing unwarranted uniformity. In a system where sentencing judges possess significant discretion, only meaningful appellate review can restrain the tendency for sentencing practices to deviate substantially between judges. Discretionary sentencing decisions are currently reviewed for abuse of discretion, which leads some judges to issue much harsher or much more lenient sentences than other judges. Congress can mitigate this problem of inter-judge disparity by changing the standard of review, creating a rebuttable presumption that outlier sentences among similar offenders are unreasonable. The data the U.S. Sentencing Commission collects on over 70,000 criminal cases annually can be used to define categories of similar offenders. Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges, restricting inter-judge disparity without incurring unwarranted uniformity.

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Reconsidering the Merger Process: Approval Patterns, Timeline, and Shareholders’ Role

Matteo Gatti

Volume 69, Issue 3, 835-924

Shareholder approval in mergers generally takes a long time, but is it necessary? This Article finds that in the context of mergers, the approval requirement is not nearly as valuable a procedure as we might expect. I analyze shareholder approval patterns (target side) in all domestic mergers with a Russell 3000 target company in the 2006–2015 period. By examining data on voting outcomes, I note shareholders rejected a very low number of mergers, which generally passed with significantly high approval percentages. Instead of concluding that voting is mere rubber-stamping by shareholders, voting positively affects mergers through the expectation that shareholders will turn down undesirable deals. The voting requirement signals a credible threat to corporate planners that such deals will be rejected; as a result, they are in fact rarely presented to shareholders in the first place (deal filtering effect of voting). The same dynamic contributes to higher premiums than we would have experienced if a threat of rejection were absent (premium effect of voting). However, the data also shows that voting comes with drawbacks, the most significant being the delay in deal completion, which can jeopardize a company’s operations and put deal certainty at risk. If the beneficial role of shareholder voice in mergers stems from the pressure on corporate planners generated by the credible threat of rejection embedded in the vote, I suggest alternative ways to exert such pressure without incurring all the costs currently involved with voting. To that end, this Article sketches three possible policy solutions, ranging from impactful (vote-on-demand and randomized approval, both to be opted into by companies in lieu of the current voting regime) to more moderate (speeding up the timetable by revising the SEC review process of merger securities filings and state corporate laws). 

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How the Animal Welfare Act Harms Animals

Justin Marceau

Volume 69, Issue 3, 925-960

The fiftieth anniversary of the Animal Welfare Act (“AWA”) was 2016. Most fiftieth anniversaries are cause for great celebration, but this one shouldn’t’ be because the AWA has caused more harm than good. In previous decades a wide range of sources have praised the Animal Welfare Act as a critical and noteworthy national legislative achievement that protects animals across the country. This Article, by contrast, demonstrates that animal protection efforts are affirmatively hindered by the AWA in both concrete, tangible applications and in a variety of more conceptual ways. Animal industries continually deploy the fact of an AWA license as an obstacle to transparency about the suffering of confined animals, as a soundbite in the media to quell public concern, and even as a basis for defamation and related litigation against animal protection groups who criticize the treatment of confined animals. In sum, the AWA’s prominence paired with its meagerness has set the stage for a powerful dualitythe AWA is invoked as the centerpiece, even the exclusive source of restrictions on the treatment of many animals, but the protections it provides are actually quite few and almost never enforced. The very existence of the AWA reinforces norms that exacerbate animal suffering. 

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Legalizing Marijuana: A View from Among the Weeds

Michael Vitiello & Rosemary Deck

Volume 69, Issue 3, 961-984

The United States is on a fast-track to a new era in marijuana law. The prospect of a federal pathway to legalization opens a Pandora’s Box of issues for states like California. This Article focuses on Humboldt County in the Emerald Triangle, California’s prime marijuana growing area, and examines how the region might be impacted by state legalization. After a brief look into the development of the marijuana market in Humboldt County, this Article identifies some of the costs that have come with leaving the county outside the legal fold, including a failure to address poor working conditions for seasonal trimmers and an epidemic of sexual harassment that has only recently come to light. The Article then explores some of the obstacles to bringing the county into the legal economy. Depending on how policymakers and marijuana producers respond to these issues, Humboldt County may become a boom-or-bust economy. The Article then examines some of the benefits of bringing producers into the legal economy, including improved working conditions for the scores of individuals employed in the industry. Failing to bring the county into compliance with county and state cannabis regulations also threatens the goals of marijuana reformers. The Article concludes with thoughts about how Humboldt County might fare in the new world of legal pot. Just as in the wine industry, the region’s best hope may lie in the move towards marijuana appellations, which will require entry into the legal market.

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Neither Here nor There: The Bisexual Struggle for American Asylum

Jaclyn Gross

Volume 69, Volume 3, 985-1008

Recently, it has become increasingly difficult for foreign nationals to successfully gain refuge in the United States from persecution in their home countries. The year 1990 marked the first time that the United States granted asylum to a homosexual claimant on the grounds of membership in a “particular social group.” Since then, several LGBTI asylum seekers have been granted the right to build new lives in the United States. Most recently, the country has increasingly included the transgender community in this group of fortunate individuals. Bisexuals, however, despite comprising over fifty percent of the LGBTI population, continue to be a significant subset of the community that consistently faces the most difficulty in attaining asylum in the United States. Asylum seekers who are discriminated against based on visible traits face far fewer roadblocks than those attempting to prove persecution for not being heterosexual.

There are fundamental societal misunderstandings about bisexuality and its presence in everyday life, and the judiciary suffers from a lack of targeted training that could help overcome this deficiency. Accordingly, the judiciary must take steps to prevent these deficiencies from resulting in stereotypes and inaccurate credibility determinations that may ultimately act as a bar to asylum. This Note proposes that all judges making asylum determinations be subject to a training program comparable to that of the LGBTI-specific module required by United States Citizenship and Immigration Services for Refugee, Asylum and International Operations officials. With this training, the personal biases of decisionmakers that lead to skepticism of a claimant’s credibility can be reduced, thus avoiding miscategorizations of individuals who stray from perceived gender or sexual binaries.

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Bringing Untested Rape Kits out of Storage and into the Courtroom: Encouraging the Creation of Public-Private Partnerships to Eliminate the Rape Kit Backlog

Gaby Lion

Volume 69, Volume 3, 1009-1038

This Note discusses the current status of the rape kit backlog, and how it can be addressed through successful public-private partnerships in the DNA testing industry. DNA evidence contained inside rape kits is an invaluable investigative tool to solve and prevent crime. Despite their immense utility, rape kits remain untested due to overburdened public crime labs with insufficient resources. On top of this, onerous FBI regulations prevent private crime labs from joining forces with public labs to test these kits. The aim of this Note is to shine a light on-and to introduce initiatives to eliminate-the backlog of hundreds of thousands of untested rape kits in the United States.

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