Note

Glucksberg, Lawrence, and the Decline of Loving’s Marriage Precedent

In recent debates about the constitutionality of laws banning same-sex marriage, both sides invoke and confront the seminal 1967 Supreme Court case of Loving v. Virginia, which invalidated a Virginia law banning miscegenation. Both sides, however, fail to recognize that Loving is distinguishable on the basis of what rights are at stake, rather than which parties are allowed to marry. Legal developments in the years since 1967 have rendered the right to marriage recognized by the Supreme Court in Loving a nullity in the same-sex marriage debate. In particular, the core rights of marriage that the Court found to be fundamental in 1967 have been recognized outside of the institution of marriage. Changes in laws banning cohabitation and fornication affect marriage precedent that assumes the existence of those laws.

This note adds two contributions to that line of reasoning. The first is an examination of how those changes have affected Loving in particular rather than marriage case law in general. The second is the application of the Glucksberg methodology to the use of Loving as precedent in a fundamental rights analysis. The combination of those observations shows that developments in the law of individual rights recognizing the right to cohabitate and the right to consensual sexual intimacy have stripped marriage of its status as the exclusive domain where those rights could legally be exercised, rendering Loving’s substantive due process language irrelevant to the debate.


Making a Statement About Private Securities Litigation

In June 2011, the Supreme Court decided its latest case concerning the right of investors to sue for securities fraud under Rule 10b–5. The case, Janus Capital Group v. First Derivative Traders, completes a trio of cases beginning in 1994 which severely limit the scope of this private cause of action. In a 5-4 decision, the Supreme Court in Janus determined that only the entity with “ultimate authority” over a given statement can be its “maker” for purposes of Rule 10b–5. As a result, investors in mutual funds and arguably other securities are left with little remedy for fraud, a consequence that has drawn significant criticism to this decision.

Responding to such criticism, this Note examines the merits of the approaches taken in the majority and dissenting opinions, and argues that the case was decided correctly under an accurate construction of current securities laws. Next, this Note predicts that the Court’s ruling will be applied broadly, drastically limiting liability for corporate officers and management under Rule 10b–5.

Finally, this Note addresses potential measures of rectifying what is currently a lack of remedy for investors in securities. It then concludes by advocating that Congress expand the authority of the Securities and Exchange Commission to compensate defrauded investors for their losses.

Free Speech, Hate Speech, and the Hostile Speech Environment

Invoking 42 U.S.C. § 1983 to protect free speech rights, this Note proposes a new cause of action: the hostile speech environment claim. This claim is necessary to combat the continuing infringement of hate speakers’ First Amendment rights by public colleges and universities. After Part I reviews relevant case law to prove that hate speech is afforded First Amendment protection, Part II examines how and why public colleges and universities persist in regulating constitutionally protected hate speech. Part III explains and justifies the proposed hostile speech environment cause of action. Refuting the argument that hostile work environment law can support an analogous “hostile academic environment” claim against campus hate speakers, this Note draws the opposite inference: more protection of hate speech is needed if public universities are to abide by the First Amendment. Thus, this Note borrows from Title VII employment discrimination law to sketch the hostile speech environment claim. It consists of three elements: (1) severe or pervasive hostility (2) by the government (3) towards protected speech. Two strands of First Amendment law provide the claim’s constitutional foundation: the freedom of thought that inheres in the freedom of speech and the captive audience doctrine. Notably, nothing in its analytical mechanics restricts this new cause of action to higher education, which may lead some to argue that it opens the possibility for waves of First Amendment litigation against government speech and policy. Any such fear is illusory, however. The cause of action’s “severe or pervasive hostility” prong and the practical realities of other contexts—such as secondary education and the government workplace—make it unlikely that hostile speech environment claims could apply to other arenas.


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