Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor

Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, on the other. The concepts have assumed these polarized and competing public associations through their practical interactions over the twentieth century, often serving as both the targets and the weapons of charges of judicial activism. However, the Supreme Court’s recent opinions in United States v. Windsor and Bond v. United States, read together, reveal an attempt to reconcile these two seemingly disparate constitutional themes. Specifically, Justice Kennedy’s writings in both cases suggest an ironic conservative salvaging of the fundamental interest strand of the equal protection doctrine. In this modern take on the doctrine that first gained popularity under the more liberal Warren and Burger Courts but attracted little attention since, an individual’s fundamental interest in the rights created by her state within its reserved powers is fused with equal protection concerns to motivate a heightened tier of judicial scrutiny. This Note argues that such “stereoscopic synergy” may serve as a value-free, representation-reinforcing judicial mechanism: It provides a framework by which courts may correct defaults in the political process’s protection of minorities’ interests when federal law discriminately recognizes validly enacted state regulations based on the suspect or quasi-suspect class of the burdened individuals. This same analysis can be applied to advance causes championed on opposite ends of the political spectrum, such as medical marijuana use and private gun ownership. As such, this conservative twist on a historically liberal concept disrupts the popular culture’s perception of federalism and substantive due process-equal protection as necessarily conflicting doctrines. 

The Trouble with Amicus Facts

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision making.

The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose.

Unplanned Coauthorship

Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. Unplanned coauthorship enables courts to balance copyright’s commitment to authorial autonomy and individual ownership against the demands of cooperation, collaboration, and information sharing that the creative process invariably entails. Through these rules, copyright law recognizes that certain forms of creativity depend entirely on mechanisms of collaboration for their continuing existence. In such instances of collaborative creativity, the very process of collaboration provides creators with additional and independent reasons for their creative endeavor, a motivation referred to as the “collaborative impulse.” Characteristic of all joint activities undertaken with a shared intention, the collaborative impulse derives from a motivational commitment to the joint task that collaborating creators develop, causing them to pay equal attention to both the means and the ends of their creativity. The Article shows how the rules of unplanned coauthorship allow copyright law to nurture these domains of collaborative creativity by protecting the collaborative impulse and simultaneously rendering it fully compatible with copyright’s utilitarian goal of promoting creativity through exclusive rights.