Yascha Mounk – The People vs. Democracy

Radhe Patel, 1L

Yascha Mounk gave a talk on Monday, April 2nd on his new book, The People vs Democracy.

His talk started out painting a picture of our current world and asking what was wrong with it: Kenya’s democratic movement is struggling while autocracies like Saudi Arabia, meanwhile, seem to be pretty stable. There was supposed to be a set of affluent countries that we could rely on to consolidate and promote democracy. What happened?

Mounk suggested that if we look towards current public opinion, people are less open to democracy now. Polls indicate folks want a strong leader that “doesn’t have to bother” with parliament, for example. Mounk’s book tries to understand the long term causes of this shift, identifying factors that come together to explain this phenomenon, including the rise of money in politics, the rise of technocrats/administrative state, and social media.

The money causation is straightforward enough: as a result of lobbying dollars, bodies like Congress really do not respond to the views of median families and people in the 50th percentile of their countries who aren’t elite donors. The second issue, the rise of the administrative state, has led to more and more decisions being taken out of democratic conversations and into the hands of independent agencies or central banks that are not responsive to a constituency in the same way. Finally, social media has made the spread of fake news easier, consequently making it easier for extremists with unpopular opinions to organize more effectively. Mounk also discussed the effect of stagnated living standards and cultural dislocation (through immigration patterns that have changed the status of native born individuals) on this shift, all coming together to explain the baseline loss of trust in the political system and a loss of responsiveness of that system to the needs of citizens.

Mounk’s recommendations for moving forward included reinvigorating civics curriculums in primary and and secondary schools to teach the importance of civic engagement, and putting pressure on social media companies to enforce their community guidelines.






HLS Professor Sharon Block and Labor Law

Vail Kohnert-Yount, 1L

On Monday, February 26, at the same time as oral arguments for Janus v. AFSCME, in which the Supreme Court is poised to strike a major blow to public sector unions, Sharon Block spoke to the American Constitution Society at Harvard Law about the past and future of the U.S. labor movement.

Professor Block, the director of Harvard Law School’s Labor and Worklife Program, explained how the emerging “alt-labor” movement can help protect and expand the American middle class. Especially at a time when traditional institutions of the labor movement are under unprecedented attack, creative approaches to worker organizing are needed to defend low- and middle-income workers.

What does the economy feel like?

Before coming to Harvard, Professor Block served as the Principal Deputy Assistant Secretary for Policy at the U.S. Department of Labor and Senior Counselor to the Secretary of Labor. A lawyer by training, she explained the importance of understanding the social and economic landscape when trying to change the law.

Professor Block began by asking, “What does the economy feel like for low- and middle-income workers?” Drawing upon economic research on the real income of U.S. workers and families across percentiles, she showed that middle-class Americans have barely gotten a raise over the past half-century.

The real median income of U.S. workers has been mostly flat since 1967, even as worker productivity has increased dramatically since 1973. Meanwhile, the wealth of the 90th and 95th percentiles has skyrocketed, and the disparity will only increase with the recent tax bill.

The result is that the so-called “American dream” isn’t so American anymore. “The American middle class, long the most affluent in the world, has lost that distinction,” the New York Times reported in 2014. After-tax middle-class incomes in Canada, which were substantially behind in 2000, are now higher than in the United States. The poor in much of Europe earn more than poor Americans.

Professor Block cited several other studies to illustrate the problem. For example, 57% of Americans don’t have enough savings to cover a $500 unplanned expense. Furthermore, economist Raj Chetty has shown that rates of relative intergenerational mobility in the United States have been flat for decades. Finally, economists Anne Case and Angus Deaton found that while mortality rates continue to fall in most of the rich world, midlife mortality has actually increased for a large portion of the U.S. working class due in part to the rise of “deaths of despair” by drugs, alcohol, and suicide.

What does this have to do with labor law?

Increasing income inequality and the declining strength of the middle class correlate strongly with the decline in union density in past decades. Since 1984, the percentage of the U.S. workforce that is unionized has plummeted from around 20% to just over 10%, the majority of whom are public sector workers for the first time in American history.

Legal attacks on unions, like the Janus case, are in part to blame. Professor Block identified several other key drivers of decline including workplace fissuring, the rise of the gig economy, globalization, deindustrialization, and automation, as well as weak penalties for breaking labor laws that disincentivize employers to do the right thing by their workers.

In fact, an entire legal industry has sprung up to help employers violate labor law and avoid worker protections, if not in letter then at least in spirit. About 80% of Harvard Law graduates will go on to work at corporate interest law firms, many of which have lucrative practices in what they euphemistically call “union avoidance.” This institution, both directly and indirectly, bears significant responsibility for the legal phenomena that have led to the weakening of the middle class.

What comes next for the labor movement?

The so-called “alt-labor” movement, which is the subject of Professor Block’s seminar at the law school, has arisen in response to this challenging moment. The Fight for $15 is perhaps the best-known example, but a variety of models, from worker centers to legislative coalitions to worker-owned cooperatives, offer new ways of creating and protecting good middle-class jobs.

Ultimately, Professor Block said, our labor law in the United States needs reform. The law has lagged so far behind our current reality that this reform must happen at the most fundamental level. The law must redefine key terms like “employee” and “contractor,” empower enforcement mechanisms, expand the scope of bargaining, and allow for healthy competition in labor markets.

Finally, the labor policy agenda should include building a new social contract for this modern era that includes all workers, from those who have been historically excluded to those in the emerging economy. Under Professor Block’s leadership, this is the Labor and Worklife Program’s goal in the years to come.

MA State Senator Spilka Speaks on Paid Family Leave

On Thursday November 16 students had the opportunity to hear from Senator Karen Spilka, Chair of the Massachusetts Senate Committee on Ways and Means, about her efforts to pass legislation for statewide paid family leave in Massachusetts. Senator Spilka was first elected to the Massachusetts House of Representatives in 2001, where she served for three years prior to her election to the Massachusetts State Senate in 2005. Before her career in politics, Senator Spilka was an attorney in private practice, specializing in labor and employment law.

Senator Spilka began her talk discussing her path into public service. She first ran for the legislature in 2001 and won in her 7th Middlesex District. Three years later she was the first woman elected in her state senate district. Once in the senate, she chaired the Joint Committee on Children, Families, and Persons with Disabilities, where she viewed herself as an advocate for those with disabilities. In January 2015, Senator Spilka was appointed to serve as Chair of the Senate Committee on Ways and Means.

Senator Spilka focused her talk on her paid family leave bill. Her proposed bill would create the most robust paid family and sick leave in the country. She believes that the proposed system would improve family life while also helping companies’ bottom lines through reduced turnover and improved worker morale and productivity. The specifics of her plan are sixteen weeks of paid family leave and twenty-four weeks for illness with benefits capped at $1,000 per week. Funds would originally be paid for by employees and employers with a worker making Massachusetts’ median wage contributing $2.23 per week. Her goal is to pass this bill in 2018 before a proposed ballot initiative on the subject in November 2018.

The conversation with Senator Spilka concluded with student questions. One question addressed getting more women to run for political office. Senator Spilka noted that she was only the twenty-seventh woman ever elected to the Massachusetts Senate and only the third woman to chair the Committee on Ways & Means. She highlighted the work done by Emerge Massachusetts, which is in its tenth year of recruiting and training women to run for office. Senator Spilka also discussed a recent conversation she had with a constituent who wrote to her about the problem of Massachusetts licenses requiring a person’s sex identification. Senator Spilka believed her work to address this concern exemplified the virtues of public service; she urged the audience to get involved, believing that it is one of the best callings for a lawyer.

-Zach Singer, 1L

Robby Mook Speaks to HLS

On Monday, October 30, Robby Mook, former campaign manager for Hillary Clinton’s 2016 presidential campaign, spoke to a packed room of students at an event co-hosted by the American Constitution Society and HLS Democrats. Mook shared personal stories and advice from his many years working on state and national campaigns.
Mook said he cannot say for sure why he first became involved in politics. But Mook does know where he got his start—the unlikely location of the town garbage dump. Mook said that, because where he grew up in Vermont did not have garbage pick-up, residents had to bring their trash to the dump, making it one of the best locations to connect with voters and share political messages.
Mook went on to work on campaigns in college and took his first job as a field organizer in Vermont. From there, he said, he dove in and kept going where his passion took him. He recommended that students interested in campaigns be open to having a flexible career. Mook has taken this approach in his own career, working on a variety of campaigns—including Howard Dean’s 2004 presidential campaign, Hillary Clinton’s 2008 presidential campaign, New Hampshire Senator Jeanne Shaheen’s 2008 campaign, and Virginia Governor Terry McAuliffe’s 2013 campaign. He also served as the executive director of the Democratic Congressional Campaign Committee in 2012. Mook said he has found it helpful to move between national work and races on the ground, learning how to manage different environments and resource constraints.
During the second half of the event, Mook discussed recent challenges that have arisen in the political environment. “The pace of change is enormous,” he said, referring to changes in demographics and media consumption. As a result, Mook said, it is no longer enough for candidates to simply talk about issues that matter to voters. Instead, candidates need to think about how to get their message across to voters in a meaningful way. Mook also discussed how important it is to build coalitions and find common ground in the face of growing division in the electorate.
Toward the end of the event, Mook shared his advice specifically for students: “Think about what matters to you coming out of here, and think about the best path to get there.”

-Florence Bryan, 2L

Plenary Power Implications in Immigration Law

On October 25, Professor Adam Cox spoke to students about the implications of plenary power on immigration law at an event co-sponsored by the American Constitution Society and the Harvard Immigration Project. Before becoming the Robert A. Kindler Professor of Law at New York University Law School, Professor Cox clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit; served as the Karpatkin Civil Rights Fellow for the American Civil Liberties Union; and practiced at Wilmer, Cutler, and Pickering. He is a current visiting professor at Harvard Law.

Professor Cox began by acknowledging the popular perception that the federal government has unlimited authority over immigration policy and that immigrants have few rights. These perceptions are part and parcel of three ongoing debates – the “Travel Ban”, the recent legal dispute in Texas over an undocumented minor’s right to an abortion, and Supreme Court Case Jennings v. Rodriguez. Professor Cox posited that these three recent examples are a re-litigation of decades-old public discourse on immigration policy.

Comparing Presidents Obama and Trump, Professor Cox said the administrations indubitably have radically different immigration policies. While President Obama aimed to protect hundreds of thousands of immigrants from being removed, President Trump has increased enforcement efforts. Nonetheless, both administrations make identical claims with regard to federal authority over immigration policy. Jennings vs. Rodriguez, for example, was first argued during the Obama era.

On the subject of immigrant rights, Professor Cox contrasted the decisions in Castro v. U.S. Department of Homeland Security and Rasul vs. Bush. The Third Circuit in Castro agreed with the Obama administration that asylum seekers had no right to habeus corpus because they were apprehended as undocumented immigrants. But the Supreme Court in Rasul had decided that non-combatants apprehended in battlefields and brought to Guantanamo have the right to challenge due process issues via habeus corpus. Professor Cox explained that these different outcomes are due to the federal government’s immigration plenary power. The Constitution does not constrain the way the government acts with regards to non-combatants coming to the US.

To explain how immigration policy cannot be viewed separate from the rest of American public law cannon, Professor Cox provided an overview of the history of US immigration policy. Until the 1950s, American immigration policy admitted immigrants in a manner designed to preserve American whiteness. Professor Cox explained that former members of the communist party were deported in the 1950s, which should be understood in the context of McCarthyism and a society that had a different understanding of First Amendment protections. Also, the Second Circuit applied principles in Brown v. Board of Education and Bowling v. Sharped when it ruled that immigration admissions policies violated the Equal Protection Clause. The Immigration and Nationality Act of 1965 was passed the same year as the Voting Rights Act after pressure from Presidents Kennedy and Johnson. In 1977, the Supreme Court upheld discrimination on the basis of sex in Fiallo v. Bell. The court ruled against fathers who sued because it was more difficult for fathers to obtain green cards for their children than mothers could. The case was decided right after Craig v. Boren, during the birth of the sex equality jurisprudence and an in era in which Ruth Bader Ginsburg was consistently losing sex equality cases. Professor Cox emphasized that immigration policy cannot be viewed in the singular and must be viewed within the totality of American history.
In response to students’ questions, Professor Cox contended that our new immigration policies, albeit freed from the overtness of former admissions criteria, are a two-tier quota system due to the qualified relationship requirements and facially neutral diversity lottery. Professor Cox also provided details on the Rodriguez and Lora cases, which concern the rights of undocumented immigrants detained in Immigration and Customs Enforcement detention facilities. He also discussed the mistaken conflation between analysis of individual immigrant rights with analysis of the separation of powers.

The event concluded after an hour of presentation followed by Q&A. Students were presented a rewarding opportunity to learn more about the theory dimension and historical underpinnings of long-standing immigration debates.

-Heather Pickerell

Tara Grove and Judicial Independence in the Era of Trump

On October 24th, 2017, Visiting Professor Tara Grove spoke about judicial independence in the current political climate at an event sponsored by the American Constitution Society. Professor Grove is a Professor of Law at William and Mary Law School and served as the Supreme Court Chair on the Harvard Law Review during her time at Harvard Law School, after graduating from Duke University and teaching English and Japanese in Japan. Following law school, Grove clerked for Judge Emilio Garza on the U.S. Court of Appeals for the Fifth Circuit. She spent four years as an appellate attorney for the U.S. Department of Justice. As part of her transition to legal academia, Grove served as a Climenko Fellow and Lecturer on Law at Harvard Law School. Grove was also a visiting professor at Northwestern University School of Law. Her research focuses on the federal judiciary and the constitutional separation of powers. She has been published in various law journals including the Harvard Law Review, Columbia Law Review, University of Chicago Law Review, New York University Law Review, University of Pennsylvania Law Review, Cornell Law Review, and Vanderbilt Law Review.

Grove started her speech by recalling Trump’s travel ban and the chaos that erupted at national airports and international airports as people were stranded and left not knowing whether they could leave or return to the United States. Six days later, a federal district court judge issued a nationwide injunction and everything stopped. Trump called the order ridiculous, but with a single stroke of a pen, judicial independence prevailed as politicians and the Department of Homeland Security immediately complied.

Grove rhetorically asked the audience where this judicial power comes from. She theorizes it comes not from the Constitution, not from Article III, and not from statutory text informed by structure or history, but rather from the convention of protecting judicial independence. In her research, Grove defines convention as a widespread bipartisan norm that holds if anyone fails to comply, even members of their own party will criticize them.

Grove next discussed how the Constitution is not clear on how to remove federal judges from the bench. In the past, some have advocated abolishing the court where the judges sit in order to remove them, but this idea is considered absurd today. In 2011, Newt Gingrich proposed exactly this for the Ninth Circuit, and he received bipartisan backlash because he attempted to violate a convention of judicial independence. Similarly, in 1937, Franklin D. Roosevelt attempted to pack the bench with fifteen Supreme Court justices faced resistance, although not as extensive, because court packing became a violation of the convention of judicial independence.

The most recent norm is compliance with federal court orders. Grove stresses this was not always the case, evidenced by Governor Barnett attempted to defy a federal court order after Brown v. Board of Education, denying James Meredith admission to University of Mississippi. In an effort to find the answer, she delved into historical research and discovered that during the Civil Rights Movement, our society applauded and cheered for defiance of federal court orders in order to uphold segregation.

Grove also found that the Civil Rights Movement was the impetus for compliance with federal court orders. People became tired of obstruction and massive resistance (on the side of segregationists) was viewed as a collection of embarrassing moments in American History. The reaction to the travel ban was in line with this. Even President Trump in his tweets ridiculing the judge who issued the order stated that it “will be overturned.” He saw the only answer as appellate review. Grove argued this shows how strong the convention of judicial independence is.

However, Grove believes we are at risk of a breakdown of these norms and conventions. In 2013 we saw Senate Democrats eliminate the traditional filibuster rule for federal court justices, and in 2017 Senate Republicans got rid of the traditional filibuster requirement for Supreme Court nominations. Notably, the Senate actually refused to hold hearings for Supreme Court nominee Merrick Garland, and even stated they would not hold hearings for any candidate at all, going so far as to say they would block a nominee even if Hillary Clinton won the presidency. This is a breakdown of norms at the appointment process.

We also see this breakdown at the local level. Arizona Sheriff Joe Arpaio was arrested for violating federal district court order against his aggressive enforcement tactics and Trump pardoned him, commenting on his “admirable service.” This is a direct challenge to the convention of judicial independence. Additionally, Judge Roy Moore was twice removed from office for leaving a Ten Commandments display up at a state courthouse and for encouraging officials to deny same-sex marriage licenses in defiance of a federal court order. However, even other judges who agreed with Moore stood up for judicial independence by reinforcing the obligation to obey federal court orders. We have not returned to the 1950s and 1960s where we cheer on violations of federal court orders.

Grove thinks we should still be concerned. Moore was selected as a Republican nominee for U.S. Senate in Alabama, where he was applauded for violating federal court orders. We need to be aware of the conventions that protect judicial independence and do whatever we can to protect them if we think they are correct. Grove believes the study of conventions and thinking about the government at large informs our understanding of the Constitution. The most important of our conventions is that we care about the Constitution at all. Other countries have constitutional texts, but these texts are often weighed differently.

Grove ended by suggesting we think about the conventions that uphold our constitutional culture in order to preserve them, act on them, and use them to remind our leaders that even judges can impact national policy.

In response to questions from the crowd, Grove emphasized that courts stick together. Justice Gorsuch’s rejection of Trump’s tweets reflects that Justices stick together. It is likely
federal judges will stick together to defend the convention of obeying federal court orders as a whole. But it depends who is on the judiciary; if Trump appointed mavericks to the Court instead of traditional federal circuit court judges, we may see a breakdown in the norms.

-Tyler Good-Cohn

Democracy and Inequality

Noah Resnick, 1L

On October 11th, Professor Sabeel Rahman spoke with ACS about his book, Democracy Against Domination. Professor Rahman is an Assistant Professor of Law at Brooklyn Law School and a Visiting Assistant Professor of Law at Harvard Law School.

Professor Rahman began his talk with a description of our current politics, which he argued has its immediate roots in the 2008 financial crisis. The Obama Administration’s approach to the financial crisis was to install a managerial and technocratic fix, in which the economy was fine-tuned with expertise, insulated from political pressure.

This approach, however, underplayed the idea of economic power; the power of individuals over the whole (Banks and CEOs over the people) and systemic and structural powers. The real issue of economic policy is power and domination. The rise of right populism, Professor Rahman argued, filled the vacuum created by the liberal technocratic response to the financial crisis.

In his book, Professor Rahman looked to the Progressive Era for lessons. In the late 19th and early 20th centuries, economic power became concentrated among a few large institutions. A democratic movement rose in response to that economic power and ultimately enacted big change via antitrust laws and New Deal programs.

Professor Rahman highlighted the thinking of two Progressive Era figures, John Dewey and Louis Brandeis. Dewey argued that in moments of financial crisis, the biggest problem facing democracy is that it is hard to know how to respond. Brandeis argued that one way to respond is to enact democratic policies that counteract economic power, and one way to do that is to experiment in the states.

In response to a question about how we can create economic change today, Professor Rahman acknowledged that the opportunity best presents itself after large-scale economic events, such as the 2008 financial crisis. That crisis gave way to a massive opportunity for structural financial change, but we did not take advantage of it. The next crisis, which may be sooner rather than later, will provide another opportunity.

Constitutionality of Travel Ban Debate

Max Baldi, 1L

On October 4, at an event co-sponsored by ACS and The Federalist Society, Professors Gerald L. Neuman and Josh Blackman conducted a debate on the constitutionality of President Trump’s travel bans. Professor Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law and the Co-Director of the Human Rights Program at Harvard Law School. He has written extensively on the constitutional implications of immigration law. Professor Blackman is an Associate Professor of Law at the South Texas College of Law. His most recent books focused on the constitutionality of the Affordable Care Act.

Professor Blackman focused on the president’s statutory and constitutional authority to exclude any class of aliens whose entry the president finds “detrimental to the interests of the United States.” Professor Blackman contended that the President’s statutory authority is bolstered by his inherent constitutional authority to conduct foreign policy and guard the nation’s security. Furthermore, Professor Blackman pointed to a line of Supreme Court precedent which stand for a doctrine of immigration exceptionalism, under which the courts grant the president extraordinary deference on immigration matters. He held up both Kleindienst v. Mandel and Kerry v. Din as supporting the notion that courts may only conduct a facial review of immigration decisions.

Professor Blackman criticized the Fourth Circuit’s willingness to consider President Trump’s campaign statements about Muslim immigrants. He argued that campaign promises are inherently unreliable. Professor Blackman distinguished between the three separate orders President Trump issued in January, March, and September in defense of the constitutionality of the travel ban. Professor Blackman argued that regardless of the problems in rolling out and implementing the January and March orders, the September order followed a formal, interdepartmental review of immigration screening information and should thus be entitled to a presumption of validity.

Professor Neuman, in contrast, pointed to the historical origins of the doctrine of immigration exceptionalism beginning with the Chinese Exclusion Cases. He argued the seismic shift in constitutional law following Brown v. Board of Education requires revisiting immigration exceptionalism. Professor Neuman contended Congress’ repeal of racial categories for immigration quotas in 1965 recognized that the modern era of constitutional law demands  some level of constitutional scrutiny for executive immigration policy. He argued that the travel ban was objectively unconstitutional: the travel ban, he said, makes no contribution to national security, but rather exists only to gratify President Trump’s Islamophobic supporters. In support of that argument, Professor Neuman noted the reference to “honor killings’ in the travel ban orders, which he believed portrayed Islam as violent and barbaric.

Professor Neuman disputed Professor Blackman’s division of the travel ban into three distinct orders each representing a distinct policy. Rather, said Professor Neumann, President Trump has had one policy which has subsequently been rephrased on several occasions. Additionally, Professor Neuman argued that the Kleindienst standard granting deference to “facially bona-fide” immigration actions is inherently contradictory, and that courts must look beyond the words of an order when there was evidence the order was not issued in good faith.

Professors Blackman and Neuman answered questions from students on the appropriate standards of review, the travel ban plaintiffs’ standing to sue, and the nature of an establishment clause challenge to executive action. The event provided a wide-ranging and critical examination of the constitutionality of President Trump’s travel bans for the packed audience of students.

“Majority/Minority: Political Polarization and “Whitelash” in the Coming Racial Transition” with Daria Roithmayr

Austin Davis, 1L

In an event co-sponsored by BLSA and ACS, USC School of Law Professor Daria Roithmayr presented the foundation of a book she’s developing about the political reactions and anxiety resulting from the United States’ changing demographics. She focused on the impacts of “whitelash,” a term to describe the political forces that bought Donald Trump to the presidency and coined by Van Jones as the unexpected 2016 election results came in on November 8th.

The heart of her analysis focused on what she called “new faces in white places.” The proportion of whites relative to other ethnicities in America has been decreasing for some time, but demographic trends indicate that America’s white population will experience an absolute decrease by 2060. The nation’s demographic shift will primarily involve increased migration from first-generation melting pot cities, like Los Angeles, to more established “enclave cities,” like Atlanta. However, while whites will be mostly supplanted by a rise in Latinx populations, Prof. Roithmayr noted that the increased militarization of our borders may direct Latinx people to disperse more within the United States rather than congregate in any particular metropolitan area. In the meantime, sheltered white spaces will still exist, primarily in the suburbs, the “Heartland,” and the “Sunbelt.”

According to Prof. Roithmayr’s research, the population decrease by sheltered whites living in those mostly white spaces will lead to serious, troubling, and violent levels of anxiety. As demographics changes, white will begin to have more “unexpected encounters”: in the suburbs and the South, with middle class African-Americans, and in the Heartland and the Sunbelt, with young, low-skill Latinx and high-skill Asians. And unfortunately, social research indicates that racial resentment will rise in whites as they approach the demographic tipping point at which they will lose majority ethnic status, and that their economic anxiety – exacerbated by stagnating wages and union weaknesses – activates latent biases.

The outcome to this anxiety: “whitelash.” We experienced it through the 2016 election, and since then, the nation has experienced a terrifying rise in hate crimes. And they’re not occurring in a vacuum: at every level of government, exclusionary policies continue to target people of color, and regressive policies continue to oppress everyone.

But at the end of the day, Prof. Roithmayer made the point that the law has two important roles to play in our lives: protecting the minority and empowering the majority. And as America’s demographics shift, how we view “majority” and “minority” categories will shift, as well. In fact, as today’s non-white minorities gain demographic and political clout, Prof. Roithmayer sees the passage time as an inevitably positive contributor to justice and equality. She even noted that advocates for racial justice may start to see that change reflected through the “unlikely allies” of businesspeople and corporations, looking for a competitive labor force and to sell to new markets.

Ultimately, even though Prof. Roithmayer’s book is a work in progress, her presentation covered a tremendous amount of vital research and analysis for justice advocates, and the students gathered appreciated her insights in untangling America’s demographic future.

Symposium on Transgender Rights

By Han Suh, 1L

On March 24, Erwin Chemerinksy, a preeminent Constitutional Law scholar and Dean of UC Irvine School of Law, gave a talk on the legal history of transgender rights movement as part of Harvard Civil Rights-Civil Liberties Law Review’s Symposium on Transgender Rights.

Professor Chemerinksy opened the discussion by highlighting the urgent need for legal protection for transgender individuals. Despite the presence of transgender individuals from time immemorial, earliest references to transgender individuals in legal academia first emerged in 1945 and a robust discussion only began in 1990s.

Next, Professor Chemerinksy illuminated on how existing law could be used to protect transgender rights. Although 19 states and 200+ cities provide legal protection for transgender individuals, there is no existing federal statute that explicitly provides protection. Instead, transgender rights advocates have used the framework of sex discrimination. They have successfully argued that discrimination against non-gender-conforming behavior is sex discrimination. In 1989, the United States Supreme Court validated this approach in Price Waterhouse v. Hopkins.

Most recently, the bathroom backlash such as North Carolina HB2 have ensued. Professor Chemerinsky observed that bathrooms have been at the core of many civil rights efforts such as desegregation and Gay and Lesbian rights. In the bathroom debate, opponents of transgender rights have capitalized on the language of privacy and safety and the language of state rights. Such language of state rights has been used similarly in discussions on abolition, child labor, federal minimum wage, segregation, and Gay and Lesbian rights.

Under the Trump administration, new laws or regulations for transgender rights are highly unlikely. Hence, Professor Chemerinsky argues that existing law, especially laws against sex discrimination, is the most promising tool and framework for litigation. He closed the talk with three additional points. First, transgender right litigation will be substantially different from marriage equality litigation. Marriage equality litigation deliberately started in state courts using state constitutions; whereas transgender rights cases can be and have been brought to federal courts using the constitution and federal statutes. Second, bringing transgender cases to court while Justice Kennedy is in office is a wise strategy. Third, a major public relations effort is necessary to change social attitude to build momentum for progress of transgender rights.

Professor Chemerinsky left us with a powerful case for litigating for transgender rights through the sex discrimination framework and encouraged students and other symposium attendees to actively engage with advancing legal rights for transgender individuals.