Friday, April 2

US News & World Report has ushered in another April with the release of its annual rankings of accredited American law schools. Yale Law School once again tops the 2005 rankings, which the news magazine compiles yearly on the basis of a dozen quantitative, but arguably arbitrary, measures of institutional quality. Indeed, the top rung of the rankings has changed little from last year or even from last decade, lending support to the idea of The Durability of Law School Reputation [PDF] about which Professor Richard Schmalbeck of the Duke University School of Law (#10, see graphic) has written. Eight of the top nine schools are the same in a 1974 survey he cites and the 2005 rankings.

In the top 50, the major upward movers (4 places or more) were Washington University in St. Louis (20, up from 25 in 2004), Emory University (23, up from 27), University of Washington (34, up from 45), University of Alabama (40, up from 45) and JURIST's own host institution, the University of Pittsburgh (47, up from 51). Downward movers in the top 50 were Boston College (29, down from 22), Ohio State University (42, down from 38), the University of Utah (47, down from 40), and the University of Colorado-Boulder (50, down from 40). Tulane Law School dropped off the top-50 list, moving from 45 to 56.

In other law school news, the North Grounds Softball League of the University of Virginia School of Law is finishing preparations for the 21st Annual Virginia Law Softball Invitational, to be held this weekend. A hundred odd teams of law students will converge on Charlottesville for a double-elimination tournament and general "merriment." Teams from the University of Chicago Law School and from UVA will enter the tournament as defending champions in the regular and co-rec divisions.

Thursday, April 1

Wednesday, March 31

Tuesday, March 30

Following her leading participation in a teach-in on gay marriage at the University of Pittsburgh School of Law last Thursday, Professor Rhonda Wasserman has kindly consented to elaborate her position in a written interview for today's JURIST. Professor Wasserman specializes her teaching and research at Pitt on matters of civil procedure and conflict of laws, and has earned high marks from students as a teacher of both subjects. She has recently completed a book on procedural due process. Here, she analyzes gay marriage from a conflicts perspective.

JURIST: You argued at Thursday's teach-in that conservative concerns about the extraterritorial effects of gay marriages may be unfounded: first, because the Constitution's Full Faith and Credit Clause does not accord marriages the weight of judicial proceedings and thus does not compel their recognition by other states; and second, because states may decline recognition under a well recognized public policy exception.

Hypothetically, can states secure extraterritorial effects for gay marriages that they perform by making the issuance of marriage licenses more like judicial proceedings and less like public acts or records?

RW: I think it would be difficult for states to do so, for a couple of reasons. First, since judges play no role in the issuance of marriage licenses and serve as officiants in few marriages, it would take some work to transform the marriage process into a judicial proceeding. Second, if the only parties to the "judicial proceeding" were the state and the couple, it would not be an adversary proceeding. Finally, even if the marriage could be recast somehow as a "judicial proceeding," it would be binding on parties to the action, but nonparties would not be bound. See, e.g., Williams v. North Carolina, 325 U.S. 226, 230 (1945) (noting that "those not parties to a litigation ought not to be foreclosed by the interested actions of others; especially not a State which is concerned with the vindication of its own social policy and has no means, certainly no effective means, to protect that interest against the selfish action of those outside its borders").

JURIST: What limits, if any, does the Constitution place on states' invocation of the public policy exception? Do statutes declaring longstanding public policies on the meaning of marriage insulate states from constitutional review by federal courts?

RW: Professor Larry Kramer has argued that the public policy exception itself is unconstitutional because a state that invokes it fails to give another state's law the full faith and credit that it deserves based solely on the law's content. Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965 (1997). The Supreme Court's decision in Baker v. General Motors Corp., 522 U.S. 222, 233 (1998), appears to undercut Kramer's argument: "A court may be guided by the forum State's 'public policy' in determining the law applicable to a controversy" (citations and footnote omitted). Even if the public policy exception is constitutional, however, and even if the mini-DOMAs that many states have enacted are strong evidence of their public policy, those statutes do not necessarily insulate the states' decisions from judicial review. For instance, if the mini-DOMAs are found to discriminate in violation of the equal protection clause of the federal Constitution, they would be struck down.

JURIST: Will widespread invocation of the public policy exception by states condemn gay spouses to "hodgepodge" recognition of their marriages as they travel, undermining the choice of law goal of uniformity?

RW: I do believe that for a period of time, that is the likely result. Some states, like Massachusetts, will permit same-sex couples to marry. Some states, like New York, likely will recognize them. And other states, like Pennsylvania, will invoke the public policy exception and decline to recognize them. The goal of uniformity will be frustrated, but the states will operate as "50 laboratories" in which to experiment on the best approach to this issue (at least until the Supreme Court resolves the issue as a matter of federal constitutional law).

JURIST: However unfounded, conservative concerns about the possible extraterritorial effects of gay marriage have prompted responses at the federal level, both by statute (the Defense of Marriage Act) and most recently by proposed constitutional amendment (the Federal Marriage Amendment).

Are federal responses to gay marriage issues proper under principles of federalism, given that marriage has traditionally been a subject of state law given its largely local effects?

RW: The federal government has long played some role in regulating family life (through the welfare laws, the tax code, and a host of other Congressional acts). Nevertheless, a federal constitutional amendment to bar same-sex marriage seems like a very heavy-handed way to regulate state marriage law. It seems ironic to me that conservatives would favor such an intrusion into the traditional right of states to define marriage.

JURIST: Lastly, you suggested at the teach-in that the Defense of Marriage Act may be vulnerable on full faith and credit as well as due process and equal protection grounds, and you mentioned that "strong arguments" exist to this end. Yet at a Senate subcommittee hearing on the matter, Professor Lea Brilmayer of Yale Law School shrugged off such skepticism as an underestimation of the latitude that the clause gives to Congress to adopt legislation.

Do you agree with Professor Brilmayer that DOMA "falls within Article IV's grant of congressional power"?

RW: Lea Brilmayer was not only my conflicts professor in law school, but the only woman professor that I had in my three years and a great role model for me. Notwithstanding the enormous respect I have for her, on this issue I disagree. I am persuaded by the argument made by Professors Larry Kramer and Laurence Tribe that the first sentence of the Full Faith and Credit Clause is binding on Congress, and that the Effects Clause does not authorize it to enact legislation at odds with the first sentence. See, e.g., Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 2001-07 (1997).

Monday, March 29

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