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Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces. Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.

Although the United States’ so-called “War on Terror” has entailed significant military action, it has also involved the augmentation of the executive’s law enforcement powers. The result has been the emergence of a distinct “counterterrorism” model of coercive government action, falling between the traditional models of war and criminal law enforcement. This Note seeks to place the U.S. counterterrorism model within a larger international context by comparing it with that of another Western democracy, Spain. The author contends that the U.S. model evinces less respect for customary checks and balances than does the Spanish. Nonetheless, the author questions whether the Spanish model’s greater relative commitment to checks and balances has in practice prevented government overreaching. The author concludes that both the Spanish executive and Parliament have overstepped the bounds of their constitutionally prescribed counterterrorism competences, despite the existence of checks and balances. In addition to suggesting that these excesses may be partially attributed to the institutional heritage of Francoist Spain, the author surmises that government overreaching may be endemic in any regime, such as the Spanish, that transparently vests special counterterrorism competences in the executive and legislative branches.

Intersexed children are born with genitalia and/or reproductive organs that do not look like those of most biological males or females. Doctors and parents usually assign an intersexed child a gender at birth or during early childhood. Occasionally, an individual will reject his or her gender of assignment and will want to take on a different gender role. Some clinicians and intersex advocates instruct parents to accept an intersexed child’s expressions of gender identity and to support the child’s gender role change. There is a risk, however, that parents may resist or prevent a child’s gender transition due to their own discomfort with the idea or based on a physician’s recommendation. A statutory framework that allowed intersexed minors to complete a “social gender transition,” coupled with a provision equating parental interference with this transition with actionable neglect, would protect intersexed children’s autonomy and prevent the trauma that can result from a forced existence in a gender role with which a child does not identify. The proposed framework would likely survive a constitutional challenge by the parents of an intersexed child because the harm caused by the parental decision to interfere with a child’s gender expression removes such interference from the realm of constitutionally protected parental decisionmaking.

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s pub- lishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.

Book Review of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. By Daniel J. Solove. New Haven & London: Yale University Press, 2007. Pp. 256. $24.00.

In deciding First Amendment cases, courts generally attempt to find distinctions between speech and nonspeech (or between speech and conduct) in order to determine whether government limitations on speech are appropriate. This analysis, however, is misguided, because whether such limitations are or are not upheld nearly always depends upon whether the conduct does or does not do harm. Recognizing this—and the inherent arbitrariness of speech-nonspeech line-drawing—this Note proposes that attempts at making such distinctions be abandoned. This Note addresses the impact of adopting the harm principle for the criminal law system, and further contends—given the principles underlying our system of civil law—that including so-called moral harms in the list of legitimate bases for state action is untenable.

This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elections. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators’ statements to determine that the appearance of voting fraud exists—and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state’s only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corruption interest is considered.

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

According to an argument heard a good deal lately, the fact that the Constitution says nothing about God means that we have a “godless Constitution,” and that fact in turn entails that government and politics in the United States must be godless or, in the more usual locution, secular. The commitment to secular government in turn is thought to preclude governmental sponsorship of religious expressions (such as the national motto “In God We Trust”) or of religious symbols (such as monuments to the Ten Commandments). This Essay argues that this interpretation of our “godless” Constitution is importantly correct—but even more importantly mistaken. It is true that the Founders purposefully made no reference to a deity—in contrast to many other state and national constitutions. Thus, the Constitution is godless or, more precisely, agnostic. But the agnosticism of the Constitution does not mean that governments operating under the Constitution must also be agnostic or that they must refrain from religious expression. On the contrary, paradoxical though this may initially seem, it is precisely the Constitution’s agnosticism that permits governments to engage in such expression. Drawing a comparison with personal agnosticism, this Essay contends that, similar to a person who both believes and doubts at different cognitive levels, the political community too can affirm particular beliefs (on religious issues, for example) at one jurisdictional or juridical level while remaining noncommittal on other, more constitutive levels. Such “layered believing” can offer a valuable strategy for creating and maintaining political community in the midst of great diversity.

In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court rejected the argument that a new Title VII violation occurred and a new charge-filing period arose each time an employer issued a paycheck to an employee that reflected some past, uncharged discrimination (the so-called “paycheck accrual rule”). This opinion was effectively reversed when President Obama signed his first bill into law: the Lilly Ledbetter Fair Pay Act of 2009. The new law amended Title VII such that an unlawful employment act occurs “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”

Considering issues of fairness to employees and employers, as well as the societal interest in repose, this Note examines the Ledbetter Act and measures it against two alternatives: (1) application of a discovery rule and (2) use of the doctrine of equitable tolling for fraud. The Note contends that the Ledbetter Act is a flawed way of addressing the problem that victims of pay discrimination face in detecting discrimination
and bringing suit within the limitations period. Concluding that the discovery rule has been foreclosed by Congress and the courts, this Note argues that equitable tolling for cases of fraudulent concealment is a sensible, viable way of giving blamelessly ignorant plaintiffs access to the courts and avoiding the drawbacks of the Ledbetter Act.