Silence of the Liberals: When Supreme Court Justices Fail to Speak Up for LGBT Rights

David S. Cohen *

In 1985, Justice Brennan did something that had never been done before and has, surprisingly, never been done again—penned a separate opinion from the Court’s left vigorously arguing for the protection of gay rights under the Constitution. Since then, even though the Court has repeatedly protected gay rights, none of the Court’s liberal Justices have said a word on the topic. Rather, the liberal Justices have ceded the territory on the issue of the Constitution and gay rights almost entirely to Justice Kennedy’s notoriously flowery but somewhat vacuous statements about the issue, as well as the pointed and often homophobic critiques of the Court’s more conservative Justices.

This liberal silence has been costly. Court developments around gay rights have been one of many factors contributing to the drastic change in this country with respect to accepting gay people and treating them more equally. Concurring opinions could have been a part of this judicial influence, both in society and in lower court doctrine, but the liberal Justices have opted to remain silent. By doing so, they have lost an opportunity to use separate opinions to influence the trajectory of the law on gay and trans rights, solidify the societal and legal gains that may be threatened by Justice Kennedy’s departure from the Court, clarify Justice Kennedy’s vague analysis, and counter the stereotypes and bigotry of the dissenting opinions.

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*   Professor of Law, Drexel University Thomas R. Kline School of Law. Thank you to Professor Leonore Carpenter for her valuable feedback on this article, as well as to Sarah Varney and Alice Thornewill for excellent research assistance.



Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial

Melissa L. Breger *

All people harbor implicit biases—which by definition, are not always consciously recognized. Although trial judges are specifically trained to compartmentalize and shield their decisions from their own biases, implicit biases nonetheless seep into judicial decision making. This article explores various strategies to decrease implicit bias in bench trials. Questions are then raised about whether a judge who has faced bias personally would be more amenable and more open to curbing implicit bias professionally. Ultimately, does diversifying the trial court judiciary minimize implicit bias, while also creating a varied, multidimensional judicial voice comprised of multiple perspectives? This article will explore this potential interplay between diversifying the trial court judiciary and reducing implicit bias, while urging future quantitative research.

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*  Professor of Law, Albany Law School. J.D., 1994, University of Michigan Law School; B.S., 1991, University of Illinois at Urbana-Champaign. Thank you to Judge Rachel Kretser who invited me to present a very early iteration of this article in March 2017 during a conference entitled, Balancing the Scales of Justice: The Impact of Judicial Diversity after the screening of the Pioneering Women Judges documentary. Thank you to the audience at Boston University’s Diversity & Law Association for inviting me to present this paper in April 2017. I am grateful for the feedback on earlier drafts by Professors Deseriee Kennedy, Jean Sternlight, Christine Sgarlata Chung, and Beverly Moran. Many thanks for the excellent research assistance of Ashley Milosevic, Nicole Finn, Konstandina Tampasis, and Robert Franklin.


Improving Lawyers’ Health by Addressing the Impact of Adverse Childhood Experiences

Karen Oehme *

Nat Stern **

Although the legal profession has recognized the importance of improving attorneys’ mental health, it has largely ignored recent social and scientific research on how adverse childhood experiences (“ACEs”) can harm attorneys’ long-term well-being. This article reviews the science of ACEs and argues that law schools and the legal profession should educate law students and attorneys about the impact of prior trauma on behavioral health. Without such education, law schools and the legal system are missing a crucial opportunity to help lawyers prevent and alleviate the maladaptive coping mechanisms that are associated with ACEs. Until such knowledge is widespread, many lawyers will be plagued by their own trauma histories—to the detriment of individuals, families, communities, and the legal system.

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       *     Director, Institute for Family Violence Studies, and Distinguished University Scholar, Florida State University.

     **     John and Ashley E. Frost Professor of Law, Florida State University College of Law.

Intellectual Property and Human Rights 2.0

Peter K. Yu *

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take the academic discourse to the next level. It highlights three dominant research methods that have been used in this intersectional area: comparative methods, quantitative assessments, and contextual analyses. The second half of this article identifies the contributions a robust discourse on intellectual property and human rights can make to the future development of the intellectual property regime, the human rights regime, and the interface between these two regimes. Responding to critics and skeptics in the intellectual property field, the article concludes by explaining why human rights discussions in the intellectual property area will provide important benefits to the future development of the intellectual property regime, especially in relation to developing countries.

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        *    Copyright © 2019 Peter K. Yu. Professor of Law, Professor of Communication, and Director, Center for Law and Intellectual Property, Texas A&M University. This article benefited from discussions with the participants of a number of events at which the author explored issues at the intersection of intellectual property and human rights, including the Annual Meeting of the Norwegian Copyright Society in Oslo, Norway, the Third Business and Human Rights Scholars Conference at Santa Clara University School of Law, the “Global Genes, Local Concerns” Symposium at the University of Copenhagen in Denmark, a workshop organized by the International Centre for Trade and Sustainable Development in Geneva, Switzerland, the 4th International Intellectual Property Scholars Roundtable at Duke University Law School, the International Law Weekend 2014 at Fordham University School of Law, the Workshop on “Patent Regimes and the Right to Science and Culture” at Yale Law School, and the “Intellectual Property and Human Rights” Conference at American University Washington College of Law. The author is grateful to the participants of these events for their valuable comments and suggestions


Carly M. Celestine – Symposium Editor, Volume 53

The University of Richmond Law Review is incredibly excited to present its 2019 Symposium Issue: The 50th Anniversary of the Fair Housing Act–Past, Present, and Future. Each year, the Law Review hosts a Symposium which seeks to critically examine and debate a specific area of law. This year, we celebrated the fiftieth anniversary of the Fair Housing Act (“FHA”). We were honored to host an outstanding assembly of scholars and practitioners to re- flect on the social and legal precursors to the FHA, evaluate its impact to date, and anticipate the role of the Act in providing equal access to housing in the future.

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Unjust Cities? Gentrification, Integration, and the Fair Housing Act

Olatunde C.A. Johnson* 

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance a more robust form of integration. This broader framework would attend to how public and private goods are distributed in gentrifying cities, and build governance and participation mechanisms that enhance the voice and participation of traditionally excluded groups.

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* Jerome B. Sherman Professor of Law, Columbia Law School. J.D., 1995, Stanford Law School; B.A., 1989, Yale University.
For helpful research assistance, I am grateful to Amelie Hopkins and Alexander Perry. Many thanks to Jessica Bulman-Pozen, Lance Freeman, Richard Sander, Serena M. Williams, and participants at the University of Richmond School of Law Symposium and the faculty workshop at Columbia Law School for their helpful comments and suggestions.