Law School Faculty Blog

In Deference to Majoritarian Oppression: Justice Scalia’s Indifference to LGBTQ Lives


On June 26 2015, in Obergefell v. Hodges, a five-member majority of the United States Supreme Court struck down state bans on same-sex marriage as unconstitutional. For the LGBTQ rights movement, this victory capped over two decades of civil rights advocacy that sought equal treatment for same-sex couples vis-à-vis different-sex couples.

Justice Scalia dissented in Obergefell, and he began with a confession: same-sex marriage, he wrote, “is not of immense personal importance to me.” With this, Scalia glibly distanced himself from an issue that is impossibly close for many. His stated disinterest reads as cold against a backdrop featuring countless activists who spent lifetimes seeking basic recognition of their relationships and identities. Scalia’s Obergefell dissent is just one opinion in a long line of many in which he opposed LGBTQ rights because of both his personal indifference and his belief that minorities are legitimately subject to the whims of the majority.


The Clean Power Plan: Continuing Momentum after the Supreme Court’s Stay


The Supreme Court’s February 9 stay of the Obama Administration’s Clean Power Plan may have removed the states’ immediate compliance obligations, and it will undoubtedly remove some pressure for action in states resistant to change.  Nonetheless, the extensive data and fundamental state and regional planning processes generated by the Clean Power Plan (the Plan) may continue to bear fruit even as the Plan remains in legal limbo.

The Clean Power Plan has already triggered progress.  To determine feasible reductions on existing power plants, EPA spearheaded extensive analyses of regional capacities to shift to less-polluting natural gas and to develop renewables.  In addition, EPA gathered detailed information on the demographics around existing power plants to help states assess the environmental justice implications of their energy choices.  EPA’s research and the resulting data can provide essential information for state and federal policies regardless of the Plan’s status.


The Paris Agreement and Theories of Justice


As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible?  And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building?  As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means—why and when responsibilities should be common, and why and when they should be differentiated—is continually contested and continually shifting.  I briefly highlight the allocation of responsibility in the Paris Agreement.  Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international negotiations, theories relevant to determining responsibility for both mitigation and adaptation.


Don’t Let Fear Lead Us to Repeat the Mistakes of Guantanamo!


Within the past month, we have seen the Islamic State, also known as ISIS and ISIL, claim responsibility for blowing up a Soviet airliner in Egypt; killing 40+ people in Lebanon; and triggering the deadly attacks and killings in Paris, where at least 130 people died and 200 were injured. We have seen the threat of additional attacks cause the cancellation of a soccer match in Germany and, even more drastically, put Brussels on a three-day security lockdown. The U.S. Government recently issued a security alert amid increasing fears that ISIS will initiate a terrorist act here at home, in America.


Celebrating CalECPA – The Best Privacy Law in the Country


Susan FreiwaldGovernor Brown signed the landmark California Electronic Communications Privacy Act (CalECPA) into law on October 8. CalECPA updates California privacy law for the digital world by requiring that California government entities obtain a probable cause warrant from a judge before they can access our emails, text messages, metadata (including information about our location and calling patterns) and other digital information from service providers like Google or directly from devices like our cell phones.


The Clean Power Plan and Environmental Justice: Part Three


On Thursday and Friday of last week, I blogged about environmental justice and the Clean Power Plan. My first post considered how stringent targets and the right incentives could lead to significant aggregate reductions that will indirectly lead to reductions in co-pollutants that have a disproportionate impact on of-color and low-income communities. Friday, I examined the plan’s distributional effects and its provisions requiring community engagement. Today, I’ll examine provisions intended to help overburdened communities benefit from a transition to genuinely clean energy, and then I’ll draw some conclusions based on the issues discussed in all three blog posts.


The Clean Power Plan and Environmental Justice: Part Two


Yesterday in this space, I discussed how stringent Clean Power Plan targets are critical to achieving significant aggregate co-pollutant reductions that will indirectly benefit many overburdened communities. Today, I turn to classic environmental justice issues: the distributional effects of the plan and its community engagement provisions.


The Clean Power Plan and Environmental Justice: Part One


Though directed at greenhouse gases, the Clean Power Plan, by controlling existing fossil-fuel power plants, will have important implications for associated co-pollutants, many of which continue to be emitted at unhealthy levels notwithstanding decades of control. The degree to which the Clean Power Plan will lead to reductions in traditional pollutants – the extent of its “co-pollutant benefits” – is an especially important issue for communities experiencing the highest pollution levels, communities that are disproportionately of-color and low-income. Hence, the Clean Power Plan presents an opportunity for the federal government and the states to further environmental justice. So, how does the Plan measure up? And how should the states maximize the opportunity to achieve environmental justice?


Connecticut v. Santiago


Case # SC 17413 (CT Supreme Court, 8/25/15)

In a 4-3 decision, the Connecticut Supreme Court recently held that the statute abolishing the death penalty had to be applied retroactively to the eleven inmates already on death row.  The legislature abolished the death penalty in 2012 but did not make it retroactive to the cases of 11 persons already on death row.  This decision is in compliance with international human rights principles and practice regarding the retroactive application of ameliorative statutes in criminal cases, as well as other international human rights standards.


How Mindfulness Can Defeat Racial Bias


When I was promoted to tenured full professor, the dean of my law school kindly had flowers sent to me at my home in Pacific Heights, an overpriced San Francisco neighborhood almost devoid of black residents. I opened the door to find a tall, young, African-American deliveryman who announced, “Delivery for Professor Magee.” I, a petite black woman, dressed for a simple Saturday spent in my own home, reached for the flowers saying, “I am Professor Magee.”

The deliveryman looked down at the order and back up at me. Apparently shaken from the hidden ground of his preconceptions, he looked at me again. Incredulous, he asked, “Are you sure?”

Let me be clear. I’ll never know what exactly it was that caused the deliveryman to conclude, on seeing me, that I must not actually be the person to whom the flowers were to be delivered. I am not privy to what was going on inside his head. But it seems inescapable that his confusion had something to do with features of my social identity that had, for him, been coded instantly, if not unconsciously, as inconsistent with the identity of “professor” and “resident” of a home in an upscale neighborhood.