The Same-Sex Marriage and Civil Rights Movements Juxtaposed

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 2, Issue 1 along with a link to an electronic copy of the full form of the piece. 

Within the debate over the most effective strategy for achieving social change, there remains a significant divide between those who argue in favor of pushing for immediate and full equality and those who favor a more incremental approach. Indeed, this debate is looming large over the current struggle to achieve same-sex marriage rights nationwide. In this Article, I suggest that the unique political and social landscape within which the same-sex marriage movement is unfolding has important implications for the way in which the struggle can most effectively proceed. To illuminate the importance of this individualized approach, I compare the same-sex marriage and Civil Rights Movements to each other and to the oppositions they face by analyzing such factors as organizational capacity, ideological motivations, demographic stratification, institutional support, and the role of collective identity. However, unlike other scholars in the field, who have focused on the similarities between the two movements, I focus on the ways in which the movements, and the sociopolitical backdrops against which they operate, depart from one another. I suggest that examining these subtle, but nonetheless significant, differences is a crucial component of tailoring legal, political, and social strategies for change. I further posit that these differences indicate that the gay rights movement may achieve greater success by pursuing a more tempered strategy than did its predecessors in the Civil Rights Movement. By providing a comprehensive analysis of the historical forces at work behind each of the two movements, this Article offers unique insights into the longstanding debate over social change, as viewed through the lens of a timely legal issue.

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Kathryn L. Marshall is a J.D. candidate at Harvard Law School, 2011.

Expanded Legal Recognition for Cognitive Disorders

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 2, Issue 1 along with a link to an electronic copy of the full form of the piece. 

The Americans with Disabilities Act of 1990 resulted from congressional findings of various forms of discrimination due to physical or mental disabilities. The original version of the ADA had significant shortcomings. In Sutton v. United Air Lines, Inc., the Supreme Court focused on mitigation measures to lessen the effect of a disability. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court sought to create a more demanding standard of qualification as disabled. The end result was a narrowed scope of protection, as evidenced in Knapp v. City of Columbus. Congress believed that these narrowed standards ran afoul of the Act‘s original intent, and set out to broaden protection through the Americans with Disabilities Act Amendments Act of 2008. As a result, courts will no longer be permitted to use mitigating measures against the individual when evaluating disabilities, and actual knowledge of impairment is no longer necessary for one to be regarded as disabled. Though improved legal recognition of impairment from ADHD and entitlement to accommodations are expected, it remains unclear how the courts will interpret this broader scope of protection until the first case applying the broadened standards is tried.

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John Heekin is J.D. candidate at Columbus School of Law, Catholic University of America, 2011.

Minority Representation and the Maori Electoral Roll in New Zealand

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 2, Issue 1 along with a link to an electronic copy of the full form of the piece. 

This article examines issues of minority representation, and in particular whether the separate voting register for the indigenous Māori people in New Zealand helps or hinders their voting strength. Electoral law in New Zealand has long provided a separate electoral roll for Māori voters in order to help ensure that the group is sufficiently represented in the nation‘s parliament. Additionally, in 1993, the New Zealand government introduced a mixed member proportional voting system designed, among other things, to empower minority voters and enhance the representation of minority groups in the legislature. The advent of proportional voting and the recent formation of the Māori Party in New Zealand, however, raise questions about the sustainability and necessity of the traditional dual constituency system. This article argues that even under the new proportional voting system, the separate Māori roll is still needed to ensure adequate representation for Māori. Moreover, a better understanding of an electoral system such as New Zealand‘s, and its distinct awareness of minority representation, also helps contribute to ongoing debates in the United States regarding the effectiveness of majority rule and race-conscious districting, as well as the best legal framework for preserving the representational power of electoral minorities.

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Seal Braswell is an Associate at Hunton & Williams, LLP.

Using Corporate Integration to Ease Unfairness in the Tax Code

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 2, Issue 1 along with a link to an electronic copy of the full form of the piece. 

This article explores the inequities inherent in the current corporate income tax structure. The author argues that notions of vertical and horizontal equity are violated in the current tax code. In particular, tax payers are taxed differently depending on the type of business entity that they invest in, which violates notions of horizontal equity; and higher income investors are allowed to invest in certain entities with lower tax consequences, that are not available to lower income investors, which violates notions of vertical equity. Hedge funds, partnerships, limited liability companies, and a variety of other business choices are only available to accredited investors who earn high incomes or have a certain amount of wealth. This makes the double tax on corporations unfair from both a vertical and a horizontal equity standpoint. Various approaches to alleviating the double tax and inequitable tax burden are introduced and analyzed including complete integration proposals which would eliminate the corporate income tax at the corporate level and partial integration proposals which, in some circumstances, would allow for dividend deductions at the shareholder level. Proposals face various criticisms including administrability concerns, loss of revenue and allowing certain tax-exempt and foreign investors to escape any sort of taxation on their earnings. The author explores each of these criticisms and introduces her own integration proposal, which seeks to alleviate equity and fairness objections to the current corporate income tax structure while keeping in mind the present concerns over integration; it includes a deduction for dividends and proposes to tax all income from any type of investment at the investor‘s personal ordinary income tax rate.

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Meredith Conway is an Associate Professor of Law at Suffolk University Law School.

The Patient Protection and Affordable Care Act, Discretionary Clauses, and Judicial Review of ERISA Plan Administrator Decisions

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 2, Issue 1 along with a link to an electronic copy of the full form of the piece. 

Since the Supreme Court’s Firestone decision, ERISA plan administrators have enjoyed broad discretion and deferential review in benefits claims litigation. Language in Firestone that offered discretion and deference in exchange for a simple discretionary clause led, in time, to attempts by various state insurance commissioners to limit or ban the use of discretionary clauses on the ground that they often lead to unjust outcomes for plan participants. Various state efforts to inject a degree of fairness into the benefits denial review process have been met with preemption challenges, however. This article contrasts the Court‘s consistent support for discretionary clauses with the thus-far unanimous support of the federal courts of appeal for the position that states can ban or limit the use of such clauses without running afoul of ERISA’s broad preemption language. This paper also evaluates the PPACA’s requirement of universal and independent external review and suggests that, at least in the near term, the contested terrain of discretionary clauses will not change significantly.

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Maria O’Brien Hylton is a Professor of Law at Boston University School of Law.