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Abstract:
This paper describes a process used by The University of Akron to address salary compression. The process allocates salary adjustment resources to disciplines based on relative salary ratios derived from benchmarks. Amounts earmarked for specific disciplines are then distributed to departments for allocation to individual faculty based on merit. The process also invokes concepts of fairness and equity, and includes a component distributed to productive faculty members based on rank and experience. Outcomes, challenges, and implications of the process are examined.

salary, equity, compression, faculty, statistics

Abstract:
Male? Female? Simply, starkly, the law mandates an answer on each child's Birth Certificate. The need to meet this requirement marks the point at which the perfect healthy child the parents see becomes the medical anomaly and problem the physicians see as in need of correction before the birth can be registered appropriately. With that forced assignment, law tags each of us with a sexual identity and renders the intersexed invisible. In the process, the law removes its own power to serve as a source of solutions to injustices it can neither recognize nor remedy.

Law operates as an obstacle to change through nearly invisible mechanisms such as using sex identification on birth certificates and drivers licenses, with no flexibility in the categories male and female, and limited-to-no ability to define one's own sexual identity in conformity with its actual nature. We are all legally subject to having a sexual identity assigned by someone else's best guess within a few moments or days of birth.

This paper proposes to cure that lack of imagination by suggesting a small, but sensible, change in our legal record-keeping. We will collect data on sex with a method that incorporates biological reality with shared and deeply held assumptions about sex identity. The change will also bring visibility to the realities of the intersexual experience. That change can provide a foundation for other legal changes recognizing, protecting and facilitating inclusiveness for intersexuals. The simple change this paper recommends is thus not only easily accomplished, but one that a legitimate and moral system should move to implement immediately.

intersex, gender identity, gender theory, birth certificate

Abstract:
The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the Amendment's majesty and power in contravention to its design, intent, and language. Although our participants disagree about the extent to which the Court intended to or needed to be read as having eviscerated its meaning, all seem to agree that the propulsive force of the Amendment for legal change withered in the aftermath of those decisions. The authors also demonstrate the opportunities left open to use unaffected clauses to accomplish the goals of the Amendment. Several authors explore how the Amendment was incorporated into the public consciousness and used by citizens to reimagine the fabric of American life in ways that carried forward the promise of the Amendment. The symposium begins with general historical reviews of the Amendment in Congress, the public context against which it was enacted, its early application in the Supreme Court and the impact of those narrowing decisions upon the Amendment. It moves to an exploration of the doors that the early cases may have left ajar for future use to reinvigorate the promises of the Amendment and achieve its framer's goals. Although the main focus of our authors is upon legal arguments, they also examine the force of political expediency to support legal arguments or to prevent their being made in ways that might destabilize the fragile union. The third segment of the symposium looks much more directly at the impact of the actual public response to the Amendment and its meaning, and how that public response shaped the Amendment as well as keeping alive its potential to revise the fabric of American life and law. As with the abolitionists in the antebellum period, the understandings and actions of the people profoundly influenced the Amendment's legal as well as cultural meaning. Although most of the participants focus primarily or exclusively on Section One of the Amendment, one explicates the impact of Section Three and the intrigue accompanying its application against Jefferson Davis and another examines Section Five as an alteration to separation of powers as well as federalism principles.

The development and meaning of the Amendment, even for contemporary and future use, is intimately related to the past. We cannot avoid continuing to ask vital questions and seek answers to them. What the Amendment meant in the past and how it has been interpreted and applied throughout its 140 years of existence have resonance today.

Constitution, Fourteenth Amendment, Legal History

Abstract:
In addition to its well-recognized changes to individual rights and federal-state powers, the Fourteenth Amendment also effectuated a change, practically and ideologically, in the former balance among the three branches of national power. The framers created both a Union that had not yet been fashioned, and a Constitution that is dramatically different in where and how it strikes the balance of power on behalf of liberty. This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment, of necessity and by understanding, recast the original structural alignment of national powers and the boundaries of their respective spheres. Recent decisions have revitalized scholarship on the original and historical meaning of the Section Five grant of power. This article aims to contribute to that conversation by looking at historical, philosophical, legal and pragmatic sources to illuminate the purposes of the amendment with respect to the balancing the powers among the respective spheres of the branches of national government.

Legal and political theory about the appropriate role of Congress with respect to identifying, protecting and enforcing personal liberties changed significantly from the time of the original framing in 1787 to the time of the framing of the Reconstruction Amendments. The original framers feared Congress as a potential predator on personal rights, and thus adopted a legal regime of enumerated powers, coupled with rights provisions to negate Congressional power. For the framers of the Fourteenth Amendment, Congress was seen as necessary to recognizing and enforcing rights, and was affirmatively granted a positive power to do so through the operation of Section Five. Consistent with Republican legal and political ideology of the time, the necessity of Congressional power and an affirmative grant of that power infused the amendment from its inception. Legal and political realities of the time support this reconception of Congress and significant grant of additional powers. The framing of the Fourteenth Amendment proceeded at a time when the Executive was seen as affirmatively interfering with the work and goals of Reconstruction. The Supreme Court’s role in stripping Congress of any power to enforce rights was much on the minds of the framers of Section One and the empowerment clause of Section Five. Thus, Congress provided to itself the Constitutional power to protect rights and guard against misconstruction. Whether or not the framers focused upon the exact new parameters of relative powers, it cannot be denied that they did focus on the need to enhance Congressional powers. That enhancement, into arenas not before recognized as belonging to Congress, of necessity altered the balance among the national powers.

Constitution, Fourteenth Amendment, Congressional powers, legal history

Abstract:
From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA) adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected by land use decisions). This article, part of a symposium at Albany Law School, proposes that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis adopted by RLUIPA. The article proposes legislative corrections to the definition of religious exercise, the order for analyzing disputes, and the appropriate evidentiary burdens and sources for resolving those questions. But it also proposes methods by which parties and courts can address religious land use questions more effectively in the absence of legislative change. In essence, the proposal proceeds by urging that we funnel land use requests and decisions first through a lens of Establishment clause norms; next, through a lens of Equal Protection norms; and then, and only then, would that neutral decision be examined through the lens of Free Exercise norms.

Constitution, Religion, Land Use, Statutory reform, Establishment, Free Exercise, Religious Land Use

Abstract:
This article, written as part of the symposium on the Scholarship of Sanford Levinson, explores how Professor Levinson's theory of constitutional interpretation should intersect with the professional responsibility of a lawyer during representation on a constitutional issue, i.e., "What is the professional responsibility a lawyer has to the Constitution?" The thesis of the piece is that lawyers need to construct an ethical framework for themselves that helps to explain and guide behavior in their role as client representatives who are also public citizens with a sworn fealty to the Constitution - a framework, in other words, that helps them understand and define their role as constructors of Constitutional meaning.

In exploring this question, I use the lens of Professor Levinson's protestant constitutionalism, rather than the lens of professional responsibility law. The former lens focuses attention upon the relationship between the actor (lawyer in the role of client representative) and the Constitution, rather than simply upon the relationship between the lawyer and the client, which has come to be the hallmark of exploring issues about professional responsibility from the perspective of the law of lawyering. Using Professor Levinson's approach permits the inquiry to avoid some of the problems of self-interest and self-protection that have accreted into the law of lawyering.

The article shows how the theory of protestant constitutionalism requires an examination of the role that lawyers do and should play in constitutional interpretation. It then addresses the challenge of defining the lawyer's role, in light of the role of client representation. After presenting a sample case raising many of the difficult issues involved in addressing this question, the article proceeds to examine the lawyer's role by mining Professor Levinson's scholarship for the features of a well-executed lawyerly role. The article proposes that there are three models one can use to describe the lawyer's role: priest (the lawyer as the one who controls interpretation, by applying Supreme Court pronouncements to the client's problem), knowing instrument (the client as in complete control of the interpretation to be advanced, even if the lawyer sincerely disagrees with the constitutionality of that interpretation) and minister (the lawyer as initiator of a constitutional conversation with the client, with both maintaining responsibility for interpreting the constitution). It argues for adopting the minister role as that most consistent with protestant constitutionalism and good professional responsibility theory. Finally, the article proposes a simple rubric to help guide lawyers in executing their dual responsibility to client and Constitution.

constitutional law, constitutional interpretation, professional responsibility, lawyers