This month, I experienced one of the most satisfying events of my professional career. At its 124th Annual Meeting in Williamsburg, Virginia, I was elected to a two year term as President of the Uniform Law Commission. You can find the official press release here.

It is a custom that the incoming President offers a few remarks. Here is what I had to say:

Thank you, Harriet Lansing, for your service as our President. You and your spouse, Allen Klein, leave behind a record of success and an organization that is as strong in its membership and its resources as it has ever been.

Becky and I will never forget your kindness to us and we treasure your friendship. On behalf of the Uniform Law Commission, it it my pleasure to present you with this past president’s pin. I know you will wear it with pride.

Thank you to the previous leaders of this Conference (you know who you are) for the opportunity to prove my commitment to our work and the ULC and for moving me through the leadership path in a manner that ensured I understood our rich history and the culture.

I know too that you would never have entrusted me with the leadership of this organization, but for the wise and gracious ways of my spouse, and I appreciate your recognition of her talent.

We have a wonderful leadership path, and tradition of mentorship. Thanks to it, and to you, I feel ready to provide leadership in the next two years. I am certain that in every area where I need you, the members, are here to lift me up and ensure our continued success. I am committed to paying forward the gifts that have been given to me.

In the next two years, I will respect and maintain the traditions of the Conference. Those traditions produce high quality legislation to protect the Rule of Law and our federal system. We must keep our eyes on the prize: improving and modernizing state law in areas where the law from state to state should be the same or similar.

To do that, we must continue to honor our tradition of face to face meetings and expand the opportunity for a broader group of Commissioner and stakeholders to follow and comment on our process. Doing so will require that we expand our use of technology so that we are more transparent and visible. We can and we should enhance outreach to key audiences including state legislators, their staff, state, local and specialty bar associations and legal educators.

To be sure that we are leveraging technology to full advantage, and that we are aware of the ways that technological change impacts the law, I have asked Commissioner Tom Buttiweg to chair a new ULC Committee on Technology.

We must pay close attention to the language we use in our acts to be sure that our words are as simple and as accessible as possible for lawyers, legislators and the public.

This year I will appoint two new drafting committees and three new study committees. They are:

A Drafting Committee on the Uniform Electronic Registry for Residential Mortgage Notes;
A Drafting Committee on the Revised Uniform Principal and Income Act;
A Study Committee on the Regulation of Drones;
A Study Committee on Involuntary Pornography; and
A Study Committee on a Model Equal Rights Act.

Any member who wishes to serve on a new committee should fill out a Committee Interest form and be sure that the Chicago Office has a current member biographical form on file.

To do all this we need a strong leadership team. Here are the people who have agreed to help guide these efforts:

Executive Committee

Chair                                           Anita Ramasastry         Washington
Immediate Past President     Harriet Lansing             Minnesota
Scope & Program Chair          Carl Lisman                   Vermont
Vice-President                          Melissa Hortman          Minnesota
Treasurer                                   Tom Buiteweg                Michigan
Secretary                                    Dan Robbins                  California
Legislative Council Chair        Ryan Leonard                Oklahoma
At Large                                      Rodney Satterwhite      Texas
At Large                                      Bill Henning                   Alabama
At Large                                      Tim Berg                         Arizona

Scope & Program Committee

Chair                                          Carl Lisman                     Vermont
Member                                    Steve Wilborn                  Kentucky
Member                                    Gail Hagerty                     North Dakota
Member                                    Ed Smith                           Massachusetts
Member                                    Effie Bean Cozart             Tennessee
Member                                    Elisa White                       Arkansas
Member                                    Steven L. Willborn          Nebraska
Member                                    Tom Hemmendinger      Rhode Island
Leg. Chair (ex officio)            Ryan Leonard                   Oklahoma

Division Chairs

Lane Kneedler                 Virginia
Pamela Bertani                California
Bill Barrett                        Indiana
Nora Winkelman             Pennsylvania
John McGarvey                Kentucky
Lane Shetterly                  Oregon

Finally, a word about our next annual meeting in Stowe, Vermont. Becky and I have worked with many of you for more than 20 years. It will be great pleasure for us to bring you to the state that is our home.

There are only 620,000 Vermonters and between us, Becky and I have told nearly all of them to expect approximately 700 of our best friends for a week in July of 2016.

Mount_mansfield_20040926We will meet July 8 through the 14 at Stowe Mountain Lodge. You should expect a warm welcome in a beautiful mountain setting and temperatures in the mid 70s. Altitude should be no problem, as the Lodge is only at 1500 feet. Even the summit of Mount Mansfield is only 4,900 feet.

Once registration opens, make your reservations as soon as you can, as we anticipate that the Hotel will fill quickly!

I appreciate deeply appreciate the confidence in me that you have shown by electing me as President. I count on your support. You can count on Becky and me to do our very best for the ULC in the next two years.

Thank you.

Rich

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I was overjoyed to learn that the United States Supreme Court had decided in Obergefell v. Hodges,[1] that the states must allow same-sex marriage.

I thought of mObergefell 2015-07-20 22.05.29 (3)y many friends and family members who are gay, and what this decision means to them. I thought of my late friend, David W. Curtis, an openly gay man and gay rights activist with whom John Pacht, Julie Frame and I co-founded our current law firm, Hoff Curtis, back in 1988.

I learned a great deal about the lives of gay men and lesbians through David. AIDS was the leading issue for the gay community at that time, and one thing our firm did was to provide legal services to members of that community as it was decimated by the ravages of the disease. Death is the great leveler, and in the end we are all so very human. It’s hard to see a person in stereotyped terms when you sit at his bedside as he faces death, and try to help put his affairs in order. And I learned too of the prejudice and discrimination that gay people faced on a daily basis because of their sexual orientation.

So as I read the Supreme Court’s decision I knew in my bones that it was not just about marriage. It’s fundamentally about equality. It’s an important statement that says that at least in the eyes of the law, gay people are just as good as straight people.

I acknowledge that I am no impartial bystander, although my role in this victory could hardly be more modest. Our law firm, through the work of my law partner Julie Frame, argued an early case, In re Adoption of B.L.V.B., [2] upholding the adoption of a child by the biological mother’s same-sex partner. Together with Mary Bonauto, she tried to protect the visitation rights of a same-sex partner in Titchenal v. Dexter. [3]

And when, in Baker v. State, [4] the movement successfully challenged the legality under the Vermont Constitution of limiting marriage to men and women, as local counsel, I had the privilege of signing a fabulous amicus brief written for Lambda Legal Defense and Education Fund, Inc., and the Vermont Coalition for Lesbian and Gay Rights, by one of the centrally important lawyers of the Freedom to Marry Task Force, Evan Wolfson.

What has occurred since those days is a truly remarkable and rapid change. If you have any doubt about its revolutionary nature, take a few moments to read “How Gay Marriage Became a Constitutional Right,” in the July 1, 2015 edition of The Atlantic.

What is really interesting to me is that – as important as Obergefell itself is – the process that the movement has gone through to achieve the decision may prove, in the long run, to be even more important than the decision itself.

Surely there remain many people who believe that they are entitled, or even obligated, to see gay people in derisive terms and to act accordingly. But the educational and organizing effort that the Freedom to Marry movement used to seek the Obergefell decision has quickly reached the hearts and minds of vast numbers of Americans. It has changed the human fabric of our nation.

This change is an immeasurable good. It moves our nation in the direction of being a kinder, more honest, more equal, and fundamentally more decent, society.

Reading the Supreme Court opinions in Oberegefell takes some time, but it’s an interesting read.

Here is an unsettling truth: Even as a committed supporter of the result, I found real force in the arguments – although not the tone — of the dissenters.

It is indisputable that the Constitution does not contain a direct, express provision that requires that same-sex couples be allowed to marry. And it’s true that domestic relations has traditionally been a matter of state, not federal law. It should largely remain so.

Justice Kennedy’s majority opinion rests most directly on the Due Process Clause. As Chief Justice Roberts’ dissent argues, Kennedy relies on Substantive Due Process. This is a largely discredited doctrine that justices – typically conservative ones — have used to read their own values into the Constitution to invalidate legislation. In recent years, Substantive Due Process has been limited by the idea that it incorporates only values that have deep roots in history, custom or tradition. As Roberts writes, Obergefell can hardly be justified on the theory that same-sex marriage has such roots.

I do believe in judicial self-restraint, and I don’t agree that judges, or even Justices, are or should be empowered to find new constitutional rights in their own values, even when they are values that I share.

I think the best argument supporting the Court’s holding is one that Kennedy relies on only secondarily: Equal Protection. At its base, it’s the idea that government cannot discriminate based on person’s status unless there is an adequate reason to do so. The limits of the idea have been subject to vigorous disagreement and scores of Supreme Court decisions, but it is clearly a basic constitutional right.

The application of the Equal Protection Clause to this issue is well illustrated by comparison to Loving v. Virginia.[5] Loving was the case in which the Supreme Court invalidated Virginia’s anti-miscegenation statute.

African-Americans have virtually explicit legal protection from discrimination under the Civil Rights Amendments to the Constitution, particularly the 13th Amendment. Gay people have no mention in the Constitution. That would provide a credible distinction between members of African-Americans and gay people in terms of providing protection from legal discrimination. But it is not an inevitably telling one. Apart from a history of outright slavery, gay people have much in common with African-Americans. Members of both groups have long endured repression and discrimination through no fault of their own. That is an adequate basis to prohibit legal discrimination.

Today, almost anyone agrees that there is no valid state interest in preventing inter-racial marriage. A similar consensus, that there is no valid state interest in preventing same-sex marriage, is emerging.

I mentioned the derisive tone of the dissents above. It’s bit unusual, but hardly unprecedented.

The credibility of the Supreme Court is the base of its power. Let there be no mistake: the Supreme Court makes policy decisions virtually all the time. But it’s not a legislature and unlike a legislature, it’s not a free-range policy-maker. Its policy decisions are to be grounded in the law, and by law I mean the text of the Constitution, the treaties, and the statutes and regulations.

When a minority of the Court believes that a majority decision is off the constitutional reservation, calling the majority out on the theory that it is acting in excess of its powers is the usual order of the day.

That’s what the minorities did in Bush v. Gore [6] and in Citizens United [7], both cases in which many who have liberal views thought that the Court was out-of-bounds.

Most of us have come to accept those decisions in the sense that we acknowledge that they are the law of that land, even if we think that they were wrongly decided.

The Supreme Court’s right of judicial review, that is, its authority to decide whether a law is valid under our constitution, survived Bush v. Gore and Citizens United without serious challenge. So it will survive King v. Burwell, [8] (upholding Obamacare) and even Obergefell v. Hodges.

Great Britain has managed to live for centuries under the rule of law without either a written constitution or judicial review. No British court has the right to strike down a valid act of Parliament. Under their system, Parliament rules, although it is worth noting that even Parliament has ceded considerable authority to the European Community, and so to the Court of Justice of the European Union.

But under our system, it almost must be as it is. We have a written constitution, and it purports to put certain rights beyond the reach of legislative authority or even the will of a majority of the people. Someone must be the final arbiter of what the Constitution means when applied to specific cases. For the more than 200 years since, that arbiter has been the Supreme Court. We would be lost without its guidance, and that is as true when we dislike its decisions as it is when we are delighted by them.

It is as Justice Robert Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen. [10]

Of course, even the decisions of the United States Supreme Court are not absolutely final. On occasion, the Court overrules its own prior decisions. And the Constitution can be amended. Those are proper avenues by which those who feel aggrieved by a Supreme Court decision can seek redress.

Rich

[1] 576 U.S.___ (No. 14-556, June 26, 2015).

[2] 160 Vt. 368, 628 A.2d 1271, (1993).

[3] 166 Vt. 372, 693 A. 2d 682 (1997).

[4] 170 Vt. 194, 744 A.2d 864 (1999).

[5] 388 U.S. 1 (1967).

[6] 531 U.S. 98 (2000).

[7] 558 U.S. 310 (2010).

[8] 576 U.S. ___ (No. 14-114, June 25, 2015).

[9] 5 U.S. 137 (1803).

[10] 344 U.S. 443, 540 (1953) (concurring). [click to continue…]

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The Model Apportionment of Tort Responsibility Act Explained

June 24, 2015

Last week I testified before Rhode Island’s Special Legislative Commission to Study Changes to the Law of Joint Tortfeasors. Legislation about tort law is a notoriously difficult matter. The interests of the plaintiff’s and defendants bar sharply opposed, and fair consensus is hard to find. Still, Rhode Island is apparently engaged in reconsidering its law […]

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“The Fall and Rise of Lawyers,” Aspiring Lawyers, Law Schools and Bar Associations: Take Notice!

May 26, 2015

On Saturday, CNN published an important story on the status and future of the American legal profession. The story, by University of Tennessee Law Professor Benjamin H. Barton, The Fall and Rise of Lawyers, (May 23, 2015), asserts that sole practitioners have struggled financially for 25 years and that the future looks even worse. My […]

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Wall Street Journal Lifts National Profile of Collateral Consequences

May 19, 2015

Monday’s Wall Street Journal (May 18, 2015), raised the national understanding of problems presented by the proliferation of the collateral consequences of criminal convictions. The print article, published on page A3 of the Journal,  “After Prison, Landing Work is Tricky, Officials Aim to Get More Ex-inmates Back to Work,” focuses on the story of Hashim Lowndes […]

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Thank You, American Law Institute

April 16, 2015

I learned Tuesday that I have been elected to membership in the American Law Institute. I am really very pleased to be elected. The American Law Institute is described as “the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The Institute (made up of 4000 […]

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A Lawyers’ Canon?

March 16, 2015

The idea of a “Western Canon” is a body of books and cultural achievements that are broadly accepted as most important and influential in shaping our culture. One example is Harold Bloom’s, The Western Canon, Riverhead Books, 1994. Obviously, the idea of a canon provides endless opportunity for debate, and little potential for definitive resolution. One area […]

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“The Judge”  Robert Duvall and Robert Downey, Jr. and the Burden of Judging

March 2, 2015

Regular readers of this blog know that I am interested in the feedback loop between popular culture and the law. Recently, I watched “The Judge,” a Robert Duvall and Robert Downey, Jr. film.  And as I did, I wondered about the impact of the film on the public’s view of lawyers and judges. The film is […]

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Does the Requirement of a Unanimous Verdict Favor the Defense in Civil Cases? It’s Not So Clear

February 16, 2015

Over the years there have been a number of proposals to permit jury verdicts in civil cases in Vermont to be made by less than a unanimous vote. Debate over these proposals seems to largely divide the bar along the lines of the clients the debating lawyers represent: most plaintiffs’ lawyers favor such proposals, while […]

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ABA Calls for Repeal of “Stand Your Ground”

February 13, 2015

At its meeting in Houston, Texas on Monday, February 9, the American Bar Association House of Delegates called for the repeal of “Stand your Ground” laws. Some 33 states have adopted Stand Your Ground laws. At common law, individuals who were confronted with an imminent threat of deadly force in public space, had an obligation […]

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