Erwin Chemerinsky’s research while affiliated with Loyola Law School and other places

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Professors Erwin Chemerinsky and Catherine Fisk take an issue on several grounds with Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts have a first Amendment right to exclude gays, even though state law prohibits such discrimination. They first criticize Dale's holding that courts must accept the group leadership's characterization of the group's expressive message. The Court's approach short-circuited the process by which an organization ordinarily develops or transforms its expressive message--internal deliberation, public articulation of a message, and recruitment of like-minded members-- and it did so at the expense of many current and former scouts who reasonably believe that homophobia is not the Boy Scout's expressive message. Second, Professor's Chemerinsky and Fisk argue that inclusion of gays would not undermine the Boy Scout's expressive message. They also point out that having gays as scouts or scout leaders is conduct, not speech. Governments can regulate expressive conduct when there is an important governmental interest (such as ending discrimination) unrelated to the suppression of the expressive message, and the impact on the communication is no greater than necessary to achieve its goal. Finally, even if they Boy Scouts does have an expressive interest in excluding gays, Professors Chemerinsky and Fisk argye that Dale is wrong for two reasons. First, antidiscrimination laws are neutral of general applicability with which individuals and groups must comply even when the laws impinge on protected First Amendment speech or conduct. Second, the elimination of discrimination is a compelling governmental interest which antidiscrimination laws are narrowly tailored to achieve.

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The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisor's sexual harrassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governements sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and arge that they cannot be justified by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil rights violations liability advances these goals, and that the Court, therefore should interpret each of these important civil rights statutes to allow such liability.

The filibuster in the United States Senate imposes an effective supermajority requirement for the enactment of most legislation because sixty votes are required to bring a measure to a vote over the objection of any senator. Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indication to the Senate leadership that they intend to do so. The prevalence and invisibility of this "stealth filibuster" dramatically affects which legislation is passed and which nominees are confirmed. The stealth filibuster also raises serious constitutional questions. Summarizing the historical development of Senate filibusters, Professors Fisk and Chemerinsky show that the nature and effects of filibusters have changed significantly as the Senate has grown larger and busier. They argue that, although dilatory debate has a history, the modern stealth filibuster is in significant respects unprecedented. Professors Chemerinsky and Fisk also asses the effects of the filibuster on Senate practice in light of empirical and public choice theories of congressional behavior. Based on this, they conclude that the filibuster is not alone among congressional proceedures in being anitmajoritan and that it may counteract the antimajoritan aspects of other congressional proceedures. Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by the proper plaintiffs. They then conclude that, although the filibuster itself is not unconstititutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses.