Opponents of marriage equality in California, Connecticut, and Iowa have argued that gay and straight couples are not “similarly situated.” These litigants have framed “similarly situated” as a threshold inquiry that must be satisfied for equal protection plaintiffs to merit full equal protection review. Courts in Iowa and California have questioned this construction of the “similarly situated” requirement, noting that it essentially permits an end run around equal protection scrutiny. This Article is the first to focus exclusively on the “similarly situated” requirement. It delves into the history of the phrase “similarly situated,” tracing its appearance in equal protection case law in an 1884 precursor case to Yick Wo v. Hopkins. The Article argues that “similarly situated” analysis is not a precondition to equal protection review, but rather a restatement of the central principles of equal protection, specifically the relationship between the statutory classification and legislative purpose. It examines cases in which “similarly situated” analysis was hotly litigated, including the marriage equality cases. It asserts that, properly understood and applied, “similarly situated” analysis is one-and-the-same as “rational basis with bite,” or intermediate scrutiny, and could play a role in a unified approach to equal protection. It concludes by noting that “similarly situated” analysis is inextricably linked to our conceptions of the social institutions at issue.

Prison and jail regulation is the administrative law of mass incarceration. Although the United States imprisons more people than any other nation, our corrections policies are a legal “no man’s land.” Scholars ignore them. Courts defer to them. States routinely exempt them from their administrative procedure act requirements. This Article focuses on the largely unexamined area of corrections regulation and makes the case for subjecting corrections policies to notice-and-comment rulemaking, or according them less deference. Corrections rules became increasingly important when the first wave of prison reform efforts produced bureaucratization of prison systems in the 1970s and early 1980s. Subsequently, incarceration rates sky-rocketed, particularly for people of color. While courts have abandoned an explicit “hands-off” policy towards prisons, they have switched instead to a posture of deference to corrections policies. As a result, prison and jail regulation is a legal regime that reinforces racial hierarchies. This Article discusses the wide range of corrections policies that affect prisoners and their families, as well as free communities. With 700,000 prisoners returning home annually, it argues, we cannot ignore prison and jail regulation, for reasons of public health and safety, if not fairness. The Article canvasses state administrative procedure acts and confirms that corrections policies are often exempt or partially exempt from rulemaking requirements. It calls for greater opportunities for democratic participation, accountability, and transparency in corrections rule-making.

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman’s case is a paradigmatic DNA exoneration—involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This article uses the published opinions affirming Mr. Tillman’s conviction—particularly his direct appeal to the Connecticut Supreme Court and his appeal from the state habeas proceeding—to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman’s exoneration reveal any problems with appellate litigation, or is it the product of mistakes in investigation and adjudication that are beyond the purview of appellate courts? There is no question that the root causes of Mr. Tillman’s wrongful conviction must be addressed at the investigatory and trial level. However, in this article, I argue that certain features of appellate review that appear in the Tillman opinions—heavy reliance on tools that I describe loosely as “harm-type” and “preservation-type” analyses, as well as deferential ineffective assistance of counsel standards—can contribute over the long-term to local criminal justice cultures that fail to guard adequately against wrongful convictions.