Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first Article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the development of deference doctrines since Chevron v. NRDC sets deliberation at cross-purposes, confusing agencies about what is publicly accessible and denying the public information about vast swaths of government decision-making. This Article contends that the Deliberation Paradox should be recognized and discarded in favor of an approach that grants deference only to deliberation that is publicly disclosed, with significant implications for judicial deference to agency interpretations of law and for inter-agency collaboration.
{"title":"The Deliberation Paradox and Administrative Law","authors":"W. Sherman","doi":"10.2139/SSRN.2399920","DOIUrl":"https://doi.org/10.2139/SSRN.2399920","url":null,"abstract":"Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first Article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the development of deference doctrines since Chevron v. NRDC sets deliberation at cross-purposes, confusing agencies about what is publicly accessible and denying the public information about vast swaths of government decision-making. This Article contends that the Deliberation Paradox should be recognized and discarded in favor of an approach that grants deference only to deliberation that is publicly disclosed, with significant implications for judicial deference to agency interpretations of law and for inter-agency collaboration.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130010493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
New biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but to change how healthy people think, feel, behave, and appear to others. Controversies over these nontherapeutic practices are a pervasive feature of contemporary American culture, from students on "study drugs" and cops on steroids to skin-lightening by black celebrities and the over-prescription of antidepressants. Yet the diversity of these controversies often masks their common root – namely, disputes about the propriety of using medical technologies as tools for shaping one’s identity.Some observers believe these so-called "enhancement" practices threaten important values, offering unfair advantages to users and undermining their ability to lead "authentic" lives. But existing systems of medical regulation, which were designed to promote the safety of therapeutic treatments and to deter drug abuse, are largely blind to concerns beyond protecting human health. As identity-modifying practices continue to proliferate, calls are growing to restrict access to these technologies on moral grounds.These proposals overlook the United States’ extensive and unfortunate experiences regulating nontherapeutic medical practices to enforce contested conceptions of morality. From Prohibition and the war on drugs to laws restricting contraceptives and abortion procedures, these efforts have been costly, ineffective, and intrusive. They have also interfered with fundamental liberties involving bodily integrity and identity – a fact that is widely recognized in the context of reproduction technologies, but largely overlooked with respect to other medical interventions. Rather than expanding our reliance on contested moral concerns in policing access to medical interventions, the U.S. should purge its existing regulation of morality-based intrusions and recommit itself to protecting human health.
{"title":"Regulating Identity: Medical Regulation as Social Control","authors":"Matt Lamkin","doi":"10.2139/SSRN.2505772","DOIUrl":"https://doi.org/10.2139/SSRN.2505772","url":null,"abstract":"New biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but to change how healthy people think, feel, behave, and appear to others. Controversies over these nontherapeutic practices are a pervasive feature of contemporary American culture, from students on \"study drugs\" and cops on steroids to skin-lightening by black celebrities and the over-prescription of antidepressants. Yet the diversity of these controversies often masks their common root – namely, disputes about the propriety of using medical technologies as tools for shaping one’s identity.Some observers believe these so-called \"enhancement\" practices threaten important values, offering unfair advantages to users and undermining their ability to lead \"authentic\" lives. But existing systems of medical regulation, which were designed to promote the safety of therapeutic treatments and to deter drug abuse, are largely blind to concerns beyond protecting human health. As identity-modifying practices continue to proliferate, calls are growing to restrict access to these technologies on moral grounds.These proposals overlook the United States’ extensive and unfortunate experiences regulating nontherapeutic medical practices to enforce contested conceptions of morality. From Prohibition and the war on drugs to laws restricting contraceptives and abortion procedures, these efforts have been costly, ineffective, and intrusive. They have also interfered with fundamental liberties involving bodily integrity and identity – a fact that is widely recognized in the context of reproduction technologies, but largely overlooked with respect to other medical interventions. Rather than expanding our reliance on contested moral concerns in policing access to medical interventions, the U.S. should purge its existing regulation of morality-based intrusions and recommit itself to protecting human health.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126612396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the Federal Circuit’s review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the “correct” construction and ultimate result in the case.The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is unlikely to correct constructions that resulted in a patentee lose below, and the court is more likely to reverse claim constructions that resulted below in patentee wins. And this difference is magnified in cases involving electronics, information technologies, or business methods, with such patentees fairing even worse than others in claim construction appeals.These findings suggest that the Federal Circuit’s review of claim interpretations is still truly de novo and performed to correct lower court decisions (a) where patentees win and (b) especially where patents covering electronics, information technologies, and business methods succeed.
{"title":"Patent Claim Interpretation Review: Deference or Correction Driven?","authors":"C. Cotropia","doi":"10.2139/SSRN.2265962","DOIUrl":"https://doi.org/10.2139/SSRN.2265962","url":null,"abstract":"This article examines the Federal Circuit’s review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the “correct” construction and ultimate result in the case.The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is unlikely to correct constructions that resulted in a patentee lose below, and the court is more likely to reverse claim constructions that resulted below in patentee wins. And this difference is magnified in cases involving electronics, information technologies, or business methods, with such patentees fairing even worse than others in claim construction appeals.These findings suggest that the Federal Circuit’s review of claim interpretations is still truly de novo and performed to correct lower court decisions (a) where patentees win and (b) especially where patents covering electronics, information technologies, and business methods succeed.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130112475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals -- achieving a narrow concept of short-term safety premised on physical separation in the home. This article argues for creating a comprehensive theory that addresses the rights to a home when there is domestic violence by focusing on each party's dignity, the importance of home and ending domestic violence, as opposed to merely "safety." There arc several laws that address the home when there is domestic violence. The civil protection order (CPO) laws are the most prevalent; they exist in all fifty states and Washington, D.C. While most offer a vacate remedy to exclude the perpetrator of abuse from the shared home, they do so with varying effectiveness and petitioner success rates. Also, very few provide any economic support to maintain the home or find a new home if respondent is not excluded. And all 51 jurisdictions provide very few options to support a woman's choice to stay in the shared home with her abuser, despite her decision that it would best end the domestic violence. Beyond these shortcomings, the CPO vacate provisions also clash with property law in problematic ways for the respondents. Thirty-four jurisdictions permit vacating a perpetrator from his home, despite being the sole owner of the property. And there is a trend of making these once temporary vacate orders permanent. This clash can make the legal system seem unfair to perpetrators, which can lower their rate of compliance with the CPO. As a result, perpetrators may increase their violence against women subjected to abuse. This Article proposes a renewed anti-domestic violence movement that is focused on the dignity of and greater home access for both parties. Such a movement could focus on expanding existing laws that would both promote dignity and end domestic violence while ensuring greater home access. For instance, one proposal is for more thorough court fact finding in making the vacate order that includes the abuse as well as each party's risk of potential homelessness and the extent of their personhood interests in the home. Another proposal is to increase the number of home options for the parties by creating shelters for men who are abusive, more jurisdictions that require alternative housing through a CPO, and increased funding for low-barrier battered women shelters and transitional housing.
{"title":"A Home with Dignity: Domestic Violence and Property Rights","authors":"M. Johnson","doi":"10.2139/SSRN.2332089","DOIUrl":"https://doi.org/10.2139/SSRN.2332089","url":null,"abstract":"This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals -- achieving a narrow concept of short-term safety premised on physical separation in the home. This article argues for creating a comprehensive theory that addresses the rights to a home when there is domestic violence by focusing on each party's dignity, the importance of home and ending domestic violence, as opposed to merely \"safety.\" There arc several laws that address the home when there is domestic violence. The civil protection order (CPO) laws are the most prevalent; they exist in all fifty states and Washington, D.C. While most offer a vacate remedy to exclude the perpetrator of abuse from the shared home, they do so with varying effectiveness and petitioner success rates. Also, very few provide any economic support to maintain the home or find a new home if respondent is not excluded. And all 51 jurisdictions provide very few options to support a woman's choice to stay in the shared home with her abuser, despite her decision that it would best end the domestic violence. Beyond these shortcomings, the CPO vacate provisions also clash with property law in problematic ways for the respondents. Thirty-four jurisdictions permit vacating a perpetrator from his home, despite being the sole owner of the property. And there is a trend of making these once temporary vacate orders permanent. This clash can make the legal system seem unfair to perpetrators, which can lower their rate of compliance with the CPO. As a result, perpetrators may increase their violence against women subjected to abuse. This Article proposes a renewed anti-domestic violence movement that is focused on the dignity of and greater home access for both parties. Such a movement could focus on expanding existing laws that would both promote dignity and end domestic violence while ensuring greater home access. For instance, one proposal is for more thorough court fact finding in making the vacate order that includes the abuse as well as each party's risk of potential homelessness and the extent of their personhood interests in the home. Another proposal is to increase the number of home options for the parties by creating shelters for men who are abusive, more jurisdictions that require alternative housing through a CPO, and increased funding for low-barrier battered women shelters and transitional housing.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126517536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism. Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles. The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.
{"title":"Originalism Talk: A Legal History","authors":"M. Ziegler","doi":"10.2139/SSRN.2274787","DOIUrl":"https://doi.org/10.2139/SSRN.2274787","url":null,"abstract":"Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism. Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles. The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126219895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to offer a more complete account of trans-substantivity, one that explains the principle in all of the contexts in which it surfaces. This inquiry leads to a novel defense of trans-substantivity as a principle of doctrinal design. Trans-substantivity is justified as a response to deficits in the performance of institutions that craft and administer interpretive, procedural, and administrative law. This defense not only challenges the prevailing skepticism in procedural scholarship regarding the principle’s normative appeal. It also provides a metric to determine when doctrine should remain trans-substantive, and when doctrine may legitimately splinter into substance-specific strains.
{"title":"Trans-Substantivity and the Processes of American Law","authors":"D. Marcus","doi":"10.2139/SSRN.2220505","DOIUrl":"https://doi.org/10.2139/SSRN.2220505","url":null,"abstract":"The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to offer a more complete account of trans-substantivity, one that explains the principle in all of the contexts in which it surfaces. This inquiry leads to a novel defense of trans-substantivity as a principle of doctrinal design. Trans-substantivity is justified as a response to deficits in the performance of institutions that craft and administer interpretive, procedural, and administrative law. This defense not only challenges the prevailing skepticism in procedural scholarship regarding the principle’s normative appeal. It also provides a metric to determine when doctrine should remain trans-substantive, and when doctrine may legitimately splinter into substance-specific strains.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117216926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2011, in Snyder v. Phelps, the military funeral protest case involving the Westboro Baptist Church, the United States Supreme Court again warned that courts needed to protect speech broadly, lest judges become what the Court called "inadvertent censors."1 In the opinion, the Court touched upon what might be appropriate news, though the case only tangentially involved journalism. In a paragraph that specifically mentioned newsworthiness, the Court reminded readers that a matter of public concern2 would be any matter that related to political, social, or other concerns of the community, regardless of its inappropriateness or controversial nature.3The Snyder opinion is filled with related citations to the Court's earlier, famous First Amendment jurisprudence upholding media rights to report or publish, including a case that refused to hold a newspaper liable for publishing the name of a rape victim,4 a case in which a magazine published a photo spread fictionalizing in part a family's terror at the hands of captors,5 and a case in which minister Jerry Falwell was parodied in a particularly tasteless way by Hustler magazine.6The Snyder case, therefore, was obviously not the first time the Justices had tried their hand at defining newsworthiness. They had been doing so for well more than a century, in fact, and long before those famous cited decisions, sometimes acting more directly as after-the-fact editors and sometimes mentioning news value in a dicta-like fashion. In this way, the Supreme Court has decades of experience acting as a kind of a super news editor.To better understand this role and why it matters, it is important to understand what non-judicial news editors do. Within any newsroom, news editors have tremendous power and responsibility. They ultimately decide what news and information is appropriate public fodder and what news and information, though true, is better left unwritten or unsaid.7 A news editor, for example, might decide that certain truthful information is too private or too embarrassing or too harmful to be part of a news story, even if the information might be relevant to some readers. A politician's affair, for example, might be withheld if reporters or editors ultimately decide that it has little to do with the politician's political life.8 Given the journalistic ethics standard for public persons, such information about a private person would likely never be published by a mainstream news source because, in any journalist's estimation, there would be nothing newsworthy for the public in the revelation.And this is where the judicial system comes in. Should similarly private information be published about a public or private figure, and should the person sue for a privacy invasion, courts and juries are ultimately left to decide whether the public value of the news item should trump the person's right to privacy. The Restatement, for example, describes the balance this way:One who gives publicity to a matter concernin
2011年，在涉及威斯特布路浸信会(Westboro Baptist Church)的军事葬礼抗议案斯奈德诉菲尔普斯案(Snyder v. Phelps)中，美国最高法院再次警告称，法院需要广泛地保护言论，以免法官成为法院所说的“无意的审查者”。在意见书中，法院触及了什么可能是合适的新闻，尽管该案件只略微涉及新闻业。在一段特别提到新闻价值的段落中，法院提醒读者，任何与政治、社会或其他社会关注有关的事项都是公众关注的事项，无论其是否恰当或具有争议性。3引用相关的斯奈德的观点充满了法院的早些时候,著名的第一修正案的判例支持报告或发布媒体权利,包括一个案例,拒绝举行报纸负责出版强奸受害者的名字,4的一个案件中,一本杂志照片传播故事发表在一个家庭的一部分恐怖的劫匪,5和一个案件中,部长杰里·福尔韦尔尤其是无味地模仿了《好色客》杂志。因此，斯奈德案显然不是大法官们第一次尝试定义新闻价值。事实上，早在那些著名的被引用的决定之前，他们就已经这样做了一个多世纪，有时更直接地扮演事后编辑的角色，有时以一种类似于命令的方式提及新闻价值。通过这种方式，最高法院拥有几十年的超级新闻编辑的经验。为了更好地理解这一角色及其重要性，了解非司法新闻编辑的工作是很重要的。在任何新闻编辑室，新闻编辑都有巨大的权力和责任。他们最终决定哪些新闻和信息是合适的公众素材，哪些新闻和信息虽然是真实的，但最好不要写下来或不说出来例如，新闻编辑可能会认为某些真实的信息太私密、太尴尬或太有害，不适合作为新闻报道的一部分，即使这些信息可能与一些读者相关。例如，如果记者或编辑最终认定某政治家的私事与他的政治生活没有什么关系，那就可以不予披露考虑到公众人物的新闻道德标准，主流新闻来源可能永远不会公布有关私人的信息，因为在任何记者看来，这些信息对公众来说没有任何新闻价值。这就是司法系统发挥作用的地方。如果类似的关于公众人物或私人人物的私人信息被公布，如果当事人起诉侵犯隐私，法院和陪审团最终将决定新闻的公共价值是否应该高于个人的隐私权。例如，《重述》以这种方式描述了这种平衡:如果一个人公开了与他人私生活有关的事情，那么他就必须对侵犯他人的隐私承担责任，如果公开的事情是(a)对一个理智的人来说是高度冒犯的，并且(b)对公众来说不是合法的关注。因此，新闻的定义在隐私诉讼原因中变得高度相关，因为决定隐私索赔的事实发现者被要求作为新闻编辑来决定这些信息是否属于适合公众传播的类型-它是否“引起合法的公众关注”。然而，合法的公众关注并不是基于公众需要知道的。《重述》提供了一个广泛的定义，表明公众合理关注的问题包括事故、罕见疾病、青春期前怀孕，以及其他“或多或少令人遗憾、具有大众吸引力”的多种问题。我以前曾提出，下级法院最近更能接受公布私人事实侵权和相关的类似隐私的诉因。…
{"title":"The Justices and News Judgment: The Supreme Court as News Editor","authors":"A. Gajda","doi":"10.2139/SSRN.2610179","DOIUrl":"https://doi.org/10.2139/SSRN.2610179","url":null,"abstract":"In 2011, in Snyder v. Phelps, the military funeral protest case involving the Westboro Baptist Church, the United States Supreme Court again warned that courts needed to protect speech broadly, lest judges become what the Court called \"inadvertent censors.\"1 In the opinion, the Court touched upon what might be appropriate news, though the case only tangentially involved journalism. In a paragraph that specifically mentioned newsworthiness, the Court reminded readers that a matter of public concern2 would be any matter that related to political, social, or other concerns of the community, regardless of its inappropriateness or controversial nature.3The Snyder opinion is filled with related citations to the Court's earlier, famous First Amendment jurisprudence upholding media rights to report or publish, including a case that refused to hold a newspaper liable for publishing the name of a rape victim,4 a case in which a magazine published a photo spread fictionalizing in part a family's terror at the hands of captors,5 and a case in which minister Jerry Falwell was parodied in a particularly tasteless way by Hustler magazine.6The Snyder case, therefore, was obviously not the first time the Justices had tried their hand at defining newsworthiness. They had been doing so for well more than a century, in fact, and long before those famous cited decisions, sometimes acting more directly as after-the-fact editors and sometimes mentioning news value in a dicta-like fashion. In this way, the Supreme Court has decades of experience acting as a kind of a super news editor.To better understand this role and why it matters, it is important to understand what non-judicial news editors do. Within any newsroom, news editors have tremendous power and responsibility. They ultimately decide what news and information is appropriate public fodder and what news and information, though true, is better left unwritten or unsaid.7 A news editor, for example, might decide that certain truthful information is too private or too embarrassing or too harmful to be part of a news story, even if the information might be relevant to some readers. A politician's affair, for example, might be withheld if reporters or editors ultimately decide that it has little to do with the politician's political life.8 Given the journalistic ethics standard for public persons, such information about a private person would likely never be published by a mainstream news source because, in any journalist's estimation, there would be nothing newsworthy for the public in the revelation.And this is where the judicial system comes in. Should similarly private information be published about a public or private figure, and should the person sue for a privacy invasion, courts and juries are ultimately left to decide whether the public value of the news item should trump the person's right to privacy. The Restatement, for example, describes the balance this way:One who gives publicity to a matter concernin","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"471 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116517166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts. This, then, is a good time to begin consideration of what the disapproval portion of the Endorsement Test should prohibit. In this Article, I defend the idea that courts apply an “explicit negative reference” test to determine if the government has unconstitutionally disapproved of religion. After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider. The Article concludes by suggesting that the increasing importance of the disapproval portion of the Endorsement Test weighs strongly in favor of courts keeping the Endorsement Test despite the departure of its creator, Justice O’Connor, and the continued criticism leveled at it from courts and commentators.
{"title":"Government Disapproval of Religion","authors":"Jay D. Wexler","doi":"10.2139/SSRN.1883597","DOIUrl":"https://doi.org/10.2139/SSRN.1883597","url":null,"abstract":"The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts. This, then, is a good time to begin consideration of what the disapproval portion of the Endorsement Test should prohibit. In this Article, I defend the idea that courts apply an “explicit negative reference” test to determine if the government has unconstitutionally disapproved of religion. After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider. The Article concludes by suggesting that the increasing importance of the disapproval portion of the Endorsement Test weighs strongly in favor of courts keeping the Endorsement Test despite the departure of its creator, Justice O’Connor, and the continued criticism leveled at it from courts and commentators.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115267029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory. First, I briefly review the debate in originalism over the role of constitutional precedent. Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist precedents. Third, in the heart of the Article, I explain the roles of originalist precedent in constitutional interpretation, described by the Interpretative and Constructive Approaches toward precedent. The Interpretative Approach is that originalist precedent serves the epistemic role of providing presumptive evidence of the original meaning and its proper application. The Constructive Approach is that originalist precedent serves the creative role of determining the defeasible content of the Constitution’s meaning. Next, I explain how the Interpretative and Constructive Approaches operate in practice. I show that originalist precedent serves the roles of implementing the original meaning, embedding the original meaning in constitutional law, and affecting other areas of constitutional law through its gravitational force. In so arguing, I will elucidate how the role of originalist precedent varies depending on whether the context is one of constitutional interpretation or constitutional construction. Then, I briefly revisit the original meaning of “judicial Power” in Article III, which requires federal judges to give significant respect to constitutional precedent. I show that the Interpretative and Constructive Approaches meet Article III’s mandate. More importantly, they show that it makes sense to follow Article III’s mandate. The conception of originalist precedent offered in this Article completes the circle of my originalist theory of precedent. In an earlier article, I showed why and how judges should give nonoriginalist precedent significant respect. In this Article, I finish that project by showing how judges should give originalist precedent significant respect via the Interpretative and Constructive Approaches.
{"title":"An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent","authors":"Lee J. Strang","doi":"10.2139/SSRN.1470762","DOIUrl":"https://doi.org/10.2139/SSRN.1470762","url":null,"abstract":"In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory. First, I briefly review the debate in originalism over the role of constitutional precedent. Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist precedents. Third, in the heart of the Article, I explain the roles of originalist precedent in constitutional interpretation, described by the Interpretative and Constructive Approaches toward precedent. The Interpretative Approach is that originalist precedent serves the epistemic role of providing presumptive evidence of the original meaning and its proper application. The Constructive Approach is that originalist precedent serves the creative role of determining the defeasible content of the Constitution’s meaning. Next, I explain how the Interpretative and Constructive Approaches operate in practice. I show that originalist precedent serves the roles of implementing the original meaning, embedding the original meaning in constitutional law, and affecting other areas of constitutional law through its gravitational force. In so arguing, I will elucidate how the role of originalist precedent varies depending on whether the context is one of constitutional interpretation or constitutional construction. Then, I briefly revisit the original meaning of “judicial Power” in Article III, which requires federal judges to give significant respect to constitutional precedent. I show that the Interpretative and Constructive Approaches meet Article III’s mandate. More importantly, they show that it makes sense to follow Article III’s mandate. The conception of originalist precedent offered in this Article completes the circle of my originalist theory of precedent. In an earlier article, I showed why and how judges should give nonoriginalist precedent significant respect. In this Article, I finish that project by showing how judges should give originalist precedent significant respect via the Interpretative and Constructive Approaches.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133672734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Do we really need another law review article about foreign law in constitutional interpretation? In fact we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism, in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have advocated just such an approach, and at least one sitting Justice has joined in this chorus in both extrajudicial commentary and in a dissenting opinion. But to date, the Court has yet to take this much-mooted step, perhaps due to an awareness of the complex theoretical challenges such an approach would raise. A few opponents to the Court’s actual practice have forcefully observed that the Court’s use of foreign law has lacked the rigor and impartiality that would be necessary to make it credible. What even these scholars have not done, and what this essay ventures, is to consider these claims within the broader context of the Court’s use, and misuse, of all manner of evidence employed in connection with questions of legislative fact in constitutional adjudication.
{"title":"Foreign Law as Legislative Fact in Constitutional Cases","authors":"A. C. Bryant","doi":"10.2139/SSRN.1786847","DOIUrl":"https://doi.org/10.2139/SSRN.1786847","url":null,"abstract":"Do we really need another law review article about foreign law in constitutional interpretation? In fact we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism, in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have advocated just such an approach, and at least one sitting Justice has joined in this chorus in both extrajudicial commentary and in a dissenting opinion. But to date, the Court has yet to take this much-mooted step, perhaps due to an awareness of the complex theoretical challenges such an approach would raise. A few opponents to the Court’s actual practice have forcefully observed that the Court’s use of foreign law has lacked the rigor and impartiality that would be necessary to make it credible. What even these scholars have not done, and what this essay ventures, is to consider these claims within the broader context of the Court’s use, and misuse, of all manner of evidence employed in connection with questions of legislative fact in constitutional adjudication.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125097006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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