Matthew Lasar asks the $64,000 question on Ars Technica: "Did Congress really give the FCC power to protect the Net? The jurisdictional question, as Lasar notes, lies at the heart of the viability of the FCC's proposed net neutrality rules. The answer depends on one's view of what regulatory powers Congress bestowed upon the agency in the Communications Act of 1934, as amended: Broadly stated, the FCC was created and given jurisdiction over interstate wire and radio commerce in communication for the purpose of making available "a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges." It is in the understanding of specifically how the FCC was to go about carrying out this broad purpose that reasonable minds disagree.The FCC has made clear its view that it may regulate the network management practices of broadband Internet service providers under its implied or "ancillary jurisdiction."But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to "we can regulate the Internet however we like without waiting for Congress to act." The problem with the doctrine of ancillary jurisdiction is that it is potentially limitless as exercise after exercise takes the FCC further and further away from its core congressionally-delegated regulatory responsibilities. Express delegations of regulatory authority by Congress are important for two reasons: they both give power and limit its exercise in ways agreed upon by our elected representatives through duly-enacted legislation. It is particularly important that unelected government officials stay within the bounds of these delegations. Our individual freedoms as well as our democracy depend on it.
{"title":"Jurisdiction: The $64,000 Question","authors":"Barbara S. Esbin","doi":"10.2139/ssrn.1500530","DOIUrl":"https://doi.org/10.2139/ssrn.1500530","url":null,"abstract":"Matthew Lasar asks the $64,000 question on Ars Technica: \"Did Congress really give the FCC power to protect the Net? The jurisdictional question, as Lasar notes, lies at the heart of the viability of the FCC's proposed net neutrality rules. The answer depends on one's view of what regulatory powers Congress bestowed upon the agency in the Communications Act of 1934, as amended: Broadly stated, the FCC was created and given jurisdiction over interstate wire and radio commerce in communication for the purpose of making available \"a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.\" It is in the understanding of specifically how the FCC was to go about carrying out this broad purpose that reasonable minds disagree.The FCC has made clear its view that it may regulate the network management practices of broadband Internet service providers under its implied or \"ancillary jurisdiction.\"But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its \"ancillary jurisdiction,\" a position that amounts to \"we can regulate the Internet however we like without waiting for Congress to act.\" The problem with the doctrine of ancillary jurisdiction is that it is potentially limitless as exercise after exercise takes the FCC further and further away from its core congressionally-delegated regulatory responsibilities. Express delegations of regulatory authority by Congress are important for two reasons: they both give power and limit its exercise in ways agreed upon by our elected representatives through duly-enacted legislation. It is particularly important that unelected government officials stay within the bounds of these delegations. Our individual freedoms as well as our democracy depend on it.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121743138","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}
On January 17, 1919, the New York Times reported that "[t]he American nation was voted dry today [January 16, 1919] by Constitutional Amendment when the Legislature of Nebraska, the home of William Jennings Bryan, one of the foremost champions of prohibition, ratified the proposal." This development was a triumph for the Woman's Christian Temperance Union, and even more so for the political lobbying group, the Anti-Saloon League. These groups had successfully guided the constitutional amendment through thirty-six states after the House of Representatives voted on December 17, 1917 by 282 to 128, and the Senate voted on December 18, 1917 by 47 to 8, to adopt a national prohibition amendment. The Acting Secretary of State Frank Polk declared that the amendment had been ratified by the requisite number of states on January 29, 1919. It was to take effect under its terms one year following the adoption. But the dry forces were not done with the ratification. There were two other states beside Nebraska that also ratified on January 16, 1919 - Wyoming and Missouri. In public statements, the proponents of the amendment confidently claimed that the number of states ratifying would rise to forty by January 17, 1919, and the remainder would follow quickly thereafter. Actually, the Drys were only partially correct: it took until 1922 for the forty-sixth state, New Jersey, to ratify, and Connecticut and Rhode Island would never do so. This Article presents the record of rejection by the two hold-out states - Connecticut and Rhode Island. It discusses the pressures on the legislators of the two states to ratify or reject the constitutional amendment as well as the outcome of the debate. The Article relates interesting political developments in each state. Connecticut's two legislative bodies split over the issue of ratification and never chose to pursue it further. Rhode Island decided to argue its position in the United States Supreme Court. In an ironic twist, discussed in this article, Connecticut's leading stand against the amendment was almost lost to history. In the end, Connecticut and Rhode Island, though initially in the minority, emerged victorious as the "noble experiment" ended with the repeal of prohibition in 1933.
{"title":"Stopping the Wind that Blows and the Rivers that Run: Connecticut and Rhode Island Reject the Prohibition Amendment","authors":"Henry S. Cohn, Ethan P. Davis","doi":"10.2139/SSRN.1418009","DOIUrl":"https://doi.org/10.2139/SSRN.1418009","url":null,"abstract":"On January 17, 1919, the New York Times reported that \"[t]he American nation was voted dry today [January 16, 1919] by Constitutional Amendment when the Legislature of Nebraska, the home of William Jennings Bryan, one of the foremost champions of prohibition, ratified the proposal.\" This development was a triumph for the Woman's Christian Temperance Union, and even more so for the political lobbying group, the Anti-Saloon League. These groups had successfully guided the constitutional amendment through thirty-six states after the House of Representatives voted on December 17, 1917 by 282 to 128, and the Senate voted on December 18, 1917 by 47 to 8, to adopt a national prohibition amendment. The Acting Secretary of State Frank Polk declared that the amendment had been ratified by the requisite number of states on January 29, 1919. It was to take effect under its terms one year following the adoption. But the dry forces were not done with the ratification. There were two other states beside Nebraska that also ratified on January 16, 1919 - Wyoming and Missouri. In public statements, the proponents of the amendment confidently claimed that the number of states ratifying would rise to forty by January 17, 1919, and the remainder would follow quickly thereafter. Actually, the Drys were only partially correct: it took until 1922 for the forty-sixth state, New Jersey, to ratify, and Connecticut and Rhode Island would never do so. This Article presents the record of rejection by the two hold-out states - Connecticut and Rhode Island. It discusses the pressures on the legislators of the two states to ratify or reject the constitutional amendment as well as the outcome of the debate. The Article relates interesting political developments in each state. Connecticut's two legislative bodies split over the issue of ratification and never chose to pursue it further. Rhode Island decided to argue its position in the United States Supreme Court. In an ironic twist, discussed in this article, Connecticut's leading stand against the amendment was almost lost to history. In the end, Connecticut and Rhode Island, though initially in the minority, emerged victorious as the \"noble experiment\" ended with the repeal of prohibition in 1933.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123273369","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}
Online privacy, child safety, free speech and anonymity are on a collision course. The 1998 Children’s Online Privacy Protection Act (COPPA) already mandates certain online privacy protections for children under 13, but many advocate expanding online privacy protections for both adolescents and adults. Furthermore, efforts continue at both the federal and state levels to institute new regulations, such as age verification mandates, aimed at ensuring the safety of children online. There is an inherent tension between these objectives: Attempts to achieve perfectly “safe” online environments will likely require the surrender of some privacy and speech rights, including the right to speak anonymously. These tensions are coming to a head with state-based efforts to expand COPPA, which requires “verifiable parental consent” before certain sites or services may collect, or enable the sharing of, personal information from children under the age of 13. Several proposed state laws would extend COPPA’s parental-consent framework to cover all adolescents under 18. This seemingly small change would require age verification of not only adolescents and their parents, but - for the first time - large numbers of adults, thus raising grave First Amendment concerns. Such broad age verification mandates would, ironically, reduce online privacy by requiring more information to be collected from both adolescents and adults for age verification purposes, while doing little to make adolescents safer. In practical terms, the increased scale of “COPPA 2.0” efforts would present significant implementation and enforcement challenges. Finally, state-level COPPA 2.0 proposals would likely conflict with the Constitution’s Commerce Clause. Despite these profound problems, COPPA expansion has great rhetorical appeal and seems likely to be at the heart of future child safety debates - especially efforts to require mandatory age verification. There are, however, many better ways to protect children online than by expanding COPPA beyond its original, limited purpose.
{"title":"COPPA 2.0: The New Battle Over Privacy, Age Verification, Online Safety & Free Speech","authors":"B. Szoka, Adam Thierer","doi":"10.2139/SSRN.1408204","DOIUrl":"https://doi.org/10.2139/SSRN.1408204","url":null,"abstract":"Online privacy, child safety, free speech and anonymity are on a collision course. The 1998 Children’s Online Privacy Protection Act (COPPA) already mandates certain online privacy protections for children under 13, but many advocate expanding online privacy protections for both adolescents and adults. Furthermore, efforts continue at both the federal and state levels to institute new regulations, such as age verification mandates, aimed at ensuring the safety of children online. There is an inherent tension between these objectives: Attempts to achieve perfectly “safe” online environments will likely require the surrender of some privacy and speech rights, including the right to speak anonymously. These tensions are coming to a head with state-based efforts to expand COPPA, which requires “verifiable parental consent” before certain sites or services may collect, or enable the sharing of, personal information from children under the age of 13. Several proposed state laws would extend COPPA’s parental-consent framework to cover all adolescents under 18. This seemingly small change would require age verification of not only adolescents and their parents, but - for the first time - large numbers of adults, thus raising grave First Amendment concerns. Such broad age verification mandates would, ironically, reduce online privacy by requiring more information to be collected from both adolescents and adults for age verification purposes, while doing little to make adolescents safer. In practical terms, the increased scale of “COPPA 2.0” efforts would present significant implementation and enforcement challenges. Finally, state-level COPPA 2.0 proposals would likely conflict with the Constitution’s Commerce Clause. Despite these profound problems, COPPA expansion has great rhetorical appeal and seems likely to be at the heart of future child safety debates - especially efforts to require mandatory age verification. There are, however, many better ways to protect children online than by expanding COPPA beyond its original, limited purpose.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125791085","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}
K. Williams, Thomas Stratmann, Ciara Torres-Spelliscy
Electoral competition is essential to democracy. Yet the incumbency rate in state-house legislative campaigns is nearly 95 percent. This report examines campaign contribution limits and the impact limits can have on electoral competition. The research on which this report is based was inspired by a 2006 U.S. Supreme Court decision that overturned low contribution limits. The data presented here refutes the Court's assumptions that low contribution limits damage challengers and shows that the lowest contribution limits, those set at $500 or below, enhance challengers' ability to campaign against incumbents in state legislative races. Though public financing systems also increase electoral competition, the Brennan Center's research suggests that incumbents nonetheless continue to opt for public financing systems. Of course, enhanced competition under low limits is only one factor to be considered. Competition, after all, is one key goal in electoral reform, but not the only one. We may wish also to encourage citizen participation and voter engagement. But if we are looking for reasons not to enact low limits, a deleterious impact on competition is not one of them. For this reason, the Supreme Court was wrong in Randall v. Sorrell. Our joint findings make it plain: low contribution limits and public financing substantially narrow the gap between incumbents and challengers. These reforms can be mutually enhancing as reasonable contribution limits are central to a well-functioning public financing system. Incumbency will continue to provide electoral advantages. However, decreasing the vote margins between votes cast for incumbents and their challengers signals greater electoral competiveness and, as such, strengthens democracy.
{"title":"Electoral Competition and Low Contribution Limits","authors":"K. Williams, Thomas Stratmann, Ciara Torres-Spelliscy","doi":"10.2139/SSRN.1400740","DOIUrl":"https://doi.org/10.2139/SSRN.1400740","url":null,"abstract":"Electoral competition is essential to democracy. Yet the incumbency rate in state-house legislative campaigns is nearly 95 percent. This report examines campaign contribution limits and the impact limits can have on electoral competition. The research on which this report is based was inspired by a 2006 U.S. Supreme Court decision that overturned low contribution limits. The data presented here refutes the Court's assumptions that low contribution limits damage challengers and shows that the lowest contribution limits, those set at $500 or below, enhance challengers' ability to campaign against incumbents in state legislative races. Though public financing systems also increase electoral competition, the Brennan Center's research suggests that incumbents nonetheless continue to opt for public financing systems. Of course, enhanced competition under low limits is only one factor to be considered. Competition, after all, is one key goal in electoral reform, but not the only one. We may wish also to encourage citizen participation and voter engagement. But if we are looking for reasons not to enact low limits, a deleterious impact on competition is not one of them. For this reason, the Supreme Court was wrong in Randall v. Sorrell. Our joint findings make it plain: low contribution limits and public financing substantially narrow the gap between incumbents and challengers. These reforms can be mutually enhancing as reasonable contribution limits are central to a well-functioning public financing system. Incumbency will continue to provide electoral advantages. However, decreasing the vote margins between votes cast for incumbents and their challengers signals greater electoral competiveness and, as such, strengthens democracy.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":" 19","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120834426","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 is the fourth installment in a series of articles examining the famous twenty eight pairs of “dueling canons” left to us in 1950 by Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the rules or Canons of about how Statutes are to be Construed,” 3 VANDERBILT L.REV. 395 (1950). After more than half a century, Llewellyn’s assault on the legitimacy of canons remains an imposing landmark in statutory interpretation scholarship. The first three installments of this study, covering pairs 1 through 16, showed that Llewellyn’s thesis that to every canon of construction there was another to opposite effect did not stand up to examination. This study of pairs 17 through 20 continues the pattern. Both Thrust #17 and thrust #18 are very weak presumptive principles, easily countermanded by other principles such as that the legislature should be presumed to have acted consistently (Parry #17), constitutionally (Ashwander), rationally, or to some purpose (Parry #18). Only a determination to deny legislative intention in favor of interpretive formulae can save the contrariety of these pairs. Pair #19 is a complete failure of comparability and contrariety. Thrust #20 is the great (and much maligned) paradigm of canons, expressio unius est exclusio alterius. But it too is merely a presumption, in opposition to Llewellyn’s chosen Parry #20 only if given an unreasonably wooden and universal authority.
这是一系列文章的第四部分，研究了卡尔·卢埃林(Karl N. Llewellyn)在1950年留给我们的著名的28对“决斗法则”，“关于如何解释法规的上诉判决理论和规则的评论”，3 VANDERBILT L.REV。395(1950)。半个多世纪过去了，卢埃林对教规合法性的抨击仍然是法理解释学界的一个重要里程碑。本研究的前三期(从第1对到第16对)表明，Llewellyn关于每一种构造标准都有另一种相反效果的理论是经不起检验的。对17到20对的研究延续了这一模式。第17条和第18条都是非常弱的推定原则，很容易被其他原则所推翻，比如立法机构应该被推定为一贯(第17条)、符合宪法(Ashwander)、理性或出于某种目的(第18条)。只有决心否定立法意图，支持解释性公式，才能挽救这两对的矛盾。第19对是可比性和矛盾性的彻底失败。推力#20是经典的伟大(也是备受诟病的)范例，表达统一即排他性替代。但这也只是一种假设，只有在被赋予不合理的木头人和普遍权威的情况下，它才会与卢埃林选择的第20党相对立。
{"title":"'Only a Sith Thinks Like That': Llewellyn's 'Dueling Canons,' Seventeen to Twenty","authors":"M. Sinclair","doi":"10.2139/SSRN.1387503","DOIUrl":"https://doi.org/10.2139/SSRN.1387503","url":null,"abstract":"This is the fourth installment in a series of articles examining the famous twenty eight pairs of “dueling canons” left to us in 1950 by Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the rules or Canons of about how Statutes are to be Construed,” 3 VANDERBILT L.REV. 395 (1950). After more than half a century, Llewellyn’s assault on the legitimacy of canons remains an imposing landmark in statutory interpretation scholarship. The first three installments of this study, covering pairs 1 through 16, showed that Llewellyn’s thesis that to every canon of construction there was another to opposite effect did not stand up to examination. This study of pairs 17 through 20 continues the pattern. Both Thrust #17 and thrust #18 are very weak presumptive principles, easily countermanded by other principles such as that the legislature should be presumed to have acted consistently (Parry #17), constitutionally (Ashwander), rationally, or to some purpose (Parry #18). Only a determination to deny legislative intention in favor of interpretive formulae can save the contrariety of these pairs. Pair #19 is a complete failure of comparability and contrariety. Thrust #20 is the great (and much maligned) paradigm of canons, expressio unius est exclusio alterius. But it too is merely a presumption, in opposition to Llewellyn’s chosen Parry #20 only if given an unreasonably wooden and universal authority.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131721959","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 short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.
{"title":"Anonymity, Signaling, and Silence as Speech","authors":"P. Horwitz","doi":"10.2139/SSRN.1361225","DOIUrl":"https://doi.org/10.2139/SSRN.1361225","url":null,"abstract":"This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of \"anonymity\" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of \"anonymous\" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128325083","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 presents a historical, public policy and analytical critique of the United States Supreme Court's revision of the implied repeal doctrine in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264, 127 S. Ct. 2383 (2007). The article takes a historical perspective to demonstrate the sound public policy rationale for the more traditional approach to this canon of statutory interpretation. The article analyzes the decision against the backdrop of more than 400 years of English and American courts traditional application of this doctrine to avoid judicial intrusion into the legislative prerogative. It is argued that the Court's revision of the implied repeal doctrine ignores the long and steady history of the doctrine; that the Court's new approach is bad law and bad policy; and that the Court should move to restore the traditional doctrine fully and clearly.
本文对美国最高法院在瑞士信贷证券(美国)有限责任公司诉Billing案(551 U.S. 264, 127 S. Ct. 2383(2007))中对默示废除原则的修订进行了历史、公共政策和分析性批评。本文从历史的角度论证了更传统的法定解释方法的合理的公共政策依据。本文分析了英美法院400多年来为避免司法侵犯立法特权而对这一原则的传统运用。有人认为，最高法院对默示废除原则的修订忽视了该原则的悠久而稳定的历史;法院的新做法是糟糕的法律和糟糕的政策;法院应该采取行动，全面而明确地恢复传统的原则。
{"title":"The Supreme Court's New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of 'Plain Repugnancy'","authors":"Jesse W. Markham","doi":"10.2139/ssrn.1358474","DOIUrl":"https://doi.org/10.2139/ssrn.1358474","url":null,"abstract":"This article presents a historical, public policy and analytical critique of the United States Supreme Court's revision of the implied repeal doctrine in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264, 127 S. Ct. 2383 (2007). The article takes a historical perspective to demonstrate the sound public policy rationale for the more traditional approach to this canon of statutory interpretation. The article analyzes the decision against the backdrop of more than 400 years of English and American courts traditional application of this doctrine to avoid judicial intrusion into the legislative prerogative. It is argued that the Court's revision of the implied repeal doctrine ignores the long and steady history of the doctrine; that the Court's new approach is bad law and bad policy; and that the Court should move to restore the traditional doctrine fully and clearly.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131655554","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 upholding of Congress’s Filled Milk Act of 1923 which banned the shipment in interstate commerce of skimmed milk compounded with certain fats or oils excited little comment at the time. Yet a seemingly passing observation arising out of the decision has continued to hold enduring, almost obsessive, significance for academics and judges alike. I refer, of course, to Justice Stone’s famous footnote 4 in U.S. v. Carolene Products. That footnote, arguably the most famous in legal history, reads in relevant part: “…It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation…Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or racial minorities…whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”The promise of this brief reference to a heightened role for judicial review where political processes were likely to work against discrete and insular minorities served to inspire John Hart Ely’s Democracy and Distrust. Forty years after Carolene Products had been decided, Ely agreed that “discrete and insular minorities” could often be failed by political processes and that courts should step in to remedy such failures. Ely realized, as Justice Stone did, that discrete and insular minorities could forge political alliances and “mutual defense pacts” with other minorities as well as with broader majorities. He knew, however, that such wheeling and dealing has its limitations – sometimes political allies simply cannot be found.
{"title":"The Promise of Carolene Products: A Footnote to the Footnote","authors":"Neelanjan Maitra","doi":"10.2139/ssrn.1375619","DOIUrl":"https://doi.org/10.2139/ssrn.1375619","url":null,"abstract":"The Supreme Court’s upholding of Congress’s Filled Milk Act of 1923 which banned the shipment in interstate commerce of skimmed milk compounded with certain fats or oils excited little comment at the time. Yet a seemingly passing observation arising out of the decision has continued to hold enduring, almost obsessive, significance for academics and judges alike. I refer, of course, to Justice Stone’s famous footnote 4 in U.S. v. Carolene Products. That footnote, arguably the most famous in legal history, reads in relevant part: “…It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation…Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or racial minorities…whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”The promise of this brief reference to a heightened role for judicial review where political processes were likely to work against discrete and insular minorities served to inspire John Hart Ely’s Democracy and Distrust. Forty years after Carolene Products had been decided, Ely agreed that “discrete and insular minorities” could often be failed by political processes and that courts should step in to remedy such failures. Ely realized, as Justice Stone did, that discrete and insular minorities could forge political alliances and “mutual defense pacts” with other minorities as well as with broader majorities. He knew, however, that such wheeling and dealing has its limitations – sometimes political allies simply cannot be found.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"44 11","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120811311","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}
Federal government support for the terrorism insurance industry has a very brief history. Prior to 9/11, insurers did not take terrorist-related losses into account when underwriting risks. The industry did not even conceive of an attack that could generate such significant losses. The dramatic shift in perception since then has caused many to suggest that terrorism risks are uninsurable. The notion that terrorism risk was uninsurable was part of the rationale advanced for government intervention. When the initial efforts at legislation failed, the industry began to withdraw from the market by adding exclusions for terrorism-related losses to their policies. Reinsurers were the first to adopt such exclusions and their withdrawal left the primary insurers at risk of insolvency in the event of a major terrorism loss. The fundamental problem of terrorism insurance is the impossibility of adequate capital following a large loss. When Congress decided that reduced availability of terrorism insurance was causing a drag on the U.S. economy, the Terrorism Risk Insurance Act (TRIA) was adopted. TRIA provides liquidity through government support to pay terrorism claims. This paper examines the essential features of the TRIA while asking how terrorism insurance could optimally be regulated. It concludes with the suggestion to extend to insurers of terrorism-related loss the same access to public capital as the Federal Reserve provides to banks in times of liquidity crises.
{"title":"Government Support for the Terrorism Insurance Industry: Where do We go from Here?","authors":"T. Russell, J. Thomas","doi":"10.2139/SSRN.1267231","DOIUrl":"https://doi.org/10.2139/SSRN.1267231","url":null,"abstract":"Federal government support for the terrorism insurance industry has a very brief history. Prior to 9/11, insurers did not take terrorist-related losses into account when underwriting risks. The industry did not even conceive of an attack that could generate such significant losses. The dramatic shift in perception since then has caused many to suggest that terrorism risks are uninsurable. The notion that terrorism risk was uninsurable was part of the rationale advanced for government intervention. When the initial efforts at legislation failed, the industry began to withdraw from the market by adding exclusions for terrorism-related losses to their policies. Reinsurers were the first to adopt such exclusions and their withdrawal left the primary insurers at risk of insolvency in the event of a major terrorism loss. The fundamental problem of terrorism insurance is the impossibility of adequate capital following a large loss. When Congress decided that reduced availability of terrorism insurance was causing a drag on the U.S. economy, the Terrorism Risk Insurance Act (TRIA) was adopted. TRIA provides liquidity through government support to pay terrorism claims. This paper examines the essential features of the TRIA while asking how terrorism insurance could optimally be regulated. It concludes with the suggestion to extend to insurers of terrorism-related loss the same access to public capital as the Federal Reserve provides to banks in times of liquidity crises.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128684032","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}
Pub Date : 2008-04-17DOI: 10.1111/j.1468-2230.2008.00700.x
A. Boyle
This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of ‘risk’, the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.
{"title":"The Law and Incapacity Determinations: A Conflict of Governance?","authors":"A. Boyle","doi":"10.1111/j.1468-2230.2008.00700.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2008.00700.x","url":null,"abstract":"This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of ‘risk’, the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.","PeriodicalId":166493,"journal":{"name":"Legislation & Statutory Interpretation eJournal","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116396159","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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