The history of administrative law, according to James Freedman, consists of an extended sense of crisis over the legitimacy of the regulatory state. The specific nature of the crisis has differed in each historical stage depending on the dominant concern of each era, but it has always been related to the difficulty of reconciling the administrative state with traditional American constitutional and political values. In the Reformation of Administrative Law, Richard Stewart discusses the crisis of legitimacy that characterized the 1960s and 1970s and the reforms that were adopted as a result. Stewart was uncertain what might follow the reformation, but now we know. The reformation has been followed by a “counterreformation” that is based on a set of premises that run directly counter for the premises of the reformation. Recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate government. This literature, like the earlier literature on the reformation and the counterreformation, adopts interest group pluralism as the basis of the administrative process. This essay evaluates the reformation, the counterreformation and the most recent scholarship through a different lens. As I have in other recent work, I propose that the American tradition of philosophical pragmatism offers the best methodology to evaluate and justify the administrative process. This approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing recent proposals by Professor Stewart and others because the available evidence indicates the methods that they favor only work in some specific contexts.
{"title":"Pragmatic Administrative Law","authors":"S. Shapiro","doi":"10.2202/1539-8323.1057","DOIUrl":"https://doi.org/10.2202/1539-8323.1057","url":null,"abstract":"The history of administrative law, according to James Freedman, consists of an extended sense of crisis over the legitimacy of the regulatory state. The specific nature of the crisis has differed in each historical stage depending on the dominant concern of each era, but it has always been related to the difficulty of reconciling the administrative state with traditional American constitutional and political values. In the Reformation of Administrative Law, Richard Stewart discusses the crisis of legitimacy that characterized the 1960s and 1970s and the reforms that were adopted as a result. Stewart was uncertain what might follow the reformation, but now we know. The reformation has been followed by a “counterreformation” that is based on a set of premises that run directly counter for the premises of the reformation. Recently, some scholars, including Professor Stewart, have sought to move beyond the counterreformation, which they find insufficient to produce sound and legitimate government. This literature, like the earlier literature on the reformation and the counterreformation, adopts interest group pluralism as the basis of the administrative process. This essay evaluates the reformation, the counterreformation and the most recent scholarship through a different lens. As I have in other recent work, I propose that the American tradition of philosophical pragmatism offers the best methodology to evaluate and justify the administrative process. This approach leads me to three general conclusions. First, the reformation has been a greater success than Professor Stewart recognizes in the Reformation or his subsequent work. Second, the counterreformation has produced changes in the administrative process that cannot be justified as either improving the rationality of regulation or the legitimacy of the process. Finally, we should be quite cautious about implementing recent proposals by Professor Stewart and others because the available evidence indicates the methods that they favor only work in some specific contexts.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1057","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564237","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}
{"title":"Damages Under the Necessity Doctrine","authors":"J. Gordley","doi":"10.2202/1539-8323.1064","DOIUrl":"https://doi.org/10.2202/1539-8323.1064","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"77 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1064","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564068","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}
Prologue In this quite lengthy and, no doubt for some, awkwardly structured, article, I take up what American tort law calls the " incomplete privilege " that arises when people are forced by circumstances of " necessity " to harm or consume the property of others. I focus on the much-written about case of Vincent v. Lake Erie Transportation Co. There a huge storm prevented a ship from leaving a dock where its cargo had just been unloaded. The captain reasonably had the crew secure the ship to the dock, and although the ship was saved, as a result of the storm the dock suffered some damage. In 1910, the Minnesota Supreme Court held the ship owner strictly liable for the damage done to the dock. In the Restatement of Torts, this problem came to be analyzed as one in which the ship captain is first understood to have had a privilege to remain at the dock, even if that otherwise would have been a trespass. But, unlike, say, the full privilege of self-defense, the privilege arising from " necessity " is said to be incomplete, creating an obligation of the ship owner to compensate the dock owner. This same principle, it has been widely argued, applies as well to a hiker who breaks into a cabin to save herself when trapped on a mountain in an unexpected storm. The hiker saves her life by eating some food and burning some wood she finds there. In such a case, while the hiker is understood to have a privilege to do what she did, it is generally asserted that she nonetheless owes a legal duty to compensate the cabin owner. Nearly all scholars who have written about this problem support the result in Vincent and the result of the Vincent principle applied to the cabin case. Moreover, almost all the many moral philosophers who have examined the necessity issue agree that there is a moral duty to pay for the food and wood and to pay for the harm to the dock. I am one of those very few who disagree. My position rests on these values. First, I believe that people should be under, and should feel themselves under, a moral obligation to help others in relatively easy rescue situations (which I consider these to be). In the society in which I would like to live, ordinary people would readily …
在这篇相当长的文章中，我将讨论美国侵权法所称的“不完全特权”，即人们在“必要”的情况下被迫损害或消耗他人的财产。我关注的是被广泛报道的文森特诉伊利湖运输公司(Vincent v. Lake Erie Transportation Co.)一案。一场巨大的风暴阻止了一艘刚刚卸货的船只离开码头。船长合理地让船员将船固定在码头上，虽然船得救了，但由于风暴，码头遭受了一些损坏。1910年，明尼苏达州最高法院判定船东对码头的损坏负有严格责任。在侵权重述案中，这一问题被分析为这样一个问题，即船长首先被理解为有权留在码头上，即使这样做会构成侵权行为。但是，与充分的自卫特权不同，由“必要”产生的特权被认为是不完整的，因此船东有义务赔偿船坞所有者。人们普遍认为，同样的原则也适用于那些被困在山上遭遇意外风暴的徒步旅行者。徒步旅行者吃了一些食物，烧了一些她在那里找到的木头，救了她一命。在这种情况下，虽然人们认为徒步旅行者有特权去做她所做的事情，但通常认为她仍然负有赔偿小屋主人的法律责任。几乎所有写过这个问题的学者都支持文森特的结果，以及文森特原理应用于小屋案例的结果。此外，几乎所有研究过必要性问题的道德哲学家都同意，人们有道德责任为食物和木材买单，为对码头的伤害买单。我是少数不同意这种观点的人之一。我的立场建立在这些价值观之上。首先，我认为在相对容易的救援情况下，人们应该有道义上的义务去帮助别人(我认为这是)。在我想要生活的社会里，普通人很容易……
{"title":"The \"Necessity\" Defense And The Failure Of Tort Theory: The Case Against Strict Liability For Damages Caused While Exercising Self-Help In An Emergency","authors":"S. Sugarman","doi":"10.2202/1539-8323.1063","DOIUrl":"https://doi.org/10.2202/1539-8323.1063","url":null,"abstract":"Prologue In this quite lengthy and, no doubt for some, awkwardly structured, article, I take up what American tort law calls the \" incomplete privilege \" that arises when people are forced by circumstances of \" necessity \" to harm or consume the property of others. I focus on the much-written about case of Vincent v. Lake Erie Transportation Co. There a huge storm prevented a ship from leaving a dock where its cargo had just been unloaded. The captain reasonably had the crew secure the ship to the dock, and although the ship was saved, as a result of the storm the dock suffered some damage. In 1910, the Minnesota Supreme Court held the ship owner strictly liable for the damage done to the dock. In the Restatement of Torts, this problem came to be analyzed as one in which the ship captain is first understood to have had a privilege to remain at the dock, even if that otherwise would have been a trespass. But, unlike, say, the full privilege of self-defense, the privilege arising from \" necessity \" is said to be incomplete, creating an obligation of the ship owner to compensate the dock owner. This same principle, it has been widely argued, applies as well to a hiker who breaks into a cabin to save herself when trapped on a mountain in an unexpected storm. The hiker saves her life by eating some food and burning some wood she finds there. In such a case, while the hiker is understood to have a privilege to do what she did, it is generally asserted that she nonetheless owes a legal duty to compensate the cabin owner. Nearly all scholars who have written about this problem support the result in Vincent and the result of the Vincent principle applied to the cabin case. Moreover, almost all the many moral philosophers who have examined the necessity issue agree that there is a moral duty to pay for the food and wood and to pay for the harm to the dock. I am one of those very few who disagree. My position rests on these values. First, I believe that people should be under, and should feel themselves under, a moral obligation to help others in relatively easy rescue situations (which I consider these to be). In the society in which I would like to live, ordinary people would readily …","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1063","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564036","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}
Vincent v. Lake Erie has given rise to two enduring controversies. The first concerns the imposition of the duty of repair itself. Lake Erie acted reasonably in lashing its ship to Vincent's dock and damaging the dock. Why should justified conduct--doing the right thing--give rise to liability in tort? The second concerns the basis of the duty of reparation recognized by the case. Is it rooted in Vincent's property right to exclude Lake Erie, a right overriden by the urgency of Lake Erie's plight but perhaps possessed of enough residual pull to compel compensation? Or is it grounded not on Vincent's property right but on Lake Erie's tortious wrong? Or, third, is it rooted in ideas of unjust enrichment?This article argues that Vincent's duty of reparation does not rest on Vincent’s right to exclude. Vincent's right to exclude is only a prima facie right, and it is extinguished by the privilege of private necessity. Lake Erie's duty of reparation rests, rather, on the wrongfulness of Lake Erie’s saving its ship at the cost of damaging Vincent’s dock, without making reparation for the harm that it has done. An ideal of fairness provides the moral basis for this judgment of wrongfulness. Conceptions of strict liability in tort and unjust enrichment in the law of restitution supply the principal legal bases for Vincent's duty of reparation. An idea of unjust enrichment captures one aspect of the ideal of fairness at work in Vincent: Because the preexisting baseline of legal entitlement had pinned the lion’s share of risk of loss from the storm on Lake Erie, Lake Erie would be enriching itself unjustly if were to gain by shifting the cost of the storm onto Vincent's shoulders. Ideas of strict liability in tort express another aspect of the ideal of fairness that underpins Vincent: It is wrong for Vincent to suffer at Lake Erie’s hands simply because the infliction of injury on Vincent is to Lake Erie's advantage. The invocation of the Just Compensation clause makes explicit the link between the law of unjust enrichment’s focus on unjust gain and the law of torts’ focus on wrongful loss: Gain and loss are flip sides of the same coin and they should go hand in hand. It is only fair that Lake Erie should bear the costs as well as reap the benefits of its actions. Implicit in this case for strict liability is a way of making peace with the claims of fault liability. Fault liability takes reasonableness of conduct as its touchstone, and sets out to reward conduct which does more good than harm. Strict liability in Vincent has no bone to pick with reasonable conduct. It does not seek to discourage reasonable conduct. It seeks, instead, to promote both reasonable conduct and “reasonable harm.” Strict liability in Vincent authorizes--privileges--Lake Erie's unconsented to entry onto Vincent's property, but conditions that entry on Lake Erie shouldering the costs of the harm wrought by its entry. It is only reasonable that Lake Erie--who profits from its use of
{"title":"Property Right and Tortious Wrong in Vincent v. Lake Erie","authors":"Gregory C. Keating","doi":"10.2202/1539-8323.1066","DOIUrl":"https://doi.org/10.2202/1539-8323.1066","url":null,"abstract":"Vincent v. Lake Erie has given rise to two enduring controversies. The first concerns the imposition of the duty of repair itself. Lake Erie acted reasonably in lashing its ship to Vincent's dock and damaging the dock. Why should justified conduct--doing the right thing--give rise to liability in tort? The second concerns the basis of the duty of reparation recognized by the case. Is it rooted in Vincent's property right to exclude Lake Erie, a right overriden by the urgency of Lake Erie's plight but perhaps possessed of enough residual pull to compel compensation? Or is it grounded not on Vincent's property right but on Lake Erie's tortious wrong? Or, third, is it rooted in ideas of unjust enrichment?This article argues that Vincent's duty of reparation does not rest on Vincent’s right to exclude. Vincent's right to exclude is only a prima facie right, and it is extinguished by the privilege of private necessity. Lake Erie's duty of reparation rests, rather, on the wrongfulness of Lake Erie’s saving its ship at the cost of damaging Vincent’s dock, without making reparation for the harm that it has done. An ideal of fairness provides the moral basis for this judgment of wrongfulness. Conceptions of strict liability in tort and unjust enrichment in the law of restitution supply the principal legal bases for Vincent's duty of reparation. An idea of unjust enrichment captures one aspect of the ideal of fairness at work in Vincent: Because the preexisting baseline of legal entitlement had pinned the lion’s share of risk of loss from the storm on Lake Erie, Lake Erie would be enriching itself unjustly if were to gain by shifting the cost of the storm onto Vincent's shoulders. Ideas of strict liability in tort express another aspect of the ideal of fairness that underpins Vincent: It is wrong for Vincent to suffer at Lake Erie’s hands simply because the infliction of injury on Vincent is to Lake Erie's advantage. The invocation of the Just Compensation clause makes explicit the link between the law of unjust enrichment’s focus on unjust gain and the law of torts’ focus on wrongful loss: Gain and loss are flip sides of the same coin and they should go hand in hand. It is only fair that Lake Erie should bear the costs as well as reap the benefits of its actions. Implicit in this case for strict liability is a way of making peace with the claims of fault liability. Fault liability takes reasonableness of conduct as its touchstone, and sets out to reward conduct which does more good than harm. Strict liability in Vincent has no bone to pick with reasonable conduct. It does not seek to discourage reasonable conduct. It seeks, instead, to promote both reasonable conduct and “reasonable harm.” Strict liability in Vincent authorizes--privileges--Lake Erie's unconsented to entry onto Vincent's property, but conditions that entry on Lake Erie shouldering the costs of the harm wrought by its entry. It is only reasonable that Lake Erie--who profits from its use of","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1066","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564181","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 essay comments on the impact of Richard Stewart’s seminal article, “The Reformation of American Administrative Law.” It posits that the most long-lasting contribution of that article was not its primary thesis that the interest group model of the administrative state is flawed, but rather its expression of doubt that any single unifying theory could adequately explain or justify administrative law. This essay surveys attempts that scholars have made subsequent to the publication of Stewart’s article to provide an overarching theory of the administrative state and describes flaws with each of these attempts. The essay evaluates whether, in light of Stewart’s contribution doubting the adequacy of any such model, looking for such models makes sense. It concludes that despite the inevitability that such models will be flawed, they will provide those who develop administrative law with insights and ideas that at the margins will be able to improve the operation of the administrative state.
{"title":"The Quixotic Quest for a \"Unified\" Theory of the Administrative State.","authors":"M. Seidenfeld","doi":"10.2202/1539-8323.1056","DOIUrl":"https://doi.org/10.2202/1539-8323.1056","url":null,"abstract":"This essay comments on the impact of Richard Stewart’s seminal article, “The Reformation of American Administrative Law.” It posits that the most long-lasting contribution of that article was not its primary thesis that the interest group model of the administrative state is flawed, but rather its expression of doubt that any single unifying theory could adequately explain or justify administrative law. This essay surveys attempts that scholars have made subsequent to the publication of Stewart’s article to provide an overarching theory of the administrative state and describes flaws with each of these attempts. The essay evaluates whether, in light of Stewart’s contribution doubting the adequacy of any such model, looking for such models makes sense. It concludes that despite the inevitability that such models will be flawed, they will provide those who develop administrative law with insights and ideas that at the margins will be able to improve the operation of the administrative state.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1056","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68563456","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}
{"title":"Structuring a \"Dense Complexity\": Accountability and the Project of Administrative Law","authors":"J. Mashaw","doi":"10.2202/1539-8323.1061","DOIUrl":"https://doi.org/10.2202/1539-8323.1061","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1061","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68563960","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}
{"title":"The Defence Of Private Necessity In Canadian Tort Law","authors":"L. Klar","doi":"10.2202/1539-8323.1065","DOIUrl":"https://doi.org/10.2202/1539-8323.1065","url":null,"abstract":"","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1065","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564118","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 Essay criticizes the proposed Federal Marriage Amendment as inconsistent with the principle of federalism. It argues that after recent Supreme Court decisions on the rights of gays, it is likely that federal and state laws discriminating against the recognition of same-sex marriages are likely to be found unconstitutional. It then argues that a constitutional amendment defining marriage is inconsistent with the purposes behind our federal system of government, and that a more preferable approach would preserve to each state the ability to define marriage for itself.
{"title":"The Conservative Case against the Federal Marriage Amendment","authors":"J. Yoo, Anntim Vulchev","doi":"10.2202/1539-8323.1054","DOIUrl":"https://doi.org/10.2202/1539-8323.1054","url":null,"abstract":"This Essay criticizes the proposed Federal Marriage Amendment as inconsistent with the principle of federalism. It argues that after recent Supreme Court decisions on the rights of gays, it is likely that federal and state laws discriminating against the recognition of same-sex marriages are likely to be found unconstitutional. It then argues that a constitutional amendment defining marriage is inconsistent with the purposes behind our federal system of government, and that a more preferable approach would preserve to each state the ability to define marriage for itself.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2004-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1054","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68562477","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}
Proposals to amend the Constitution to prohibit same-sex marriages were recently actively discussed in the U.S. Senate and are likely to receive attention in the House before the year’s end. This article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By tracing the arguments made in support of these amendments, this article reveals a strong resonance between prior attempts to constitutionalize aspects of the institution of marriage and current proposed amendments. The article also argues that, in hindsight, the previously proposed amendments were not necessary because state and federal legislatures and courts were able to address problems relating to marriage without amending the Constitution and without destabilizing the delicate balance of power between states and the federal government. Against this background, the article concludes that current proposals to amend the Constitution are similarly neither necessary nor wise.
{"title":"Past and Present Proposed Amendments to the United States Constitution Regarding Marriage","authors":"E. Stein","doi":"10.2202/1539-8323.1052","DOIUrl":"https://doi.org/10.2202/1539-8323.1052","url":null,"abstract":"Proposals to amend the Constitution to prohibit same-sex marriages were recently actively discussed in the U.S. Senate and are likely to receive attention in the House before the year’s end. This article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By tracing the arguments made in support of these amendments, this article reveals a strong resonance between prior attempts to constitutionalize aspects of the institution of marriage and current proposed amendments. The article also argues that, in hindsight, the previously proposed amendments were not necessary because state and federal legislatures and courts were able to address problems relating to marriage without amending the Constitution and without destabilizing the delicate balance of power between states and the federal government. Against this background, the article concludes that current proposals to amend the Constitution are similarly neither necessary nor wise.","PeriodicalId":34921,"journal":{"name":"Issues in Legal Scholarship","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2004-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1539-8323.1052","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68562416","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}
William N. Eskridge, Darren R. Spedale, Hans Ytterberg
The proponents of same-sex marriage have long argued that committed lesbian and gay couples should have the same legal options as committed straight couples, including marriage. Same-sex marriage opponents have shifted from one argument to another in an effort to find one that can appeal to the increasing number of Americans open to equal rights for gay people. Since the 1990s, opponents have argued that allowing same-sex marriage would undermine the institution of marriage. In recent publications, Hoover Institute scholar Stanley Kurtz has expanded this argument and provided evidence to support it. He argues that Scandinavian "registered partnerships", which provide same-sex couples with almost all the same rights and responsibilities as marriage, are "both an effect and a reinforcing cause of this Scandinavian trend toward unmarried parenthood." According to Kurtz, "Once marriage is separated from the idea of parenthood, there seems little reason to deny marriage, or marriage-like partnerships, to same-sex couples. By the same token, once marriage (or a status close to marriage) has been redefined to include same-sex couples, the symbolic separation between marriage and parenthood is confirmed, locked-in, and reinforced."Eskridge, Spedale, and Ytterberg dissent from Kurtz's speculative causal link between registered partnerships and what he calls the "end" of marriage in Scandinavia. To begin with, the authors question Kurtz's logic. Family law throughout much of the West has, arguably, undermined marriage as an institution by making it easier to exit and by providing civil alternatives with some of the benefits and few of the obligations. But expanding the eligibility of marriage, or a parallel institution, to same-sex couples who want to take on the civil obligations as well as the benefits of marriage does not logically undermine the institution of marriage. More important, the evidence from Scandinavia refutes rather than supports Kurtz's logic. Long-range trends in marriage rates, divorce rates, and nonmarital births either have been unaffected by the advent of same-sex partnerships or have moved in a direction that suggests that the institution of marriage is strengthening. Finally, the authors focus on the security of children in Scandinavia and find none of the ill effects posited by Kurtz. In a concluding section, Eskridge, Spedale, and Ytterberg raise normative questions relevant to the ongoing search for arguments to deny gay people civil equality. The big loser in such a campaign is marriage. By scapegoating gay marriage (or partnerships) as the "cause" of marriage's decline, pseudo-conservatives tend to reinforce the actual causes of the decline - the options straight couples are utilizing, such as no-fault divorce and cohabitation rights.
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