{"title":"Whose body is it anyway? An updated model of healthcare decision-making rights for adolescents.","authors":"Kimberly M Mutcherson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"14 2","pages":"251-325"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25684778","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 chair, the needle, and the damage done: what the electric chair and the rebirth of the method-of-execution challenge could mean for the future of the Eighth Amendment.","authors":"Timothy S Kearns","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"15 1","pages":"197-229"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26141439","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 orderly and effective operation of our national system of government was intended to depend to an exceptional degree upon certain norms of cooperation among its competing branches. The strength of those norms is essential to securing the primary political asset that our government design was intended to help realize: an especially robust form of democratic legitimacy. From this standpoint, it is constitutionally worrisome that norms critical to inter-branch cooperation are coming under heedless assault. To illustrate the problem, this article revisits four critical episodes that have involved destabilizing and antidemocratic initiatives, each undertaken by a branch of the national government while in the control of the current, very conservative generation of Republican party leadership: the Iran-Contra affair, the government shutdown of 1995, the impeachment of President Clinton, and the Senate stonewalling of President Clinton's judicial nominations. The repeated willingness of the Republican Party's most conservative elements to engage in such initiatives is not rooted in political conservatism per-se. It reflects rather the narrowing social and ideological base of the Republican Party, and is consistent with a contempt for democratic pluralism that characterizes the constitutional outlook of leading Republican legal theorists. Unless matters are improved, the United States may otherwise be headed towards a new political equilibrium that does considerable violence to America's modern practice of democratic legitimacy.
{"title":"When Inter-branch Norms Break Down: Of Arms-for-Hostages, 'Orderly Shutdowns,' Presidential Impeachments, and Judicial 'Coups'","authors":"P. Shane","doi":"10.31228/osf.io/h8rz5","DOIUrl":"https://doi.org/10.31228/osf.io/h8rz5","url":null,"abstract":"The orderly and effective operation of our national system of government was intended to depend to an exceptional degree upon certain norms of cooperation among its competing branches. The strength of those norms is essential to securing the primary political asset that our government design was intended to help realize: an especially robust form of democratic legitimacy. From this standpoint, it is constitutionally worrisome that norms critical to inter-branch cooperation are coming under heedless assault. To illustrate the problem, this article revisits four critical episodes that have involved destabilizing and antidemocratic initiatives, each undertaken by a branch of the national government while in the control of the current, very conservative generation of Republican party leadership: the Iran-Contra affair, the government shutdown of 1995, the impeachment of President Clinton, and the Senate stonewalling of President Clinton's judicial nominations. The repeated willingness of the Republican Party's most conservative elements to engage in such initiatives is not rooted in political conservatism per-se. It reflects rather the narrowing social and ideological base of the Republican Party, and is consistent with a contempt for democratic pluralism that characterizes the constitutional outlook of leading Republican legal theorists. Unless matters are improved, the United States may otherwise be headed towards a new political equilibrium that does considerable violence to America's modern practice of democratic legitimacy.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"12 1","pages":"503-542"},"PeriodicalIF":0.0,"publicationDate":"2004-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639737","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 text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This paper makes heavy use of foreign authority, including, Australian, British, Canadian, Indian, and New Zealand sources. Additionally, this paper criticizes prior domestic scholarship in this area. This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel. My opening article will appear at: Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822. Professor Aaron-Andrew P. Bruhl response to my opening article will appear at: Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574. My Reply to his response will appear at: Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.
{"title":"Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?","authors":"S. Tillman","doi":"10.2139/ssrn.505822","DOIUrl":"https://doi.org/10.2139/ssrn.505822","url":null,"abstract":"The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This paper makes heavy use of foreign authority, including, Australian, British, Canadian, Indian, and New Zealand sources. Additionally, this paper criticizes prior domestic scholarship in this area. This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel. My opening article will appear at: Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822. Professor Aaron-Andrew P. Bruhl response to my opening article will appear at: Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574. My Reply to his response will appear at: Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"16 1","pages":"331-348"},"PeriodicalIF":0.0,"publicationDate":"2004-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.505822","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67752957","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}
Judicial review of a federal administrative agency's statutory or regulatory interpretation ordinarily proceeds under the highly deferential framework announced in the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Withholding an independent judicial interpretation of a statute or regulation in deference to an agency's views, however, poses unique problems when the agency has a self-interested stake in its interpretation - as, for example, when the agency's interpretation affects its regulatory jurisdiction or yields a financial benefit to the agency. A review of several cases in which courts have deferred, or refused to defer, to interpretations of law that implicated the self-interest of the issuing agency shows that the courts have not enunciated a consistent rationale to explain their divergent results. The article concludes that extending the Chevron deference principle to self-interested agency interpretations of law conflicts with settled norms of due process, and proposes an alternative analytical framework for judicial review of such interpretations.
对联邦行政机构的法定或监管解释的司法审查通常在具有里程碑意义的雪佛龙美国公司诉自然资源保护委员会案(467 U.S. 837(1984))中宣布的高度尊重的框架下进行。然而，当该机构在其解释中具有自身利益利益时——例如，当该机构的解释影响其监管管辖权或为该机构带来经济利益时——拒绝对法规或法规作出独立的司法解释，就会产生独特的问题。对法院推迟或拒绝推迟对涉及发布机构自身利益的法律解释的几个案件的审查表明，法院没有阐明一致的理由来解释其不同的结果。本文的结论是，将雪佛龙服从原则扩展到自利机构对法律的解释与既定的正当程序规范相冲突，并提出了对此类解释的司法审查的另一种分析框架。
{"title":"Chevron Deference and Agency Self-Interest","authors":"Timothy K. Armstrong","doi":"10.31219/osf.io/25qpy","DOIUrl":"https://doi.org/10.31219/osf.io/25qpy","url":null,"abstract":"Judicial review of a federal administrative agency's statutory or regulatory interpretation ordinarily proceeds under the highly deferential framework announced in the landmark case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Withholding an independent judicial interpretation of a statute or regulation in deference to an agency's views, however, poses unique problems when the agency has a self-interested stake in its interpretation - as, for example, when the agency's interpretation affects its regulatory jurisdiction or yields a financial benefit to the agency. A review of several cases in which courts have deferred, or refused to defer, to interpretations of law that implicated the self-interest of the issuing agency shows that the courts have not enunciated a consistent rationale to explain their divergent results. The article concludes that extending the Chevron deference principle to self-interested agency interpretations of law conflicts with settled norms of due process, and proposes an alternative analytical framework for judicial review of such interpretations.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"13 1","pages":"203-288"},"PeriodicalIF":0.0,"publicationDate":"2004-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69635885","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":"Bargaining or biology? The history and future of paternity law and parental status.","authors":"Katharine K Baker","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"14 1","pages":"1-69"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25208486","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":"Accommodation at work: lessons from the Americans with Disabilities Act and possibilities for alleviating the American worker time crunch.","authors":"Stephen F Befort","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"13 3","pages":"615-36"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24975959","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 debate about public and private education raises important questions about the role of the state in promoting a certain kind of person and citizen, which has implications for liberal and democratic theory, the respective rights of children and parents, and the nature of religious freedom in a democratic society. In addressing these issues, Professor Shiffrin argues that the debate about compulsory public education has been oversimplified. Too often the argument has been that compulsory public education is always unconstitutional or, less frequently, that it is always constitutional. Similarly, much of the debate about vouchers contends that they are always good or always bad or that vouchers to religious schools either always do or always do not violate the Establishment Clause. Shiffrin maintains that the interests of children and the state in public education have been underestimated and that government should in many circumstances be able to compel adolescents of high school age, but not pre-adolescents, to attend public schools. No U.S. government is likely to engage in such compulsion, and there are good political reasons not to do so, but analysis of the case for compulsory public education leads to support of a strong presumption against vouchers, at least at the high school level. This presumption, however, is more difficult to defend when public schools are relatively homogeneous or are providing inadequate education to poor children. Even if vouchers could generally be supported, vouchers to religious schools raise serious concerns about the appropriate principles of church-state relations in the American constitutional order. But these concerns might be overcome in certain circumstances. In short, compulsory public education should sometimes be regarded as constitutional and sometimes not; vouchers are generally to be resisted, but sometimes not; and vouchers to religious schools should ordinarily be considered unconstitutional, but sometimes not.
{"title":"The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers","authors":"Steven H. Shiffrin","doi":"10.2139/SSRN.480664","DOIUrl":"https://doi.org/10.2139/SSRN.480664","url":null,"abstract":"The debate about public and private education raises important questions about the role of the state in promoting a certain kind of person and citizen, which has implications for liberal and democratic theory, the respective rights of children and parents, and the nature of religious freedom in a democratic society. In addressing these issues, Professor Shiffrin argues that the debate about compulsory public education has been oversimplified. Too often the argument has been that compulsory public education is always unconstitutional or, less frequently, that it is always constitutional. Similarly, much of the debate about vouchers contends that they are always good or always bad or that vouchers to religious schools either always do or always do not violate the Establishment Clause. Shiffrin maintains that the interests of children and the state in public education have been underestimated and that government should in many circumstances be able to compel adolescents of high school age, but not pre-adolescents, to attend public schools. No U.S. government is likely to engage in such compulsion, and there are good political reasons not to do so, but analysis of the case for compulsory public education leads to support of a strong presumption against vouchers, at least at the high school level. This presumption, however, is more difficult to defend when public schools are relatively homogeneous or are providing inadequate education to poor children. Even if vouchers could generally be supported, vouchers to religious schools raise serious concerns about the appropriate principles of church-state relations in the American constitutional order. But these concerns might be overcome in certain circumstances. In short, compulsory public education should sometimes be regarded as constitutional and sometimes not; vouchers are generally to be resisted, but sometimes not; and vouchers to religious schools should ordinarily be considered unconstitutional, but sometimes not.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"11 1","pages":"503-552"},"PeriodicalIF":0.0,"publicationDate":"2003-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746547","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}
After an unsuccessful attempt in 1982, the California electorate removed three of the Justices of the Supreme Court of California in the 1986 elections because they were soft on crime. This article studies the voting patterns of the three justices who were on the California Supreme Court before and after the elections, revealing three distinct judicial and political strategies.
{"title":"Judicial Reaction to Change: The California Supreme Court around the 1986 Elections","authors":"Nicholas L. Georgakopoulos","doi":"10.2139/SSRN.466221","DOIUrl":"https://doi.org/10.2139/SSRN.466221","url":null,"abstract":"After an unsuccessful attempt in 1982, the California electorate removed three of the Justices of the Supreme Court of California in the 1986 elections because they were soft on crime. This article studies the voting patterns of the three justices who were on the California Supreme Court before and after the elections, revealing three distinct judicial and political strategies.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"13 1","pages":"405-430"},"PeriodicalIF":0.0,"publicationDate":"2003-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67741928","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}
Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as "exempt organizations" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these distinct perspectives on civic health suggest different, sometimes incompatible, recommendations for civic life and, by implication, for how voluntary associations should be regulated. Because voluntary associations are central to most prescriptions for revitalizing civic health, the analysis reviews the empirical data bearing on the dynamics of associations and the impact participation has on association members. I then evaluate the expectations expressed by advocates of civic renewal in light of these empirical findings. I conclude that increased participation in voluntary organizations has the potential to further the civic goals of the first (cooperation) and third (equality and representative institutions) perspectives. In contrast, based upon the empirical evidence reviewed, I question whether it is reasonable or useful for civic renewal advocates to portray associational life as an important potential source of increased public spiritedness (the fourth perspective) or the attributes necessary for reflective self-governance (the second perspective). The alternative is for those who emphasize the latter two aspects of civic health to recognize that certain substantive civic values must be nurtured in areas outside of the formal institutions of civic life rather than expected as the automatic or likely byproduct of a robust civil society. The heart of the study takes these findings and uses them to evaluate the existing regulation of voluntary associations by the Internal Revenue Code (the predominant source of the federal regulation of non-profits). In particular, I seek to clarify the ways in which existing tax rules further or undermine one or more of the civic goals elaborated in the first part. This part of the analysis also makes specific recommendations for regulatory reform to enhance the usefulness of non-profits for furthering the goals of each of the four civic renewal understandings.
{"title":"Civic Renewal and the Regulation of Non-profits","authors":"M. Galston","doi":"10.2139/SSRN.445500","DOIUrl":"https://doi.org/10.2139/SSRN.445500","url":null,"abstract":"Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as \"exempt organizations\" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these distinct perspectives on civic health suggest different, sometimes incompatible, recommendations for civic life and, by implication, for how voluntary associations should be regulated. Because voluntary associations are central to most prescriptions for revitalizing civic health, the analysis reviews the empirical data bearing on the dynamics of associations and the impact participation has on association members. I then evaluate the expectations expressed by advocates of civic renewal in light of these empirical findings. I conclude that increased participation in voluntary organizations has the potential to further the civic goals of the first (cooperation) and third (equality and representative institutions) perspectives. In contrast, based upon the empirical evidence reviewed, I question whether it is reasonable or useful for civic renewal advocates to portray associational life as an important potential source of increased public spiritedness (the fourth perspective) or the attributes necessary for reflective self-governance (the second perspective). The alternative is for those who emphasize the latter two aspects of civic health to recognize that certain substantive civic values must be nurtured in areas outside of the formal institutions of civic life rather than expected as the automatic or likely byproduct of a robust civil society. The heart of the study takes these findings and uses them to evaluate the existing regulation of voluntary associations by the Internal Revenue Code (the predominant source of the federal regulation of non-profits). In particular, I seek to clarify the ways in which existing tax rules further or undermine one or more of the civic goals elaborated in the first part. This part of the analysis also makes specific recommendations for regulatory reform to enhance the usefulness of non-profits for furthering the goals of each of the four civic renewal understandings.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"13 1","pages":"289-404"},"PeriodicalIF":0.0,"publicationDate":"2003-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789499","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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