11 Cornell Journal of Law and Public Policy 553 (Summer 2002)Article is based on oral remarks at the April 2002 conference of the Cornell Journal of Law and Public Policy, a symposium on Children and Education.Article is a direct comment on Steven Shiffrin's paper, "The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers."
{"title":"School Vouchers and the Constitution - Permissible, Impermissible, or Required?","authors":"G. Simson","doi":"10.2139/SSRN.377880","DOIUrl":"https://doi.org/10.2139/SSRN.377880","url":null,"abstract":"11 Cornell Journal of Law and Public Policy 553 (Summer 2002)Article is based on oral remarks at the April 2002 conference of the Cornell Journal of Law and Public Policy, a symposium on Children and Education.Article is a direct comment on Steven Shiffrin's paper, \"The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers.\"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"11 1","pages":"553-576"},"PeriodicalIF":0.0,"publicationDate":"2003-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.377880","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68643190","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}
At the intersection of law and politics, Republicans have continually run red lights, committed hit-and-runs, and otherwise flouted constitutional norms. At least that is what Professor Peter Shane would have us believe. In his provocative paper, Professor Shane argues that over the past two decades Republicans (especially those in Congress) have repeatedly violated separation of powers norms in a manner that evinces contempt for pluralism and the Constitution's separation of powers. Professor Shane essentially makes three points. First, separation of powers norms are increasingly fragile and have been violated as they never have been before, and that their wobbly state is bad for the nation. Second, Republicans are the norm-breakers. Third, they are normbreakers for reasons congenital to the modem Republican Party, a narrow party that is homogeneous, white, dominated by the right-wing, and thus hostile to the Constitution's separation of powers. I disagree with each of these claims. To begin with, we ought not to lament changing interbranch norms. Given the predictable interbranch friction in a system of separated powers, interbranch norms inevitably will change over time. The inescapable creation and destruction of interbranch norms is not a process to be feared or despised. What matters is not merely whether some institution has broken a norm, but whether the norm supposedly violated is one worth preserving. For instance, if there were a norm of rubberstamping treaties, few ought to shed tears if the Senate began to examine treaties more carefully. Hence, the mere fact that interbranch norms might have changed recently is not reason for anyone to fret or panic. Assuming that interbranch norms have been changing lately, it is not obvious that the Republicans deserve all the credit (or blame). In the past, congressional Democrats have taken many of the actions that Professor Shane protests (such as stalling judicial nominees or presenting presidents with all-or-nothing appropriation bills). Nonetheless, they escape his censure because they took these actions while opposing supposedly unpopular presidents. Yet a norm's application cannot depend upon something as mercurial and uncertain as popularity. We will be able to say very little that is sensible and consequential about norms and their violation if we also have to check the Gallup polls of the era. Indeed, it seems unlikely that an interbranch norm exists at all if it does not apply when one or more branches are unpopular and therefore weak. Rather, it would seem that meaningful norms exist only if they apply generally, regardless of whether the application of the norm would cater to public opinion. If Professor Shane truly cherishes these norms, he should direct at least some of his indignation at Democrats in Congress. Finally, contrary to what Professor Shane seems to argue, the Grand Old Party, for all its faults, has no beef with "deliberative legitimacy." Nor is it opposed
{"title":"Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers","authors":"S. Prakash","doi":"10.2139/ssrn.2857483","DOIUrl":"https://doi.org/10.2139/ssrn.2857483","url":null,"abstract":"At the intersection of law and politics, Republicans have continually run red lights, committed hit-and-runs, and otherwise flouted constitutional norms. At least that is what Professor Peter Shane would have us believe. In his provocative paper, Professor Shane argues that over the past two decades Republicans (especially those in Congress) have repeatedly violated separation of powers norms in a manner that evinces contempt for pluralism and the Constitution's separation of powers. Professor Shane essentially makes three points. First, separation of powers norms are increasingly fragile and have been violated as they never have been before, and that their wobbly state is bad for the nation. Second, Republicans are the norm-breakers. Third, they are normbreakers for reasons congenital to the modem Republican Party, a narrow party that is homogeneous, white, dominated by the right-wing, and thus hostile to the Constitution's separation of powers. I disagree with each of these claims. To begin with, we ought not to lament changing interbranch norms. Given the predictable interbranch friction in a system of separated powers, interbranch norms inevitably will change over time. The inescapable creation and destruction of interbranch norms is not a process to be feared or despised. What matters is not merely whether some institution has broken a norm, but whether the norm supposedly violated is one worth preserving. For instance, if there were a norm of rubberstamping treaties, few ought to shed tears if the Senate began to examine treaties more carefully. Hence, the mere fact that interbranch norms might have changed recently is not reason for anyone to fret or panic. Assuming that interbranch norms have been changing lately, it is not obvious that the Republicans deserve all the credit (or blame). In the past, congressional Democrats have taken many of the actions that Professor Shane protests (such as stalling judicial nominees or presenting presidents with all-or-nothing appropriation bills). Nonetheless, they escape his censure because they took these actions while opposing supposedly unpopular presidents. Yet a norm's application cannot depend upon something as mercurial and uncertain as popularity. We will be able to say very little that is sensible and consequential about norms and their violation if we also have to check the Gallup polls of the era. Indeed, it seems unlikely that an interbranch norm exists at all if it does not apply when one or more branches are unpopular and therefore weak. Rather, it would seem that meaningful norms exist only if they apply generally, regardless of whether the application of the norm would cater to public opinion. If Professor Shane truly cherishes these norms, he should direct at least some of his indignation at Democrats in Congress. Finally, contrary to what Professor Shane seems to argue, the Grand Old Party, for all its faults, has no beef with \"deliberative legitimacy.\" Nor is it opposed ","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"12 1","pages":"543-554"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394949","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}
An individual or corporation should be subject to liability when it commits an act that directly harms another. But the effects of a wrongful act can reach beyond the person who is directly harmed, and adversely affect persons far removed from the event. At some point, imposition of liability becomes too tenuous, or remote. In these situations, the "remoteness doctrine" provides a rational limit on tort law. This article first traces the historical development and use of the remoteness doctrine, and then explains how some courts recently have rejected the doctrine in order to impose tort liability on so-called "unpopular" defendants. One example is the state attorneys general tobacco litigation, in which some courts allowed states to assert a new, "independent" cause of action to recover monies allegedly expended on account of direct harm to others, i.e., individual smokers. This dramatically increased the states' chances of winning the lawsuits: the states were not bound by traditional subrogation principles and thus were not faced with certain defenses and legal rules which historically defeated claims by individual smokers. However, a neutral application of the traditional legal principles that support the remoteness doctrine would bar such independent claims by the states. While the state tobacco litigation has been settled, the tension between the remoteness doctrine and some courts' desire to impose liability on unpopular defendants still remains. State officials have indicated their willingness to pursue other "unpopular" industries with similar new legal theories. But the state attorney general cases appear at this point to be unique. When plaintiffs' lawyers have tried to bring cases on behalf of foreign countries, unions, Indian tribes, health insurers and others and have attempted to persuade courts to scrap the remoteness doctrine, they have generally failed. Their very bringing of such cases against tobacco companies empirically demonstrates why the doctrine exists in the first place. Allowing independent claims for indirect economic harms leads to an avalanche of such claims and liability that is totally disproportional to the defendant's alleged wrongful conduct. The toughest question is whether the remoteness doctrine should simply be set aside for some defendants. The basic principle of equal justice under law strongly suggests that it should not be.
{"title":"The Remoteness Doctrine: A Rational Limit on Tort Law","authors":"V. E. Schwartz","doi":"10.2139/SSRN.239545","DOIUrl":"https://doi.org/10.2139/SSRN.239545","url":null,"abstract":"An individual or corporation should be subject to liability when it commits an act that directly harms another. But the effects of a wrongful act can reach beyond the person who is directly harmed, and adversely affect persons far removed from the event. At some point, imposition of liability becomes too tenuous, or remote. In these situations, the \"remoteness doctrine\" provides a rational limit on tort law. This article first traces the historical development and use of the remoteness doctrine, and then explains how some courts recently have rejected the doctrine in order to impose tort liability on so-called \"unpopular\" defendants. One example is the state attorneys general tobacco litigation, in which some courts allowed states to assert a new, \"independent\" cause of action to recover monies allegedly expended on account of direct harm to others, i.e., individual smokers. This dramatically increased the states' chances of winning the lawsuits: the states were not bound by traditional subrogation principles and thus were not faced with certain defenses and legal rules which historically defeated claims by individual smokers. However, a neutral application of the traditional legal principles that support the remoteness doctrine would bar such independent claims by the states. While the state tobacco litigation has been settled, the tension between the remoteness doctrine and some courts' desire to impose liability on unpopular defendants still remains. State officials have indicated their willingness to pursue other \"unpopular\" industries with similar new legal theories. But the state attorney general cases appear at this point to be unique. When plaintiffs' lawyers have tried to bring cases on behalf of foreign countries, unions, Indian tribes, health insurers and others and have attempted to persuade courts to scrap the remoteness doctrine, they have generally failed. Their very bringing of such cases against tobacco companies empirically demonstrates why the doctrine exists in the first place. Allowing independent claims for indirect economic harms leads to an avalanche of such claims and liability that is totally disproportional to the defendant's alleged wrongful conduct. The toughest question is whether the remoteness doctrine should simply be set aside for some defendants. The basic principle of equal justice under law strongly suggests that it should not be.","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"8 1","pages":"421-444"},"PeriodicalIF":0.0,"publicationDate":"2000-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68177698","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":"Hiding behind agency discretion: the Food and Drug Administration's personal use drug importation policy.","authors":"P S Reichertz, M S Friend","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"9 ","pages":"493-521"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21893285","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":"It's only skin deep: FDA regulation of skin care cosmetics claims.","authors":"B A Liang, K M Hartman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"8 2","pages":"249-80"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21841998","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 third wave of federal tort reform: protecting the public or pushing the constitutional envelope?","authors":"P H Apelbaum, S T Ryder","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"8 3","pages":"591-659"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21841999","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":"Legal drugs? Not without legal reform: the impact of drug legalization on employers under current theories of enterprise liability.","authors":"L L Hirschfeld","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"7 3","pages":"757-841"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21692288","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":"Health care reform for the twenty-first century: the need for a federal and state partnership.","authors":"S D Litman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"7 3","pages":"871-919"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21692290","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":"Conference transcript: Socially-Assisted Dying: Media, Money & Meaning.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"7 2","pages":"267-404"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21211709","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":"Revisiting de jure educational segregation: legal barriers to school attendance for children with special health care needs.","authors":"A N Barkoff","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39833,"journal":{"name":"Cornell Journal of Law and Public Policy","volume":"8 1","pages":"135-99"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"21418675","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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