Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter. To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.
{"title":"Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation","authors":"W. Farnsworth, Dustin F. Guzior, A. Malani","doi":"10.1093/JLA/2.1.257","DOIUrl":"https://doi.org/10.1093/JLA/2.1.257","url":null,"abstract":"Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter. To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85488385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading fi gure in the law-and-economics of contracts, has now published a counter-article, “ Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports to be a criticism of mine, in fact most of his points are directed to an Imaginary Article he has constructed out of thin air, consisting of statements I did not make and positions I did not imply. Accordingly, a major reason for this response is to set the record straight by comparing what Goldberg says that I said and implied with what I actually said and implied. 2 In addition, those portions of Goldberg’s article that addressed what I did write are for the most part either based on a fallacious rhetorical device, simply incorrect, or both. Therefore, a second reason for this response is to show where and why Goldberg’s criticisms go astray. Finally, in one instance Goldberg has identifi ed an erroneous sentence in “Impossibility, Impracticability, and Frustration,” and I also write to acknowledge that error. 1 . THE SHARED-ASSUMPTIO N TEST One thesis of “Impossibility, Impracticability, and Frustration” was that judicial relief from a contract normally should be granted if (1) the contracting parties shared a tacit assumption that the occurrence or nonoccurrence of some circumstance during the life of the contract was certain rather than problematic; (2) the assumption was incorrect; and (3) the incorrectness of the assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. I called this the shared-assumption test.
{"title":"Impossibility, Impracticability, and Frustration—Professor Goldberg Constructs an Imaginary Article, Attributes it to Me, and then Criticizes it","authors":"M. Eisenberg","doi":"10.1093/JLA/2.1.383","DOIUrl":"https://doi.org/10.1093/JLA/2.1.383","url":null,"abstract":"Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading fi gure in the law-and-economics of contracts, has now published a counter-article, “ Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports to be a criticism of mine, in fact most of his points are directed to an Imaginary Article he has constructed out of thin air, consisting of statements I did not make and positions I did not imply. Accordingly, a major reason for this response is to set the record straight by comparing what Goldberg says that I said and implied with what I actually said and implied. 2 In addition, those portions of Goldberg’s article that addressed what I did write are for the most part either based on a fallacious rhetorical device, simply incorrect, or both. Therefore, a second reason for this response is to show where and why Goldberg’s criticisms go astray. Finally, in one instance Goldberg has identifi ed an erroneous sentence in “Impossibility, Impracticability, and Frustration,” and I also write to acknowledge that error. 1 . THE SHARED-ASSUMPTIO N TEST One thesis of “Impossibility, Impracticability, and Frustration” was that judicial relief from a contract normally should be granted if (1) the contracting parties shared a tacit assumption that the occurrence or nonoccurrence of some circumstance during the life of the contract was certain rather than problematic; (2) the assumption was incorrect; and (3) the incorrectness of the assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. I called this the shared-assumption test.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76209805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations. This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately. I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible. I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.
{"title":"The Dispensable Lives of Soldiers","authors":"Gabriella Blum","doi":"10.1093/JLA/2.1.115","DOIUrl":"https://doi.org/10.1093/JLA/2.1.115","url":null,"abstract":"Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations. This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately. I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible. I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2010-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85936070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most Americans invest through mutual funds. An analysis of laws governing mutual funds shows that U.S. mutual funds are taxed less favorably and regulated more extensively than direct investments or other collective investments, including alternatives available only to the wealthy. The structure of U.S. regulation — of 70-year-old proscriptive bright-line rules subject to SEC exemptions — makes success of U.S. mutual funds dependent on the resources, responsiveness, and flexibility of the SEC. The legal framework for mutual funds in the E.U. is generally as or more restrictive and inflexible than U.S. law, but competitive pressures force European supervisors to be more flexible in adopting and implementing regulations, and E.U. regulators have greater resources and are more responsive than the SEC. The paper discusses mutual fund legal reforms, including proposals to eliminate unjustified disparities in the treatment of mutual funds and their substitutes and to improve regulatory flexibility and resources.
{"title":"Reforming the Taxation and Regulation of Mutual Funds: A Comparative Legal and Economic Analysis","authors":"I. J. C. Coates","doi":"10.1093/JLA/1.2.591","DOIUrl":"https://doi.org/10.1093/JLA/1.2.591","url":null,"abstract":"Most Americans invest through mutual funds. An analysis of laws governing mutual funds shows that U.S. mutual funds are taxed less favorably and regulated more extensively than direct investments or other collective investments, including alternatives available only to the wealthy. The structure of U.S. regulation — of 70-year-old proscriptive bright-line rules subject to SEC exemptions — makes success of U.S. mutual funds dependent on the resources, responsiveness, and flexibility of the SEC. The legal framework for mutual funds in the E.U. is generally as or more restrictive and inflexible than U.S. law, but competitive pressures force European supervisors to be more flexible in adopting and implementing regulations, and E.U. regulators have greater resources and are more responsive than the SEC. The paper discusses mutual fund legal reforms, including proposals to eliminate unjustified disparities in the treatment of mutual funds and their substitutes and to improve regulatory flexibility and resources.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85777184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In nine experiments — one a questionnaire given to Israeli judges, the rest on the World Wide Web — we examined the effect of probability of detection of an offense on judgments of punishment. When cases differing in probability were separated, we found almost no evidence for attention to probability (as found previously by others). When cases were presented next to each other, however, a substantial minority of subjects took probability into account. Attention to probability was increased in one study by a probe manipulation concerning deterrent effects. We found inconsistent effects of identifying the perpetrator, or of asking subjects to consider policies versus individuals. Some subjects thought that it was unfair to consider probability, but more subjects thought that probability was relevant because of the need for deterrence. We suggest that the failure to consider probability is to some extent an example of the “isolation effect,” in which people do not think much about secondary effects, rather than entirely a result of ideological commitment to a “just desserts” view of punishment. “To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.” (Bentham, 1948/1843, Ch. 14, section XVIII).
{"title":"The Role of Probability of Detection in Judgments of Punishment","authors":"J. Baron, Ilana Ritov","doi":"10.1093/JLA/1.2.553","DOIUrl":"https://doi.org/10.1093/JLA/1.2.553","url":null,"abstract":"In nine experiments — one a questionnaire given to Israeli judges, the rest on the World Wide Web — we examined the effect of probability of detection of an offense on judgments of punishment. When cases differing in probability were separated, we found almost no evidence for attention to probability (as found previously by others). When cases were presented next to each other, however, a substantial minority of subjects took probability into account. Attention to probability was increased in one study by a probe manipulation concerning deterrent effects. We found inconsistent effects of identifying the perpetrator, or of asking subjects to consider policies versus individuals. Some subjects thought that it was unfair to consider probability, but more subjects thought that probability was relevant because of the need for deterrence. We suggest that the failure to consider probability is to some extent an example of the “isolation effect,” in which people do not think much about secondary effects, rather than entirely a result of ideological commitment to a “just desserts” view of punishment. “To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.” (Bentham, 1948/1843, Ch. 14, section XVIII).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74070259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.
{"title":"Social Norms in the Courts of Ancient Athens","authors":"Adriaan Lanni","doi":"10.1093/JLA/1.2.691","DOIUrl":"https://doi.org/10.1093/JLA/1.2.691","url":null,"abstract":"Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78254320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).
{"title":"Rational Judicial Behavior: A Statistical Study","authors":"W. Landes, R. Posner","doi":"10.1093/JLA/1.2.775","DOIUrl":"https://doi.org/10.1093/JLA/1.2.775","url":null,"abstract":"This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideological classifications of votes (e.g., liberal or conservative) are dependent variables in our empirical analysis and the independent variables include the party of the appointing President, the relative number of Republican and Democratic Senators at the time of the judge‘s confirmation, the appointment year, characteristics of the judge (e.g., gender, race and prior experience), and the ideological make-up of the judges on the court in which the judge sits as measured by the relative number of judges appointed by Republican and Democratic Presidents. We have a number of interesting results, including how a judge‘s voting‘s is affected by the voting of the other judges he serves with. We find a political-polarization effect among Justices appointed by Democratic but not by Republican Presidents; that is, the fewer the judges appointed by Democratic Presidents, the more liberally they vote. With regard to court of appeals judges, we find a conformity effect: if the number of judges appointed by Republican Presidents increases (decreases) relative to the number appointed by Democratic Presidents, all judges in the circuit tend to vote more conservatively (more liberally).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86094512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.
{"title":"The Prisoners’ (Plea Bargain) Dilemma","authors":"O. Bar‐Gill, O. Ben‐Shahar","doi":"10.1093/JLA/1.2.737","DOIUrl":"https://doi.org/10.1093/JLA/1.2.737","url":null,"abstract":"How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91364414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.
据爱德华·科克爵士(Sir Edward Coke)报道，博纳姆案(1610)通常被视为立法司法审查的早期案例。律师们，尤其是美国的律师们，已经将其作为允许法官推翻违宪法规的普通法先例。本文利用来自英国和大陆法律著作的当代证据，认为博纳姆案实际上建立在当时普遍接受的自然法原则之上，而这些原则没有包括现代意义上的司法审查。这个论点建立在四点基础之上:第一，科克接受自然法则的存在，并将其运用到自己的作品中;第二，伯纳姆案的事实自然适合于将自然法应用于议会行为;第三，按照当时的理解，自然法不允许在司法上宣告成文法无效;第四，其他当代证据支持对可口可乐在博纳姆案中的陈述的更克制的理解。因此，在当时的背景下，这一案件与议会至上是相容的。然而，它很好地说明了自然法则在实际诉讼中的一种应用方式。
{"title":"Bonham's Case, Judicial Review, and the Law of Nature","authors":"R. Helmholz","doi":"10.4159/JLA.V1I1.5","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.5","url":null,"abstract":"Bonham's Case (1610) as reported by Sir Edward Coke has often been regarded as an early instance of judicial review of legislation. Lawyers, particularly in the United States, have taken it as a common law precedent for permitting judges to strike down unconstitutional statutes. Using contemporary evidence from English and Continental legal works, this article contends that Bonham's Case actually rested upon then commonly accepted principles of the law of nature, and that those principles stopped short of embracing judicial review in the modern sense. The argument depends on establishing four points: first, that Coke accepted the existence of natural law and used it in his own writings; second, that the facts of Bonham's Case lent themselves naturally to application of the law of nature to a parliamentary act; third, that as understood at the time, natural law did not permit judicial invalidation of statutes; and fourth, that other contemporary evidence supports this more restrained understanding of Coke's statements in Bonham's Case. In its contemporary setting, the case was therefore compatible with Parliamentary supremacy. It well illustrates, however, one way in which the law of nature was applied in actual litigation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88920319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.
{"title":"Equality in Criminal Law: The Two Divergent Western Roads","authors":"James Q. Whitman","doi":"10.4159/JLA.V1I1.8","DOIUrl":"https://doi.org/10.4159/JLA.V1I1.8","url":null,"abstract":"Every western society embraces the ideal of equality before the criminal law. However, as this Article observes, that ideal is understood differently in the United States and Continental Europe. American law generally demands that all citizens face an equal threat of punishment, while continental European law generally demands that all citizens face an equal threat of investigation and prosecution. This contrast raises a sharp normative challenge: Is it better to think of equality before the criminal law as pre-conviction equality or post-conviction equality? The Article makes the case that pre-conviction of the Continental kind is normatively superior. It then asks why American law has opted for what seems a normatively inferior solution, identifying a variety of factors in American culture and the common law tradition that have encouraged the belief that true equality lies in the equal threat of punishment rather than in the equal threat of prosecution.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79486065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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