In academia, journals serve as a proxy for quality, where prestigious journals are presumed to publish articles of higher quality than their less prestigious counterparts. Concerns over editorial bias in selecting articles, however, challenge this claim. This article develops a framework for evaluating this bias in legal academia, examining over 25,000 articles from nearly 200 general interest law reviews. Examining published articles in law reviews — the dominant venue for scholarship — and subsequent citations to these articles, we find that, with few exceptions, law reviews publish more articles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently than publications of outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality.
{"title":"Editorial Bias in Legal Academia","authors":"Albert H. Yoon","doi":"10.1093/JLA/LAT005","DOIUrl":"https://doi.org/10.1093/JLA/LAT005","url":null,"abstract":"In academia, journals serve as a proxy for quality, where prestigious journals are presumed to publish articles of higher quality than their less prestigious counterparts. Concerns over editorial bias in selecting articles, however, challenge this claim. This article develops a framework for evaluating this bias in legal academia, examining over 25,000 articles from nearly 200 general interest law reviews. Examining published articles in law reviews — the dominant venue for scholarship — and subsequent citations to these articles, we find that, with few exceptions, law reviews publish more articles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently than publications of outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"5 1","pages":"309-338"},"PeriodicalIF":2.2,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87193136","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}
Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal with discretionary benefits supplied by the very same government. A related reason is more fundamental and inspirational: constitutional claimants are almost always allowed to exit the relevant institution and enter another. This possibility of sorting across multiple institutions generates unconstitutional conditions questions by making nearly every government imposition at least nominally optional. Moreover, exit and sorting dynamics operate in contexts far beyond people physically migrating to new locations. The full implications of exit and sorting have been neglected by constitutional theorists, who tend to assume a static population within one political community or to focus on crude arguments about “voting with your feet.” This article is an initial effort to check these tendencies, and to move exit and sorting toward the center of constitutional law and theory.
{"title":"Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory","authors":"Adam B. Cox, Adam M. Samaha","doi":"10.1093/JLA/LAS018","DOIUrl":"https://doi.org/10.1093/JLA/LAS018","url":null,"abstract":"Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal with discretionary benefits supplied by the very same government. A related reason is more fundamental and inspirational: constitutional claimants are almost always allowed to exit the relevant institution and enter another. This possibility of sorting across multiple institutions generates unconstitutional conditions questions by making nearly every government imposition at least nominally optional. Moreover, exit and sorting dynamics operate in contexts far beyond people physically migrating to new locations. The full implications of exit and sorting have been neglected by constitutional theorists, who tend to assume a static population within one political community or to focus on crude arguments about “voting with your feet.” This article is an initial effort to check these tendencies, and to move exit and sorting toward the center of constitutional law and theory.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"5 1","pages":"61-106"},"PeriodicalIF":2.2,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81164913","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}
Rights to do grave wrong arise whenever the law permits conduct that ordinary morality severely reproaches. We examine one good reason, ignored by legal thought, why such rights develop: because their undoubted dangers are mitigated by extra-juridical encumbrances on their irresponsible exercise, establishing a normatively acceptable equilibrium. This complex of rights-cum-restraints amounts to an implicit regulatory strategy, applicable far afield, presenting at once distinct perils to moral order and an efficient solution to certain regulatory predicaments. It should sometimes give pause to extending law’s reach into certain corners, at least, of private ordering. To enforce the relevant restraints, our law tacitly relies on social stigmatization, yet does so without clear appreciation of when such reliance becomes problematic. It is especially so where: (i) the legal right to which responsibilities are linked arises from an essential task or position authorizing one to cause grave harm; (ii) the scope of the right would hence be very limited, but for our confidence in assurances that concomitant moral duties will be honored; and (iii) the nonjuridical supports for fulfillment of these duties are uncertain, apparent only via arduous empirical inquiry, or simply defy description in a satisfactory modern idiom.
{"title":"Rights to do Grave Wrong","authors":"M. Osiel","doi":"10.1093/JLA/LAS015","DOIUrl":"https://doi.org/10.1093/JLA/LAS015","url":null,"abstract":"Rights to do grave wrong arise whenever the law permits conduct that ordinary morality severely reproaches. We examine one good reason, ignored by legal thought, why such rights develop: because their undoubted dangers are mitigated by extra-juridical encumbrances on their irresponsible exercise, establishing a normatively acceptable equilibrium. This complex of rights-cum-restraints amounts to an implicit regulatory strategy, applicable far afield, presenting at once distinct perils to moral order and an efficient solution to certain regulatory predicaments. It should sometimes give pause to extending law’s reach into certain corners, at least, of private ordering. To enforce the relevant restraints, our law tacitly relies on social stigmatization, yet does so without clear appreciation of when such reliance becomes problematic. It is especially so where: (i) the legal right to which responsibilities are linked arises from an essential task or position authorizing one to cause grave harm; (ii) the scope of the right would hence be very limited, but for our confidence in assurances that concomitant moral duties will be honored; and (iii) the nonjuridical supports for fulfillment of these duties are uncertain, apparent only via arduous empirical inquiry, or simply defy description in a satisfactory modern idiom.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"18 1","pages":"107-219"},"PeriodicalIF":2.2,"publicationDate":"2013-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81764225","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}
R. Hinkle, Andrew D. Martin, J. D. Shaub, Emerson H. Tiller
Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.
实证政治理论(Positive Political Theory, PPT)在大量关于司法等级制度和小组效应的实证研究的支持下，表明法官参与对意见内容的战略性使用，以促进决策法院所偏好的政策结果。在本研究中，我们运用语言学理论在微观层面研究意见内容的策略性使用——调查法官在意见中做出的具体词汇选择是否与PPT中关于司法等级的竞争性制度故事相一致。特别地，我们检查了法官对被称为“模棱两可”的语言操作的实用主义使用——用于扩大特定命题的真理集的语言，使其不那么确定，因此不那么可信——以及“强化”——限制命题的可能真值的语言，使陈述更容易被证伪。我们的主要假设是，在意识形态上与大多数监督巡回法官不一致的地区法院法官在其法律推理中使用更多的模棱两可的语言，以使这些裁决不被推翻。我们通过分析1998年至2001年联邦地区法院的宪法刑事诉讼程序、种族和性别歧视以及环境意见，对该理论进行了实证检验。我们的研究结果表明，随着地区法院法官和监督巡回法院法官之间意识形态距离的增加，某些类型语言的使用在统计上显着增加。
{"title":"A Positive Theory And Empirical Analysis Of Strategic Word Choice In District Court Opinions","authors":"R. Hinkle, Andrew D. Martin, J. D. Shaub, Emerson H. Tiller","doi":"10.1093/JLA/LAS014","DOIUrl":"https://doi.org/10.1093/JLA/LAS014","url":null,"abstract":"Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"44 1","pages":"407-444"},"PeriodicalIF":2.2,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77640939","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}
Japanese judges are least likely to hang a defendant for murder if they graduated from a high-status university, passed the bar-exam-equivalent quickly, or enjoy a fast-track career within the courts. “Panel composition effects” and other measures of collegiality seem unrelated to sentencing patterns. To explore the effect of judicial panel composition beyond the more-often-studied world of politically prominent cases, I examine its impact on criminal sentencing. More specifically, I examine the possible determinants of the propensity of Japanese judges to sentence guilty defendants to death. Toward this end, I collect all opinions published since 1980 in murder cases—about 200 cases. Because each case involves a three-judge panel but some judges write multiple opinions, these cases involve about 440 judges. Within this group, the most elite judges are least likely to impose the death penalty. Measures of possible collegiality—how long judges have served on a court together, graduation from a common university, closeness in age—have no observable impact. The presence of potential “whistle-blower” judges also appears not to matter.
{"title":"Who Hangs Whom for What? The Death Penalty in Japan","authors":"J. Ramseyer","doi":"10.1093/JLA/LAS013","DOIUrl":"https://doi.org/10.1093/JLA/LAS013","url":null,"abstract":"Japanese judges are least likely to hang a defendant for murder if they graduated from a high-status university, passed the bar-exam-equivalent quickly, or enjoy a fast-track career within the courts. “Panel composition effects” and other measures of collegiality seem unrelated to sentencing patterns. To explore the effect of judicial panel composition beyond the more-often-studied world of politically prominent cases, I examine its impact on criminal sentencing. More specifically, I examine the possible determinants of the propensity of Japanese judges to sentence guilty defendants to death. Toward this end, I collect all opinions published since 1980 in murder cases—about 200 cases. Because each case involves a three-judge panel but some judges write multiple opinions, these cases involve about 440 judges. Within this group, the most elite judges are least likely to impose the death penalty. Measures of possible collegiality—how long judges have served on a court together, graduation from a common university, closeness in age—have no observable impact. The presence of potential “whistle-blower” judges also appears not to matter.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"43 1","pages":"365-405"},"PeriodicalIF":2.2,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80923099","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}
The presence of “peer effects”—that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel—is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading theories of peer effects hold for the speed of judicial decision-making. One set of theories asserts that peer effects result from preference-revealing interactions among judges, such as deliberation or negotiation. These interactions are potentially time-consuming. Other theories, such as whistleblowing and dissent aversion, claim that peer effects result from a judge’s response to existing knowledge of her colleagues’ preferences. These responses are potentially instantaneous. A simple prediction is that if bargaining or deliberation, rather than whistleblowing or dissent aversion, causes peer effects, ideologically mixed panels should be slower to render decisions than ideologically homogenous panels. The article tests this prediction against a sample of administrative law decisions that have previously been shown to exhibit strong peer effects. The article’s main estimates show that the ideological diversity of a panel does not correlate with the speed of decision-making. This finding suggests that preference-revealing interactions do not cause judicial peer effects. But, the results show that law, specifically deference standards, influence the speed of decision-making. A court is substantially quicker when validating rather than invalidating an agency decision, regardless of the panel’s affinity for the substance of the agency decision.
{"title":"The Law's Delay: A Test of the Mechanisms of Judicial Peer Effects","authors":"T. Miles","doi":"10.1093/JLA/LAS017","DOIUrl":"https://doi.org/10.1093/JLA/LAS017","url":null,"abstract":"The presence of “peer effects”—that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel—is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading theories of peer effects hold for the speed of judicial decision-making. One set of theories asserts that peer effects result from preference-revealing interactions among judges, such as deliberation or negotiation. These interactions are potentially time-consuming. Other theories, such as whistleblowing and dissent aversion, claim that peer effects result from a judge’s response to existing knowledge of her colleagues’ preferences. These responses are potentially instantaneous. A simple prediction is that if bargaining or deliberation, rather than whistleblowing or dissent aversion, causes peer effects, ideologically mixed panels should be slower to render decisions than ideologically homogenous panels. The article tests this prediction against a sample of administrative law decisions that have previously been shown to exhibit strong peer effects. The article’s main estimates show that the ideological diversity of a panel does not correlate with the speed of decision-making. This finding suggests that preference-revealing interactions do not cause judicial peer effects. But, the results show that law, specifically deference standards, influence the speed of decision-making. A court is substantially quicker when validating rather than invalidating an agency decision, regardless of the panel’s affinity for the substance of the agency decision.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"2 1","pages":"301-327"},"PeriodicalIF":2.2,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79648474","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}
Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this article, we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We argue that several features ordinarily associated with legal order—such as generality, impersonality, open process, and stability—can be explained by the incentive and coordination problems facing collective punishment.
{"title":"What Is Law? A Coordination Model of the Characteristics of Legal Order","authors":"Gillian K. Hadfield, Barry R. Weingast","doi":"10.1093/JLA/LAS008","DOIUrl":"https://doi.org/10.1093/JLA/LAS008","url":null,"abstract":"Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this article, we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We argue that several features ordinarily associated with legal order—such as generality, impersonality, open process, and stability—can be explained by the incentive and coordination problems facing collective punishment.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"5 1","pages":"471-514"},"PeriodicalIF":2.2,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75316385","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}
Contrary to a traditional view, constitutions are rarely written in calm and reflective moments. Rather, because they tend to bewritten in period of social unrest, constituent moments induce strong emotions and, frequently, violence. The paper examines two such cases: the Federal Convention of 1787 and the French Assemblee Constituante of 1789–1791. These involved state violence as well as popular violence. In the USA, the unequal political representation of the backcountry explains both the violent events leading to the Convention and its outcome. In France, the dismissal of the King’sMinister Necker explains the subsequent urban and rural violence, and ultimately the abolition of feudalism and the fall of the monarchy. L’anarchie est un passage effrayant, mais necessaire, et c’est le seul moment ou l’on peut arriver a un nouvel ordre des choses. Ce n’est pas dans des temps de calme qu’on prendrait des mesures uniformes. (“Anarchy is a frightening but necessary passage, and the only moment when one can establish a new order of things. It is not in calm times that one can adopt uniform measures”.) (Comte de Clermont-Tonnerre, AR 9, 461)
{"title":"Constitution-Making and Violence","authors":"J. Elster","doi":"10.1093/JLA/LAS009","DOIUrl":"https://doi.org/10.1093/JLA/LAS009","url":null,"abstract":"Contrary to a traditional view, constitutions are rarely written in calm and reflective moments. Rather, because they tend to bewritten in period of social unrest, constituent moments induce strong emotions and, frequently, violence. The paper examines two such cases: the Federal Convention of 1787 and the French Assemblee Constituante of 1789–1791. These involved state violence as well as popular violence. In the USA, the unequal political representation of the backcountry explains both the violent events leading to the Convention and its outcome. In France, the dismissal of the King’sMinister Necker explains the subsequent urban and rural violence, and ultimately the abolition of feudalism and the fall of the monarchy. L’anarchie est un passage effrayant, mais necessaire, et c’est le seul moment ou l’on peut arriver a un nouvel ordre des choses. Ce n’est pas dans des temps de calme qu’on prendrait des mesures uniformes. (“Anarchy is a frightening but necessary passage, and the only moment when one can establish a new order of things. It is not in calm times that one can adopt uniform measures”.) (Comte de Clermont-Tonnerre, AR 9, 461)","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"10 1","pages":"7-39"},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79203291","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 both Chrysler and General Motors, the government was, among other things, a large creditor exercising control over its debtor and pushing for a speedy sale of the assets. Together the two cases capture the issues central to large Chapter 11 cases today. The debate over speedy sales of businesses in Chapter 11 is over. Sales are now the norm in large reorganizations. Instead of asking whether there should be sales in bankruptcy, we need to ask how to police various forms of abuse. Three years after the fact, we can begin to draw some conclusions about the reorganizations of Chrysler and General Motors. The government’s use of the bankruptcy laws to inject tens of billions into two of the country’s largest automobile companies had its intended effect. At the start of 2009, General Motors and Chrysler were bleeding to death. 2 Maintaining either business as a going concern required a massive infusion of capital no one in the private market was willing to provide. As a result of the government’s intervention, the basic structure of the American automobile industry was preserved.
{"title":"Lessons from the Automobile Reorganizations","authors":"D. Baird","doi":"10.1093/JLA/LAS001","DOIUrl":"https://doi.org/10.1093/JLA/LAS001","url":null,"abstract":"In both Chrysler and General Motors, the government was, among other things, a large creditor exercising control over its debtor and pushing for a speedy sale of the assets. Together the two cases capture the issues central to large Chapter 11 cases today. The debate over speedy sales of businesses in Chapter 11 is over. Sales are now the norm in large reorganizations. Instead of asking whether there should be sales in bankruptcy, we need to ask how to police various forms of abuse. Three years after the fact, we can begin to draw some conclusions about the reorganizations of Chrysler and General Motors. The government’s use of the bankruptcy laws to inject tens of billions into two of the country’s largest automobile companies had its intended effect. At the start of 2009, General Motors and Chrysler were bleeding to death. 2 Maintaining either business as a going concern required a massive infusion of capital no one in the private market was willing to provide. As a result of the government’s intervention, the basic structure of the American automobile industry was preserved.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"104 1","pages":"271-300"},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80850253","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 article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.
{"title":"Precautionary Principles in Constitutional Law","authors":"Adrian Vermeule","doi":"10.1093/JLA/LAS003","DOIUrl":"https://doi.org/10.1093/JLA/LAS003","url":null,"abstract":"This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"46 1","pages":"181-222"},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81768668","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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