{"title":"The Presumption of Constitutionality","authors":"E. Whelan","doi":"10.2307/1115339","DOIUrl":"https://doi.org/10.2307/1115339","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1115339","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68233313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, many conservatives have come to favor a highly restrictionist approach to immigration policy. But that position is in conflict with their own professed commitment to principles such as free markets, liberty, colorblindness, and enforcing constitutional limits on the power of the federal government. These values ultimately all support a strong presumption in favor of free migration. ********** I. IMMIGRATION AND FREEDOM Let us focus on free markets first. Immigration restrictions are among the the biggest government interventions in the economy. They prevent millions of people from taking jobs, renting homes, and pursuing a wide range of opportunities that they could otherwise have. Economists estimate that if we had free migration throughout the world, we could double world GNP. (1) That is not a gaffe or a mispring; it is a real estimate. Perhaps doubling GNP is overly optimistic. Still, increasing it by, say, 50 percent is a greater effect than virtually any other realistically feasible change in economic policy. (2) The reason why immigration restrictions have such an enormous effect is pretty simple. People become much more productive when they move from countries where they have little or no opportunity to use their talents, to those where they can be more productive. Just crossing from Mexico to the United States makes a person three or four more times more productive than they otherwise would be, even without improving their skills in any way. (3) And the opportunities to improve skills are, for most immigrants, far greater in the U.S. than where they initially came from. There is an enormous amount of wealth that can be created just by cutting back on our immigration restrictions. But it would be a mistake to say that the issue here is primarily economic. It is also, and even more fundamentally, about freedom. When people come to the United States from poor and oppressive societies, they increase their freedom in many ways. Think of refugees fleeing religious or ethnic persecution, women escaping patriarchal societies, or people fleeing massacres such as those perpetrated by ISIS. The ancestors of most modern Americans escaped such oppression during the period when we wisely did not have the kinds of immigration restrictions that we do today. If we had today's immigration policies back then, the ancestors of most of the current US population would never have been allowed to come. Immigration restrictions undermine the freedom of native-born Americans as well as immigrants. Because of our immigration laws, millions of native-born Americans cannot hire the workers they want, associate with the businesses that they choose, nor benefit from the entrepreneurship of immigrants; on average, they tend to be more entrepreneurial than native-born citizens. (4) II. IMMIGRATION AND DISCRIMINATION Current immigration policy is also inimical to the principle of color-blindness in government. In December 2014 President Obama's Departmen
{"title":"Immigration, Freedom, and the Constitution","authors":"I. Somin","doi":"10.2139/SSRN.2968440","DOIUrl":"https://doi.org/10.2139/SSRN.2968440","url":null,"abstract":"In recent years, many conservatives have come to favor a highly restrictionist approach to immigration policy. But that position is in conflict with their own professed commitment to principles such as free markets, liberty, colorblindness, and enforcing constitutional limits on the power of the federal government. These values ultimately all support a strong presumption in favor of free migration. ********** I. IMMIGRATION AND FREEDOM Let us focus on free markets first. Immigration restrictions are among the the biggest government interventions in the economy. They prevent millions of people from taking jobs, renting homes, and pursuing a wide range of opportunities that they could otherwise have. Economists estimate that if we had free migration throughout the world, we could double world GNP. (1) That is not a gaffe or a mispring; it is a real estimate. Perhaps doubling GNP is overly optimistic. Still, increasing it by, say, 50 percent is a greater effect than virtually any other realistically feasible change in economic policy. (2) The reason why immigration restrictions have such an enormous effect is pretty simple. People become much more productive when they move from countries where they have little or no opportunity to use their talents, to those where they can be more productive. Just crossing from Mexico to the United States makes a person three or four more times more productive than they otherwise would be, even without improving their skills in any way. (3) And the opportunities to improve skills are, for most immigrants, far greater in the U.S. than where they initially came from. There is an enormous amount of wealth that can be created just by cutting back on our immigration restrictions. But it would be a mistake to say that the issue here is primarily economic. It is also, and even more fundamentally, about freedom. When people come to the United States from poor and oppressive societies, they increase their freedom in many ways. Think of refugees fleeing religious or ethnic persecution, women escaping patriarchal societies, or people fleeing massacres such as those perpetrated by ISIS. The ancestors of most modern Americans escaped such oppression during the period when we wisely did not have the kinds of immigration restrictions that we do today. If we had today's immigration policies back then, the ancestors of most of the current US population would never have been allowed to come. Immigration restrictions undermine the freedom of native-born Americans as well as immigrants. Because of our immigration laws, millions of native-born Americans cannot hire the workers they want, associate with the businesses that they choose, nor benefit from the entrepreneurship of immigrants; on average, they tend to be more entrepreneurial than native-born citizens. (4) II. IMMIGRATION AND DISCRIMINATION Current immigration policy is also inimical to the principle of color-blindness in government. In December 2014 President Obama's Departmen","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46878731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recently, some have argued (1) that the term "emoluments," as used in the Constitution's Foreign Emoluments Clause (2) and Presidential Emoluments Clause, (3) reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. (4) There is good reason to doubt the correctness of this position. Why? The Presidential Emoluments Clause states: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. (5) If the emoluments-are-any-pecuniary-advantage position were correct, if "emoluments" as used in the Constitution extended to any pecuniary advantage, then presidents are and would have been precluded from doing business with the United States government. However, George Washington, who had presided over the Philadelphia Convention, (6) did business with the Federal Government on more than one occasion while he was president. He purchased several lots of land in the new federal capital at public auction. One such set of purchases took place on or about September 18, 1793. (7) The public auction was run by three commissioners: David Stuart, Daniel Carroll, and Thomas Johnson. Who were they? David Stuart was a member of the Virginia convention that ratified the Federal Constitution. Stuart was also a federal elector in the first federal election for President and Vice President of the United States. (8) Daniel Carroll was a member of the Federal Convention that drafted the Constitution and later a member of the First Congress. (9) Thomas Johnson was the first Governor of Maryland following independence, a member of the Maryland convention that ratified the Federal Constitution, and afterwards he served as a Justice of the Supreme Court of the United States. (10) So among the four participants (Washington and the three commissioners) were: three members of the Continental Congress; (11) three members of pre-independence colonial legislatures or post-independence state legislatures; (12) two members of state conventions that ratified the Constitution; two members of the Federal Convention (including the Convention's president); a member of the First Congress; a Justice of the Supreme Court of the United States; a governor; a federal elector for President and Vice President; and, our first President. Collectively these four are, undoubtedly, an accomplished group. Are we really to believe that not only did all four officials willingly, openly, and notoriously participate in a conspiracy to aid and abet the President in violating the Constitution's Presidential Emoluments Clause, but that they also left--for themselves and their posterity--a complete and signed documentary trail of their wrongdoing? (13) The emoluments-are-any-pecuniary-advantage position amounts to: (1) President Washin
{"title":"Business Transactions and President Trump's 'Emoluments' Problem","authors":"S. Tillman","doi":"10.2139/SSRN.2937186","DOIUrl":"https://doi.org/10.2139/SSRN.2937186","url":null,"abstract":"Recently, some have argued (1) that the term \"emoluments,\" as used in the Constitution's Foreign Emoluments Clause (2) and Presidential Emoluments Clause, (3) reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. (4) There is good reason to doubt the correctness of this position. Why? The Presidential Emoluments Clause states: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. (5) If the emoluments-are-any-pecuniary-advantage position were correct, if \"emoluments\" as used in the Constitution extended to any pecuniary advantage, then presidents are and would have been precluded from doing business with the United States government. However, George Washington, who had presided over the Philadelphia Convention, (6) did business with the Federal Government on more than one occasion while he was president. He purchased several lots of land in the new federal capital at public auction. One such set of purchases took place on or about September 18, 1793. (7) The public auction was run by three commissioners: David Stuart, Daniel Carroll, and Thomas Johnson. Who were they? David Stuart was a member of the Virginia convention that ratified the Federal Constitution. Stuart was also a federal elector in the first federal election for President and Vice President of the United States. (8) Daniel Carroll was a member of the Federal Convention that drafted the Constitution and later a member of the First Congress. (9) Thomas Johnson was the first Governor of Maryland following independence, a member of the Maryland convention that ratified the Federal Constitution, and afterwards he served as a Justice of the Supreme Court of the United States. (10) So among the four participants (Washington and the three commissioners) were: three members of the Continental Congress; (11) three members of pre-independence colonial legislatures or post-independence state legislatures; (12) two members of state conventions that ratified the Constitution; two members of the Federal Convention (including the Convention's president); a member of the First Congress; a Justice of the Supreme Court of the United States; a governor; a federal elector for President and Vice President; and, our first President. Collectively these four are, undoubtedly, an accomplished group. Are we really to believe that not only did all four officials willingly, openly, and notoriously participate in a conspiracy to aid and abet the President in violating the Constitution's Presidential Emoluments Clause, but that they also left--for themselves and their posterity--a complete and signed documentary trail of their wrongdoing? (13) The emoluments-are-any-pecuniary-advantage position amounts to: (1) President Washin","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48351871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Free Expression on Campus: Mitigating the Costs of Contentious Speakers","authors":"Suzanne B. Goldberg","doi":"10.7916/D8Z33G7T","DOIUrl":"https://doi.org/10.7916/D8Z33G7T","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist. Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system. An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine. But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can. Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings. Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove. We now have reached a point where that taint can be eliminated. There is a consensus that the clemency process can and should be reformed. The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions. The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position. That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.
{"title":"Revitalizing the Clemency Process","authors":"Paul J. Larkin, Jr.","doi":"10.2139/ssrn.2862705","DOIUrl":"https://doi.org/10.2139/ssrn.2862705","url":null,"abstract":"St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist. Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system. An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine. But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can. Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings. Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove. We now have reached a point where that taint can be eliminated. There is a consensus that the clemency process can and should be reformed. The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions. The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position. That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68398763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Congress has the power to “define and punish...Offenses against the Law of Nations.” This clause clearly empowers Congress to punish universally recognized offenses under international law, piracy being one obvious example. But Congress also has the power to “define” offenses against the law of nations. Surely punishing an offense presupposes defining it. So what does “define” add?This paper provides an answer. The Constitution’s text and structure, early constitutional history, and modern foreign relations doctrine all suggest that Congress has the power to define offenses against the law of nations that preexisting international law does not proscribe. Congress may pass laws prohibiting private conduct that violates international law, as well as any private conduct that the United States has an international duty to punish. It can also punish offenses if it is ambiguous whether international law requires it too. Congress probably even has the power to create new offenses in order to foster changes in customary international law.
{"title":"The Power to Define Offenses Against the Law of Nations","authors":"Alex H. Loomis","doi":"10.2139/SSRN.2810911","DOIUrl":"https://doi.org/10.2139/SSRN.2810911","url":null,"abstract":"Congress has the power to “define and punish...Offenses against the Law of Nations.” This clause clearly empowers Congress to punish universally recognized offenses under international law, piracy being one obvious example. But Congress also has the power to “define” offenses against the law of nations. Surely punishing an offense presupposes defining it. So what does “define” add?This paper provides an answer. The Constitution’s text and structure, early constitutional history, and modern foreign relations doctrine all suggest that Congress has the power to define offenses against the law of nations that preexisting international law does not proscribe. Congress may pass laws prohibiting private conduct that violates international law, as well as any private conduct that the United States has an international duty to punish. It can also punish offenses if it is ambiguous whether international law requires it too. Congress probably even has the power to create new offenses in order to foster changes in customary international law.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68342765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many private universities and other schools adhere to religiously grounded codes of conduct that embrace heterosexual monogamy as the sole moral context for sexual relationships. The federal income tax exemption of these schools has been questioned following the recent Supreme Court opinion of Obergefell v. Hodges. In Obergefell, the Supreme Court held that the right to marry is a fundamental constitutional right that same-sex couples may exercise. The relevance of this decision to the federal tax status of private religious schools arises from another Supreme Court decision, Bob Jones University v. United States. The Court in Bob Jones held that two schools with racially discriminatory policies as to students were not entitled to exemption from federal income tax because the policies violate established public policy. The issue now is whether the sexual conduct policies of private religious schools violate the established public policy of the United States following Obergefell. After reviewing Bob Jones and surveying the application of the public policy doctrine by the IRS and the courts, this article argues that, regardless of the factual context of a controversy in which the IRS seeks to invoke Bob Jones to deny or revoke federal income tax exemption, the public policy doctrine should be narrowly construed. Applying a suggested framework for limiting the public policy doctrine coherently, this Article argues that schools maintaining sexual conduct policies that prohibit sexual activity inconsistent with their religiously informed, traditional view of marriage remain tax-exempt after Obergefell. Apart from the proposed framework, this Article further explains why Obergefell’s analytical approach, language and tone are inconsistent with applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies.
许多私立大学和其他学校坚持以宗教为基础的行为准则，将异性恋一夫一妻制作为性关系的唯一道德背景。在奥贝格费尔诉霍奇斯案(Obergefell v. Hodges)最近的最高法院判决之后，这些学校的联邦所得税豁免受到质疑。在奥贝格费尔案中，最高法院认为，结婚的权利是同性伴侣可以行使的一项基本宪法权利。这一决定与私立宗教学校的联邦税收地位的相关性源于最高法院的另一项裁决，鲍勃·琼斯大学诉美国。鲍勃·琼斯案法院认为，两所对学生实行种族歧视政策的学校无权免征联邦所得税，因为这些政策违反了既定的公共政策。现在的问题是私立宗教学校的性行为政策是否违反了奥贝格费尔案之后美国的既定公共政策。在回顾了鲍勃·琼斯案并调查了美国国税局和法院对公共政策原则的应用之后，本文认为，无论美国国税局试图援引鲍勃·琼斯案来否认或撤销联邦所得税豁免的争议的事实背景如何，都应该狭义地解释公共政策原则。本文运用一个建议的框架来连贯地限制公共政策原则，认为在奥贝格费尔事件之后，维持性行为政策的学校禁止与其宗教信仰和传统婚姻观不一致的性活动，仍然免税。除了提出的框架之外，本文还进一步解释了为什么Obergefell的分析方法、语言和语气与将Bob Jones应用于维持性行为政策的宗教学校的劣势不一致。
{"title":"The Sexual Integrity of Religious Schools and Tax Exemption","authors":"J. R. Buckles","doi":"10.2139/SSRN.2814711","DOIUrl":"https://doi.org/10.2139/SSRN.2814711","url":null,"abstract":"Many private universities and other schools adhere to religiously grounded codes of conduct that embrace heterosexual monogamy as the sole moral context for sexual relationships. The federal income tax exemption of these schools has been questioned following the recent Supreme Court opinion of Obergefell v. Hodges. In Obergefell, the Supreme Court held that the right to marry is a fundamental constitutional right that same-sex couples may exercise. The relevance of this decision to the federal tax status of private religious schools arises from another Supreme Court decision, Bob Jones University v. United States. The Court in Bob Jones held that two schools with racially discriminatory policies as to students were not entitled to exemption from federal income tax because the policies violate established public policy. The issue now is whether the sexual conduct policies of private religious schools violate the established public policy of the United States following Obergefell. After reviewing Bob Jones and surveying the application of the public policy doctrine by the IRS and the courts, this article argues that, regardless of the factual context of a controversy in which the IRS seeks to invoke Bob Jones to deny or revoke federal income tax exemption, the public policy doctrine should be narrowly construed. Applying a suggested framework for limiting the public policy doctrine coherently, this Article argues that schools maintaining sexual conduct policies that prohibit sexual activity inconsistent with their religiously informed, traditional view of marriage remain tax-exempt after Obergefell. Apart from the proposed framework, this Article further explains why Obergefell’s analytical approach, language and tone are inconsistent with applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68346083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The idea of vested private rights divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.The approach is made by way of a central case study: the right of emancipation on free English soil. The study suggests a coherent, focal meaning of the vested private right as a norm that imposes a conclusive duty upon a duty-bearer or class of duty-bearers, and which constrains public officials’ powers to recognize, change, or adjudicate private rights and duties. This focal meaning suggests that central instances of vested rights are quite rare. This accounts for skepticism of the concept. Yet it also suggests that less-central instances of vested rights are rather common. This accounts for the concept’s practical appeal and enables one to distinguish weak or peripheral senses of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong or central senses, which are rare in practice but theoretically interesting.
{"title":"Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights","authors":"A. MacLeod","doi":"10.2139/SSRN.2810162","DOIUrl":"https://doi.org/10.2139/SSRN.2810162","url":null,"abstract":"The idea of vested private rights divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to explain the doctrine’s continued appeal and to discern some coherence in it while also accounting for the causes of skepticism.The approach is made by way of a central case study: the right of emancipation on free English soil. The study suggests a coherent, focal meaning of the vested private right as a norm that imposes a conclusive duty upon a duty-bearer or class of duty-bearers, and which constrains public officials’ powers to recognize, change, or adjudicate private rights and duties. This focal meaning suggests that central instances of vested rights are quite rare. This accounts for skepticism of the concept. Yet it also suggests that less-central instances of vested rights are rather common. This accounts for the concept’s practical appeal and enables one to distinguish weak or peripheral senses of vested private rights, which are not as conceptually interesting but are nevertheless significant for the practice of law, from strong or central senses, which are rare in practice but theoretically interesting.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68342956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.
{"title":"Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State","authors":"R. Cass","doi":"10.2139/ssrn.2741208","DOIUrl":"https://doi.org/10.2139/ssrn.2741208","url":null,"abstract":"The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2741208","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are few conservatives and libertarians in legal academia. Why? Three explanations are usually provided: the Brainpower, Interest, and Greed Hypotheses. Alternatively, it could be because of Discrimination. This paper explores these possibilities by looking at citation and publication rates by law professors at the 16 highest-ranked law schools in the country. Using regression analysis, propensity score matching, propensity score reweighting, nearest neighbor matching, and coarsened exact matching, this paper finds that after taking into account traditional correlates of scholarly ability, conservative and libertarian law professors are cited more and publish more than their peers. The paper also finds that they tend to have more of the traditional qualifications required of law professors than their peers, with a few exceptions. This paper indicates that, at least in the schools sampled, conservative and libertarian law professors are not few in number because of a lack of scholarly ability or professional qualifications. Further, the patterns do not prove, but are consistent with, a story of discrimination. The downsides to having so few conservatives and libertarians in the legal academy are also briefly explored.
{"title":"Why are There So Few Conservatives and Libertarians in Legal Academia? An Empirical Exploration of Three Hypotheses","authors":"J. Phillips","doi":"10.2139/SSRN.2695634","DOIUrl":"https://doi.org/10.2139/SSRN.2695634","url":null,"abstract":"There are few conservatives and libertarians in legal academia. Why? Three explanations are usually provided: the Brainpower, Interest, and Greed Hypotheses. Alternatively, it could be because of Discrimination. This paper explores these possibilities by looking at citation and publication rates by law professors at the 16 highest-ranked law schools in the country. Using regression analysis, propensity score matching, propensity score reweighting, nearest neighbor matching, and coarsened exact matching, this paper finds that after taking into account traditional correlates of scholarly ability, conservative and libertarian law professors are cited more and publish more than their peers. The paper also finds that they tend to have more of the traditional qualifications required of law professors than their peers, with a few exceptions. This paper indicates that, at least in the schools sampled, conservative and libertarian law professors are not few in number because of a lack of scholarly ability or professional qualifications. Further, the patterns do not prove, but are consistent with, a story of discrimination. The downsides to having so few conservatives and libertarians in the legal academy are also briefly explored.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2695634","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68259951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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