Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution. That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.
{"title":"Public Choice Theory and Occupational Licensing","authors":"Paul J. Larkin, Jr.","doi":"10.2139/ssrn.2540084","DOIUrl":"https://doi.org/10.2139/ssrn.2540084","url":null,"abstract":"Occupational licensing is now one of the most widespread and fastest growing forms of labor market regulation. Occupational licensing requirement generally are defended on the ground that they offset the information disparity between service providers and consumers by guaranteeing a minimal level of qualifications. Over time, however, a large number of federal government officials, scholars, and commentators have criticized the widespread use of occupational licensing requirements. They have argued that licensing requirements benefit licensees, not consumers, by helping to create a cartel that can avoid competition and raise prices. Public Choice Theory is a useful tool for analyzing licensing requirements because it applies microeconomic and game theory to the political process. Doing so gives rise to the remarkable irony that the justification for regulation has come full circle. Originally, the rationale was that government intervention would remedy economic market failures in furtherance of the public interest. Today, we see that government intervention causes political market failures in furtherance of private interests. Government has become the problem, not the solution. That conclusion justifies a re-examination of the constitutionality of many occupational licensing schemes. Then Supreme Court has been unwilling to re-examine the constitutionality of these programs since the new Deal, but there are two grounds that might prove useful. One is the Equal Protection Clause. It requires a rational basis for treating similarly situated people differently. Here, the argument would be that the basis for requiring licenses is due to the operation of political bribery and extortion, which is not a legitimate state interest. The second argument would be that many license schemes vest lawmaking authority in private parties, which the Private Delegation Doctrine forbids.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2015-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2540084","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197388","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 National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces mecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies. Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.
{"title":"Bulk Metadata Collection: Statutory and Constitutional Considerations","authors":"L. Donohue","doi":"10.2139/SSRN.2344774","DOIUrl":"https://doi.org/10.2139/SSRN.2344774","url":null,"abstract":"The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces mecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of Smith v. Maryland, the privacy invasions resulting from the universal use of pen registers and trap and trace devices, and the advent of new technologies. Over the past decade, tension has emerged between the view that new technologies should be considered from the perspective of trespass doctrine and the view that Katz’s reasonable expectation of privacy test should apply. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines. Under trespass doctrine, the primary order for the telephony metadata program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. Under Katz, in turn, citizens do not expect that their telephony metadata will be collected and analyzed. Most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. FISA reform is necessary to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of statutory and constitutional law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs,” and requiring the government to demonstrate past effectiveness prior to obtaining renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2014-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125522","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, state and federal courts have been ruling against private regulatory organizations on a number of theories. This Article explores this new private-regulation skepticism and the theories that underpin it.This Article focuses on three main sources of law: the Due Process Clause, non-delegation doctrine, and antitrust law. To illustrate the doctrines, it follows five examples from recent cases and recent news of regulation by Amtrak, the North Carolina Board of Dental Examiners, the Mississippi Board of Pharmacy, the Texas Boll Weevil Eradication Foundation, and landowners in Texas water quality protection zones.The Due Process Clause is a potential limit on the private exercise of regulatory power, especially if the regulators and the regulated parties compete with each other. Federal non-delegation doctrine, by contrast, is unlikely to be much help in these challenges, though some states, like Texas, have vibrant non-delegation doctrines that not only are stricter than the federal one but also strongly distinguish between public and private delegates. Some courts don’t clearly distinguish between non-delegation and due process. I argue that they should, as the two doctrines serve very different purposes.Finally, federal antitrust law is available to guard against the anticompetitive dangers of “industry regulating itself.” Excessive conflicts of interest decrease the chance that a court will find state action immunity from antitrust law, and increase the chance that a court will find a substantive antitrust violation because of structural anticompetitive factors. Additionally, regulators that are sufficiently independent from state government are less likely to be insulated from liability by sovereign immunity. This new regulation skepticism thus provides several useful tools to challenge private regulation.
{"title":"The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges","authors":"A. Volokh","doi":"10.2139/SSRN.2335659","DOIUrl":"https://doi.org/10.2139/SSRN.2335659","url":null,"abstract":"In recent years, state and federal courts have been ruling against private regulatory organizations on a number of theories. This Article explores this new private-regulation skepticism and the theories that underpin it.This Article focuses on three main sources of law: the Due Process Clause, non-delegation doctrine, and antitrust law. To illustrate the doctrines, it follows five examples from recent cases and recent news of regulation by Amtrak, the North Carolina Board of Dental Examiners, the Mississippi Board of Pharmacy, the Texas Boll Weevil Eradication Foundation, and landowners in Texas water quality protection zones.The Due Process Clause is a potential limit on the private exercise of regulatory power, especially if the regulators and the regulated parties compete with each other. Federal non-delegation doctrine, by contrast, is unlikely to be much help in these challenges, though some states, like Texas, have vibrant non-delegation doctrines that not only are stricter than the federal one but also strongly distinguish between public and private delegates. Some courts don’t clearly distinguish between non-delegation and due process. I argue that they should, as the two doctrines serve very different purposes.Finally, federal antitrust law is available to guard against the anticompetitive dangers of “industry regulating itself.” Excessive conflicts of interest decrease the chance that a court will find state action immunity from antitrust law, and increase the chance that a court will find a substantive antitrust violation because of structural anticompetitive factors. Additionally, regulators that are sufficiently independent from state government are less likely to be insulated from liability by sovereign immunity. This new regulation skepticism thus provides several useful tools to challenge private regulation.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2335659","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68114751","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}
Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers. The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.
{"title":"The Paradox of Administrative Preemption","authors":"David S. Rubenstein","doi":"10.2139/SSRN.2379627","DOIUrl":"https://doi.org/10.2139/SSRN.2379627","url":null,"abstract":"Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers. The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2014-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68159483","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 Constitution requires officers to be appointed through a process of presidential nomination and senatorial consent, but the Recess Appointments Clause allows the President alone to make temporary appointments during Senate recesses. In this way, the President can fill offices even if the Senate is not available to confirm a nominee. A key question is how broad the President’s recess appointment authority is. In a 2005 article, I argued that the original meaning of the Clause provides narrow authority to the President. The executive branch, however, interprets the Clause much more broadly. If the executive’s interpretation is inconsistent with the original meaning, then how do its defenders seek to justify it? The main method has been to argue that various nonoriginalist considerations indicate that the executive’s broad interpretation should be followed. In this article, I examine the principal nonoriginalist arguments that might be made and show that none of them provides a persuasive case for departing from the original meaning. A common argument made against following the original meaning of a provision is based on living constitutionalism. Under this approach, the original Constitution is seen as an old, potentially outdated document and judges are viewed as having the power to update its provisions to take into account modern values and circumstances. And it is clearly true that the circumstances governing appointments have changed since the late 18th century, when antiquated transportation methods generally led the Senate to take recesses of between 6 to 9 months. But these changes in circumstances argue for narrower, not broader recess appointment authority. In a world with airplanes, Senate recesses are shorter and therefore there is less need to allow the President to make unilateral appointments. Moreover, modern appointment practices indicate that appointments take a long time, with on average nominations taking 4 months and appointments taking 5 to 6 months. This evidence suggests that short recesses of 10 or 30 days, which delay appointments by only a fraction of the ordinary appointment process, do not justify bypassing the senatorial confirmation requirement. The most common and probably the strongest argument for departing from the original meaning is based on historical practice. Defenders of the executive branch’s view of the Clause argue that the political branches have followed a practice allowing broad recess appointment power and that this practice has either been agreed to or acquiesced in by the legislature. This Article reviews the recess appointment practice and argues that this account of the practice is mistaken. It shows that Congress has passed statutes in 1863 and 1940 that have rejected the executive’s broad view. The executive, however, has mistakenly interpreted the latter statute to allow it broad authority. As the executive has asserted recess appointment power more aggressively in recent years, the legisla
{"title":"Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause","authors":"Michael B. Rappaport","doi":"10.2139/SSRN.2374563","DOIUrl":"https://doi.org/10.2139/SSRN.2374563","url":null,"abstract":"The Constitution requires officers to be appointed through a process of presidential nomination and senatorial consent, but the Recess Appointments Clause allows the President alone to make temporary appointments during Senate recesses. In this way, the President can fill offices even if the Senate is not available to confirm a nominee. A key question is how broad the President’s recess appointment authority is. In a 2005 article, I argued that the original meaning of the Clause provides narrow authority to the President. The executive branch, however, interprets the Clause much more broadly. If the executive’s interpretation is inconsistent with the original meaning, then how do its defenders seek to justify it? The main method has been to argue that various nonoriginalist considerations indicate that the executive’s broad interpretation should be followed. In this article, I examine the principal nonoriginalist arguments that might be made and show that none of them provides a persuasive case for departing from the original meaning. A common argument made against following the original meaning of a provision is based on living constitutionalism. Under this approach, the original Constitution is seen as an old, potentially outdated document and judges are viewed as having the power to update its provisions to take into account modern values and circumstances. And it is clearly true that the circumstances governing appointments have changed since the late 18th century, when antiquated transportation methods generally led the Senate to take recesses of between 6 to 9 months. But these changes in circumstances argue for narrower, not broader recess appointment authority. In a world with airplanes, Senate recesses are shorter and therefore there is less need to allow the President to make unilateral appointments. Moreover, modern appointment practices indicate that appointments take a long time, with on average nominations taking 4 months and appointments taking 5 to 6 months. This evidence suggests that short recesses of 10 or 30 days, which delay appointments by only a fraction of the ordinary appointment process, do not justify bypassing the senatorial confirmation requirement. The most common and probably the strongest argument for departing from the original meaning is based on historical practice. Defenders of the executive branch’s view of the Clause argue that the political branches have followed a practice allowing broad recess appointment power and that this practice has either been agreed to or acquiesced in by the legislature. This Article reviews the recess appointment practice and argues that this account of the practice is mistaken. It shows that Congress has passed statutes in 1863 and 1940 that have rejected the executive’s broad view. The executive, however, has mistakenly interpreted the latter statute to allow it broad authority. As the executive has asserted recess appointment power more aggressively in recent years, the legisla","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2014-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68152112","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":"Treaty Law Through a Military Lens: A 'Full Spectrum' Insight into US Treaty Practice","authors":"G. Corn, Dru Brenner-Beck","doi":"10.2139/ssrn.2399917","DOIUrl":"https://doi.org/10.2139/ssrn.2399917","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68181720","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}
Law school faculties tilt heavily to the left. There is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This imbalance is a serious problem for law students, who do not get the full range of views in important contemporary debates, and for legal scholarship, which would profit from an unbiased marketplace of ideas. The purpose of this paper is to discuss practical steps that might be taken to achieve a fairer representation of conservatives and libertarians in law schools. These include measures to induce the Association of American Law Schools abide by its professed commitment to viewpoint diversity; to improve viewpoint diversity at individual schools; and efforts directed at law schools generally.This paper is based on a presentation at a conference, Intellectual Diversity and the Legal Academy, held at Harvard Law School on April 5, 2013. It is scheduled to be published in a symposium issue of the Harvard Journal of Law & Public Policy.
法学院的师资力量严重偏左。对于这种倾向，除了对政治不正确的学者的歧视之外，没有其他合理的解释。这种不平衡对法学院学生来说是一个严重的问题，因为他们无法在重要的当代辩论中获得全面的观点，而对法律学术来说，这将从一个公正的思想市场中受益。本文的目的是讨论可能采取的实际步骤，以实现保守派和自由意志主义者在法学院的更公平的代表。这些措施包括促使美国法学院协会(Association of American Law Schools)遵守其公开承诺的观点多样性;改善个别学校的观点多样性;以及针对法学院的努力。本文基于2013年4月5日在哈佛法学院举行的“智力多样性与法律学院”会议上的演讲。这篇文章将在《哈佛法律与公共政策杂志》的一期研讨会上发表。
{"title":"Toward Improved Intellectual Diversity in Law Schools","authors":"G. Dent","doi":"10.2139/SSRN.2324281","DOIUrl":"https://doi.org/10.2139/SSRN.2324281","url":null,"abstract":"Law school faculties tilt heavily to the left. There is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This imbalance is a serious problem for law students, who do not get the full range of views in important contemporary debates, and for legal scholarship, which would profit from an unbiased marketplace of ideas. The purpose of this paper is to discuss practical steps that might be taken to achieve a fairer representation of conservatives and libertarians in law schools. These include measures to induce the Association of American Law Schools abide by its professed commitment to viewpoint diversity; to improve viewpoint diversity at individual schools; and efforts directed at law schools generally.This paper is based on a presentation at a conference, Intellectual Diversity and the Legal Academy, held at Harvard Law School on April 5, 2013. It is scheduled to be published in a symposium issue of the Harvard Journal of Law & Public Policy.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2013-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68104232","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 the choice of my topic, I unknowingly filched the title of Justice Sandra Day O'Connor's memoirs. I meant to call upon what is awesome and venerable in the law, as I think the good Justice did as well. Majesty is not in our style of democratic informality, in which everything is open to change in the hope of reform. But we are still attached to the formality of procedure and the solemnity of judicial garb designed to maintain respect for the law. We do not need regal magnificence in our judges, but we do require republican assurances that public justice is serious business. Above all, any appearance that the law can be circumvented by private approach or by interested calculation --and this warning is directed to professors--is to be avoided. What happens behind the scenes must stay behind the scenes. Against this intimation of majesty practiced in our time is the movement of thought known as "legal realism." I will argue in my brief that majesty is good and that legal realism is inadequate. Legal realism is not all wrong, but the view that it is enough is all wrong. Legal realism has several modes, but they all declare that something other than, and more powerful than, law is the cause of law. The "realism" consists of seeing through mere appearances and establishing the fact of this more powerful force. Once established, that fact must be published, taught, and spread. Legal realism is expected to bring good to society by its inventors, who quickly become, if they were not from the first, its advocates. It asserts that our law will be better if through clear thinking we dispense with its irrational majesty. This realism is really idealism. In the old days, when philosophy was young, the pre-Socratic philosophers thought that laws were made for the convenience of rulers and nothing good was to be expected from politics. They thought that was realism. In America, advocates of legal realism have arisen from the Progressive tradition, joined now by libertarian conservatives, who claim public good will result from their public unmasking of law. Despite the fact (as they maintain) that no one aims for the public good, they believe it does exist; Socrates was right about that. The sort of thinking our legal realists recommend can be seen in the famous prisoner's dilemma that is the essence of game theory, the most fashionable mode of legal realism. The prisoner's dilemma posits a situation in which a prisoner must choose between defecting from a fellow prisoner and cooperating with him. We do not know whether the prisoner is guilty and should therefore confess his crimes. We do not know whether the law he may or may not have violated deserves to be respected. But the example is not as neutral as it seems. One's sympathies are unjustifiably enlisted on the side of the prisoner by adopting his point of view. From the standpoint of the law, he is defecting from the law instead of cooperating with it by confessing, as is his duty. The example substitut
{"title":"On the Majesty of the Law","authors":"H. Mansfield","doi":"10.2307/j.ctv1210128.41","DOIUrl":"https://doi.org/10.2307/j.ctv1210128.41","url":null,"abstract":"In the choice of my topic, I unknowingly filched the title of Justice Sandra Day O'Connor's memoirs. I meant to call upon what is awesome and venerable in the law, as I think the good Justice did as well. Majesty is not in our style of democratic informality, in which everything is open to change in the hope of reform. But we are still attached to the formality of procedure and the solemnity of judicial garb designed to maintain respect for the law. We do not need regal magnificence in our judges, but we do require republican assurances that public justice is serious business. Above all, any appearance that the law can be circumvented by private approach or by interested calculation --and this warning is directed to professors--is to be avoided. What happens behind the scenes must stay behind the scenes. Against this intimation of majesty practiced in our time is the movement of thought known as \"legal realism.\" I will argue in my brief that majesty is good and that legal realism is inadequate. Legal realism is not all wrong, but the view that it is enough is all wrong. Legal realism has several modes, but they all declare that something other than, and more powerful than, law is the cause of law. The \"realism\" consists of seeing through mere appearances and establishing the fact of this more powerful force. Once established, that fact must be published, taught, and spread. Legal realism is expected to bring good to society by its inventors, who quickly become, if they were not from the first, its advocates. It asserts that our law will be better if through clear thinking we dispense with its irrational majesty. This realism is really idealism. In the old days, when philosophy was young, the pre-Socratic philosophers thought that laws were made for the convenience of rulers and nothing good was to be expected from politics. They thought that was realism. In America, advocates of legal realism have arisen from the Progressive tradition, joined now by libertarian conservatives, who claim public good will result from their public unmasking of law. Despite the fact (as they maintain) that no one aims for the public good, they believe it does exist; Socrates was right about that. The sort of thinking our legal realists recommend can be seen in the famous prisoner's dilemma that is the essence of game theory, the most fashionable mode of legal realism. The prisoner's dilemma posits a situation in which a prisoner must choose between defecting from a fellow prisoner and cooperating with him. We do not know whether the prisoner is guilty and should therefore confess his crimes. We do not know whether the law he may or may not have violated deserves to be respected. But the example is not as neutral as it seems. One's sympathies are unjustifiably enlisted on the side of the prisoner by adopting his point of view. From the standpoint of the law, he is defecting from the law instead of cooperating with it by confessing, as is his duty. The example substitut","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68772267","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}
Responding to Richard Epstein's writings on the rule of law in the administrative state, this paper argues that it is impossible to advance a compelling conception of the rule of law that relies entirely on confining government discretion through clear rules. What is needed is a conception of the rule of law rooted in institutional practice, in which the written documents of law [are] buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority, even when relevant rules are vague and enforcement prospects are remote. Administrative rule-making may well advance these values better than congressional legislation.
{"title":"The Rule of Law and the Inevitability of Discretion","authors":"P. Shane","doi":"10.31228/osf.io/savny","DOIUrl":"https://doi.org/10.31228/osf.io/savny","url":null,"abstract":"Responding to Richard Epstein's writings on the rule of law in the administrative state, this paper argues that it is impossible to advance a compelling conception of the rule of law that relies entirely on confining government discretion through clear rules. What is needed is a conception of the rule of law rooted in institutional practice, in which the written documents of law [are] buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority, even when relevant rules are vague and enforcement prospects are remote. Administrative rule-making may well advance these values better than congressional legislation.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640693","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}
Pub Date : 2010-06-22DOI: 10.1057/9781137380364.0010
M. B. Mukasey
{"title":"The Obama Administration and the War on Terror","authors":"M. B. Mukasey","doi":"10.1057/9781137380364.0010","DOIUrl":"https://doi.org/10.1057/9781137380364.0010","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2010-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"58220831","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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