One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. (1) Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. (2) Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle. (3) What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard. (4) It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. The important thing is to have some standard to control discretion, plus judicial review. The Court rejected this particular idea in Whitman v. American Trucking Associations. (5) Justice Scalia, writing for the Court, dismissed as "internally contradictory" the notion that an agency could cure a nondelegation problem by adopting a self-limiting standard. (6) As he explained: "The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority." (7) What has been less noticed about American Trucking is that the Court, having interred the self-limiting-standards idea, also omitted the ritual bow to judicial review as an important safeguard against abuses of broad delegations. To be sure, the Court reaffirmed that the question whether a statute violates the nondelegation doctrine is for the courts to decide. (8) And the Court engaged in vigorous judicial review of the agency decision that triggered the nondelegation challenge, holding that the agency's decision was unreasonable. (9) But neither Justice Scalia nor any of the concurring Justices said that the availability of judicial review was itself a relevant element in resolving the delegation challenge. Which leads to my topic: What is the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead? To make this question concrete, let me describe a petition for certiorari recently denied by the Supreme Court in County of El
{"title":"Delegation and Judicial Review","authors":"T. Merrill","doi":"10.7916/D81J99CX","DOIUrl":"https://doi.org/10.7916/D81J99CX","url":null,"abstract":"One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. (1) Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. (2) Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle. (3) What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard. (4) It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. The important thing is to have some standard to control discretion, plus judicial review. The Court rejected this particular idea in Whitman v. American Trucking Associations. (5) Justice Scalia, writing for the Court, dismissed as \"internally contradictory\" the notion that an agency could cure a nondelegation problem by adopting a self-limiting standard. (6) As he explained: \"The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority.\" (7) What has been less noticed about American Trucking is that the Court, having interred the self-limiting-standards idea, also omitted the ritual bow to judicial review as an important safeguard against abuses of broad delegations. To be sure, the Court reaffirmed that the question whether a statute violates the nondelegation doctrine is for the courts to decide. (8) And the Court engaged in vigorous judicial review of the agency decision that triggered the nondelegation challenge, holding that the agency's decision was unreasonable. (9) But neither Justice Scalia nor any of the concurring Justices said that the availability of judicial review was itself a relevant element in resolving the delegation challenge. Which leads to my topic: What is the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead? To make this question concrete, let me describe a petition for certiorari recently denied by the Supreme Court in County of El","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"33 1","pages":"73-85"},"PeriodicalIF":0.6,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363745","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}
This essay focuses on the relationship between non-delegation doctrine and so-called unitary executive theory. It argues that, if the Supreme Court were to embrace unitary executive theory without, as is highly unlikely, tightening up on the non-delegation doctrine, the result would be a constitutional disaster in terms of reduced executive branch legal and political accountability. Increasing the legitimacy of the administrative state ought to involve more, not fewer mechanisms that subject the exercise of presidential power to effective checks and balances.
{"title":"Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State","authors":"P. Shane","doi":"10.31228/osf.io/zyqrd","DOIUrl":"https://doi.org/10.31228/osf.io/zyqrd","url":null,"abstract":"This essay focuses on the relationship between non-delegation doctrine and so-called unitary executive theory. It argues that, if the Supreme Court were to embrace unitary executive theory without, as is highly unlikely, tightening up on the non-delegation doctrine, the result would be a constitutional disaster in terms of reduced executive branch legal and political accountability. Increasing the legitimacy of the administrative state ought to involve more, not fewer mechanisms that subject the exercise of presidential power to effective checks and balances.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"33 1","pages":"103"},"PeriodicalIF":0.6,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641282","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}
This short paper attempts to set forth a comprehensive, but brief, overview of the Constitution's allocation of war powers and to apply those lessons to the most signal, controversial issues of recent and current war practice: control of the decision to go to war; control over war-execution in all respects, including capture, interrogation, detention, and military punishment of enemy combatants (lawful and unlawful); interception of communications with the enemy; judicial constitutional interpretations touching on (and interfering with) the Constitution's allocation of war powers. The Constitution's allocation of war powers is a classic application of the Framers’ reliance on separation of powers in the constitutional design. The Framers regarded the war power as too important to be vested in a single set of hands and so, by conscious design, divided it and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap - and thus shared authority - among them of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war - the authority to take the nation into a state of war. Second, the Constitution vests in the President, and not in Congress, the power to conduct war. Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other’s powers. Third, the Constitution vest no substantive war powers in the judiciary. But questions of the Constitution’s allocation of war powers nonetheless can be judicial questions. This does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. (Another aspect of the separation of powers is that the Framers regarded the power to interpret law - the power of constitutional interpretation - as another power too important to vest exclusively in any one branch of government. It too - like the war power - is a divided, shared power.) The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution’s assignments of war powers to them. The power to authorize war properly rests with Congress, but Congress has exercised that power to grant the President enormous discretion to wage war. The Authorization to Use Military Force (AUMF) of September 18, 2001 is the broadest declaration of war in our nation's history, lawfully delegating to the President sweeping authority to use force against a wide array of enemies. Coupled with statutes like the Military Commissions Act of 2006 (MCA), Congress has added practically all of the war powers within its control to the President, and even endorsed a surprisingly pro-presidentialist view of the Constitution's allocation of powers. The Commander in C
{"title":"THE WAR POWER","authors":"M. Paulsen","doi":"10.2307/j.ctv173f229.8","DOIUrl":"https://doi.org/10.2307/j.ctv173f229.8","url":null,"abstract":"This short paper attempts to set forth a comprehensive, but brief, overview of the Constitution's allocation of war powers and to apply those lessons to the most signal, controversial issues of recent and current war practice: control of the decision to go to war; control over war-execution in all respects, including capture, interrogation, detention, and military punishment of enemy combatants (lawful and unlawful); interception of communications with the enemy; judicial constitutional interpretations touching on (and interfering with) the Constitution's allocation of war powers. The Constitution's allocation of war powers is a classic application of the Framers’ reliance on separation of powers in the constitutional design. The Framers regarded the war power as too important to be vested in a single set of hands and so, by conscious design, divided it and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap - and thus shared authority - among them of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war - the authority to take the nation into a state of war. Second, the Constitution vests in the President, and not in Congress, the power to conduct war. Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other’s powers. Third, the Constitution vest no substantive war powers in the judiciary. But questions of the Constitution’s allocation of war powers nonetheless can be judicial questions. This does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. (Another aspect of the separation of powers is that the Framers regarded the power to interpret law - the power of constitutional interpretation - as another power too important to vest exclusively in any one branch of government. It too - like the war power - is a divided, shared power.) The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution’s assignments of war powers to them. The power to authorize war properly rests with Congress, but Congress has exercised that power to grant the President enormous discretion to wage war. The Authorization to Use Military Force (AUMF) of September 18, 2001 is the broadest declaration of war in our nation's history, lawfully delegating to the President sweeping authority to use force against a wide array of enemies. Coupled with statutes like the Military Commissions Act of 2006 (MCA), Congress has added practically all of the war powers within its control to the President, and even endorsed a surprisingly pro-presidentialist view of the Constitution's allocation of powers. The Commander in C","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"33 1","pages":"113"},"PeriodicalIF":0.6,"publicationDate":"2009-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68782784","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 : 2009-06-22DOI: 10.5040/9780755612390.ch-007
M. B. Mukasey
I have long had a deep respect for the Federalist Society and for its principles, and so I feel particularly privileged to be at this podium tonight. For over twenty-five years, the members of this Society have committed themselves to vigorous and open debate about the pressing legal issues of our day and how they ought to be resolved under the constant and durable provisions of our Constitution. The Federalist Society is committed to taking the Constitution seriously and understanding it to be a legal document, rather than an empty vessel to be filled by the policy preferences of those who happen to be wielding the pen at any given moment. On this evening, I want to applaud your contributions to the nation's legal culture and your efforts particularly over the past eight years to elevate the discourse surrounding the most important legal and policy issues facing our nation. It is my privilege to be here tonight with such distinguished guests, including members of the Supreme Court and the rest of the judiciary. There are also dozens of lawyers here who have served their country during this Administration, some of whom have now returned to the private sector and some of whom I have had the pleasure of working with during my tenure at the Justice Department. There are likely others in attendance who will have the opportunity to serve in the new Administration, all of which is a testament to those who founded this Society and who have a great deal to be proud of. The principles of the Society you founded have inspired a generation of lawyers and are now inspiring the next generation. As we near the end of this Administration and as we approach the first transition that our government has seen since the attacks of September 11, 2001, I would like to focus on the successes of this Administration that relate to matters that concern this Society, the legacy that will remain when this Administration leaves office, and on a matter relating to our national security that I think should continue to receive the attention of this Society. Perhaps of most obvious interest to the members of the Federalist Society are the judges and Justices whom the President has appointed to the federal bench. As the President recently explained to the Cincinnati chapter of this Society, he has sought out "judges who would faithfully interpret the Constitution-not use the courts to invent laws or dictate social policy." (1) With the help of many in this room, the President has succeeded in this effort and appointed many well-qualified and accomplished judges who have understood their role in interpreting--not writing--the laws. Most notably, the President has appointed two members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. These men are no strangers to the people in this room--indeed, they both spoke to this Society last year. Both of these remarkably accomplished Justices will continue to serve the Nation for many years to come, and we are grat
{"title":"National Security and the Rule of Law","authors":"M. B. Mukasey","doi":"10.5040/9780755612390.ch-007","DOIUrl":"https://doi.org/10.5040/9780755612390.ch-007","url":null,"abstract":"I have long had a deep respect for the Federalist Society and for its principles, and so I feel particularly privileged to be at this podium tonight. For over twenty-five years, the members of this Society have committed themselves to vigorous and open debate about the pressing legal issues of our day and how they ought to be resolved under the constant and durable provisions of our Constitution. The Federalist Society is committed to taking the Constitution seriously and understanding it to be a legal document, rather than an empty vessel to be filled by the policy preferences of those who happen to be wielding the pen at any given moment. On this evening, I want to applaud your contributions to the nation's legal culture and your efforts particularly over the past eight years to elevate the discourse surrounding the most important legal and policy issues facing our nation. It is my privilege to be here tonight with such distinguished guests, including members of the Supreme Court and the rest of the judiciary. There are also dozens of lawyers here who have served their country during this Administration, some of whom have now returned to the private sector and some of whom I have had the pleasure of working with during my tenure at the Justice Department. There are likely others in attendance who will have the opportunity to serve in the new Administration, all of which is a testament to those who founded this Society and who have a great deal to be proud of. The principles of the Society you founded have inspired a generation of lawyers and are now inspiring the next generation. As we near the end of this Administration and as we approach the first transition that our government has seen since the attacks of September 11, 2001, I would like to focus on the successes of this Administration that relate to matters that concern this Society, the legacy that will remain when this Administration leaves office, and on a matter relating to our national security that I think should continue to receive the attention of this Society. Perhaps of most obvious interest to the members of the Federalist Society are the judges and Justices whom the President has appointed to the federal bench. As the President recently explained to the Cincinnati chapter of this Society, he has sought out \"judges who would faithfully interpret the Constitution-not use the courts to invent laws or dictate social policy.\" (1) With the help of many in this room, the President has succeeded in this effort and appointed many well-qualified and accomplished judges who have understood their role in interpreting--not writing--the laws. Most notably, the President has appointed two members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. These men are no strangers to the people in this room--indeed, they both spoke to this Society last year. Both of these remarkably accomplished Justices will continue to serve the Nation for many years to come, and we are grat","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"32 1","pages":"831"},"PeriodicalIF":0.6,"publicationDate":"2009-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70497811","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 necessity doctrine states that a condemnor may only take property via eminent domain that is necessary for furthering a proposed public use. With the advent of the Kelo v. City of New London decision and its deferential treatment of public use, necessity remains one of the few existing checks on government discretion in eminent domain. This article proposes a modest revival of the dormant necessity doctrine that preserves government discretion while curbing the reckless exercise of eminent domain.
{"title":"Reviving Necessity in Eminent Domain","authors":"R. Bird","doi":"10.2139/SSRN.1409383","DOIUrl":"https://doi.org/10.2139/SSRN.1409383","url":null,"abstract":"The necessity doctrine states that a condemnor may only take property via eminent domain that is necessary for furthering a proposed public use. With the advent of the Kelo v. City of New London decision and its deferential treatment of public use, necessity remains one of the few existing checks on government discretion in eminent domain. This article proposes a modest revival of the dormant necessity doctrine that preserves government discretion while curbing the reckless exercise of eminent domain.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"33 1","pages":"239"},"PeriodicalIF":0.6,"publicationDate":"2009-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176945","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}
This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case. Second, we cannot resolve the debate by adopting the conceptual apparatus of one school or the other, and by pointing out that the rival approach has no place within the conceptual apparatus we adopt. To a large extent, originalism and precedent reside in parallel universes that do not intersect. The case for originalism starts with legal positivism, the idea that only enacted law is the law of the land. (3) Starting from this assumption, it follows that when there is an ambiguity in the law, we should try to resolve it by determining the meaning of the lawgiver. Such an approach naturally leads to looking at original sources for interpreting the law. As Steven Calabresi implicitly frames the question, "Does originalism say that precedent can trump the enacted law?" (4) The answer, of course, is "No, it does not." If we start from originalist premises, we do not leave much room for precedent or stare decisis. Conversely, if one starts from the universe of precedent, that universe is founded in the Holmesian observation that the law is, ultimately, the judgments of the courts. (5) If you adopt this perspective, you say, "Well, what predicts the judgments of courts is the precedents of courts, and therefore precedent is law." So, if we want to know whether or not following precedent is permissible, we find the answer by looking to precedent. And guess what we find? Judges say we ought to follow precedent. So precedent it is. This universe does not leave much space for the Constitution and enacted law. Thus, we have two
这篇文章提供了为什么保守派应该赞成在宪法裁决中重视先例的一些理由。让我先对原旨主义和先例之间的争论进行一些初步观察。首先，这场辩论在很大程度上被具体案件所主导，尤其是罗伊诉韦德案(Roe v. Wade)。令人痛心的是，在最近的确认听证会上，似乎唯一重要的问题是被提名人对罗伊诉韦德案的看法。同样，在先例与原旨主义的辩论中，许多讨论——甚至在法律评论中——都受到评论员对罗伊诉韦德案的看法的影响。所以，如果你认为罗伊诉韦德案是司法部门非法篡夺权力，而你想推翻它，那么你就会认为所有宪法都应该基于先例之外的东西。另一方面，如果你喜欢罗伊诉韦德案，你想要重申它，那么所有的先例都必须是好事。这是一种极其短视的思考问题的方式。那些认为自己是保守派并信奉大卫·施特劳斯(David Strauss)所提到的一些价值观的人——法治、法律的稳定性和可预见性、司法约束、社会政策决定应该由民选的人民代表而不是法官做出的信念(2)——不应该让他们对先例与原创性的看法受到一个案例的影响。其次，我们不能通过采用一个学派或另一个学派的概念工具来解决辩论，也不能通过指出对立的方法在我们采用的概念工具中没有位置来解决辩论。在很大程度上，原创主义和先例存在于不相交的平行宇宙中。原旨主义的案例始于法律实证主义，即只有颁布的法律才是国家的法律。(3)从这一假设出发，当法律存在歧义时，我们应该尝试通过确定立法者的含义来解决它。这种方法自然会导致在解释法律时寻找原始来源。正如Steven Calabresi含蓄地提出的问题，“原旨主义是否说先例可以胜过制定的法律?”答案当然是“不，它没有”。如果我们从原旨主义的前提出发，我们就没有留下多少先例或先例的余地。相反，如果一个人从先例的宇宙出发，那么这个宇宙是建立在福尔摩斯的观察之上的，即法律最终是法院的判决。(5)如果你采用这种观点，你会说，“嗯，预测法院判决的是法院的先例，因此先例就是法律。”因此，如果我们想知道是否允许遵循先例，我们可以通过查看先例来找到答案。猜猜我们发现了什么?法官说我们应该遵循先例。这是一个先例。这个宇宙没有多少空间留给宪法和制定的法律。因此，我们有两个在不同层面上运作的平行宇宙:制定法律的宇宙和法官制定法律的宇宙。一个人不能从一个前提出发来推翻另一个前提。现实情况是，至少从马歇尔法院(Marshall Court)以来，每一位大法官在某种程度上都依赖于原旨主义的推理和先例。卡拉布雷西教授是绝对正确的，当高度戏剧性和危机的时刻出现时，法官们倾向于回归宪法文本和制宪者的声明。(6)另一方面，对大法官的研究表明，他们在宪法意见书中引用的权威中，大约有80%或更多是最高法院的先例。(7)最仔细的研究考察了伦奎斯特和布伦南法官的观点，他们在研究进行时是典型的意识形态异类。据推测，中间派法官在更大程度上依赖先例。…
{"title":"The Conservative Case for Precedent","authors":"T. Merrill","doi":"10.7916/D8FJ2GC2","DOIUrl":"https://doi.org/10.7916/D8FJ2GC2","url":null,"abstract":"This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case. Second, we cannot resolve the debate by adopting the conceptual apparatus of one school or the other, and by pointing out that the rival approach has no place within the conceptual apparatus we adopt. To a large extent, originalism and precedent reside in parallel universes that do not intersect. The case for originalism starts with legal positivism, the idea that only enacted law is the law of the land. (3) Starting from this assumption, it follows that when there is an ambiguity in the law, we should try to resolve it by determining the meaning of the lawgiver. Such an approach naturally leads to looking at original sources for interpreting the law. As Steven Calabresi implicitly frames the question, \"Does originalism say that precedent can trump the enacted law?\" (4) The answer, of course, is \"No, it does not.\" If we start from originalist premises, we do not leave much room for precedent or stare decisis. Conversely, if one starts from the universe of precedent, that universe is founded in the Holmesian observation that the law is, ultimately, the judgments of the courts. (5) If you adopt this perspective, you say, \"Well, what predicts the judgments of courts is the precedents of courts, and therefore precedent is law.\" So, if we want to know whether or not following precedent is permissible, we find the answer by looking to precedent. And guess what we find? Judges say we ought to follow precedent. So precedent it is. This universe does not leave much space for the Constitution and enacted law. Thus, we have two","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"31 1","pages":"977-981"},"PeriodicalIF":0.6,"publicationDate":"2008-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71366078","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}
One of the most influential recent theories of Supreme Court decision-making is Cass Sunstein's "judicial minimalism." Sunstein argues that a majority of the justices of the Rehnquist Court were "minimalists," preferring to "leave things undecided" by favoring case-by-case adjudication over ambitious judicial agendas. While many legal scholars have embraced Sunstein's argument, no piece of scholarship has attempted a quantitative empirical test of the theory. This paper develops an empirical measure for judicial minimalism and examines whether minimalism affected the opinion writing and voting of the justices in the Rehnquist and Roberts Courts. The empirical analysis supports the conclusion that judicial minimalism has a statistically significant effect on the opinions of the justices, providing the first quantitative evidence of "meta-doctrine" in the Supreme Court.
{"title":"Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court","authors":"Robert T. Anderson","doi":"10.2139/SSRN.1026350","DOIUrl":"https://doi.org/10.2139/SSRN.1026350","url":null,"abstract":"One of the most influential recent theories of Supreme Court decision-making is Cass Sunstein's \"judicial minimalism.\" Sunstein argues that a majority of the justices of the Rehnquist Court were \"minimalists,\" preferring to \"leave things undecided\" by favoring case-by-case adjudication over ambitious judicial agendas. While many legal scholars have embraced Sunstein's argument, no piece of scholarship has attempted a quantitative empirical test of the theory. This paper develops an empirical measure for judicial minimalism and examines whether minimalism affected the opinion writing and voting of the justices in the Rehnquist and Roberts Courts. The empirical analysis supports the conclusion that judicial minimalism has a statistically significant effect on the opinions of the justices, providing the first quantitative evidence of \"meta-doctrine\" in the Supreme Court.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"32 1","pages":"1045"},"PeriodicalIF":0.6,"publicationDate":"2007-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68129950","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}
Over the past quarter century, consumer lending markets in the United States have become increasingly national in scope with large national banks and other federally chartered institutions playing an ever important role in many sectors, including credit card lending and home mortgages. At the same time, a series of court decisions have ruled that a wide range of state laws regulating credit card abuses and predatory mortgage lending practices are preempted at least as applied to national banks and other federally chartered institutions. Given the dominant role of federal institutions in our country's lending markets, these rulings have narrowed the capacity of states to police local lending transactions. As an alternative to direct regulation, the California Assembly recently considered legislation designed to improve consumer understanding of financial transactions through educational efforts to be financed by a new state tax on income from certain problematic loans made to California residents by financial institutions, including national banks and other federally chartered institutions. In this Article, we consider whether a tax of the sort proposed in California could survive a preemption challenge under recent court rulings as well as other potential constitutional attacks. While the States have quite limited powers to regulate federally chartered financial institutions, Congress in 12 U.S.C. Section 548 explicitly authorizes states to tax national banks. We explore the scope of state taxing authority that Section 548 and the relationship between that authority and recent preemption rulings After reviewing a range of legal precedents, we conclude that a state tax of the sort considered in California - which imposes modest levies on federally chartered entities but does not prevent these from engaging in otherwise authorized activities - should qualify as a legitimate exercise of state taxing powers under 12 U.S.C. Section 548 and also should withstand scrutiny under the Due Process and Commerce Clauses to the extent the tax is imposed on out-of-state banks.
{"title":"Can States Tax National Banks to Educate Consumers About Predatory Lending Practices","authors":"H. Jackson, S. A. Anderson","doi":"10.2139/SSRN.961273","DOIUrl":"https://doi.org/10.2139/SSRN.961273","url":null,"abstract":"Over the past quarter century, consumer lending markets in the United States have become increasingly national in scope with large national banks and other federally chartered institutions playing an ever important role in many sectors, including credit card lending and home mortgages. At the same time, a series of court decisions have ruled that a wide range of state laws regulating credit card abuses and predatory mortgage lending practices are preempted at least as applied to national banks and other federally chartered institutions. Given the dominant role of federal institutions in our country's lending markets, these rulings have narrowed the capacity of states to police local lending transactions. As an alternative to direct regulation, the California Assembly recently considered legislation designed to improve consumer understanding of financial transactions through educational efforts to be financed by a new state tax on income from certain problematic loans made to California residents by financial institutions, including national banks and other federally chartered institutions. In this Article, we consider whether a tax of the sort proposed in California could survive a preemption challenge under recent court rulings as well as other potential constitutional attacks. While the States have quite limited powers to regulate federally chartered financial institutions, Congress in 12 U.S.C. Section 548 explicitly authorizes states to tax national banks. We explore the scope of state taxing authority that Section 548 and the relationship between that authority and recent preemption rulings After reviewing a range of legal precedents, we conclude that a state tax of the sort considered in California - which imposes modest levies on federally chartered entities but does not prevent these from engaging in otherwise authorized activities - should qualify as a legitimate exercise of state taxing powers under 12 U.S.C. Section 548 and also should withstand scrutiny under the Due Process and Commerce Clauses to the extent the tax is imposed on out-of-state banks.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"141 1","pages":"831"},"PeriodicalIF":0.6,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67911431","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 : 2006-09-22DOI: 10.5040/9781472562494.ch-014
Jeremy Waldron
I. This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of the value of customary international law, or of the enforceability of international law in our own courts. The phrase "the rule of law" brings to mind a particular set of values and principles associated with the idea of legality. (1) These values and principles are the ancient focus of our allegiance as lawyers. The rule of law is one of the most important sources of the dignity and honor of the legal profession, and an awareness of the principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines the spirit and attitude that lawyers bring to their work. True, the rule of law is not the only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve the interests of their clients and of society generally. But the rule of law constrains lawyers in their pursuit of these other goals: they pursue justice and the social good through the rule of law, not around it or in spite of it. This Article will talk particularly about the obligations the rule of law imposes upon lawyers as they act in various capacities. Is it clear what the rule of law demands of lawyers in the international arena? Many people think it demands less in the international arena--that it demands less of a national government in the international arena, for example, than in the domestic arena--not just because there is less international law but also because a different attitude toward the rule of law is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it. II. To begin with, what does the rule of law require of lawyers in the municipal arena? (3) Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system. Every ordinary citizen has these obligations and can properly expect the assistance of her legal advisors. As the ordinary citizen goes abo
{"title":"The Rule of International Law","authors":"Jeremy Waldron","doi":"10.5040/9781472562494.ch-014","DOIUrl":"https://doi.org/10.5040/9781472562494.ch-014","url":null,"abstract":"I. This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of the value of customary international law, or of the enforceability of international law in our own courts. The phrase \"the rule of law\" brings to mind a particular set of values and principles associated with the idea of legality. (1) These values and principles are the ancient focus of our allegiance as lawyers. The rule of law is one of the most important sources of the dignity and honor of the legal profession, and an awareness of the principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines the spirit and attitude that lawyers bring to their work. True, the rule of law is not the only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve the interests of their clients and of society generally. But the rule of law constrains lawyers in their pursuit of these other goals: they pursue justice and the social good through the rule of law, not around it or in spite of it. This Article will talk particularly about the obligations the rule of law imposes upon lawyers as they act in various capacities. Is it clear what the rule of law demands of lawyers in the international arena? Many people think it demands less in the international arena--that it demands less of a national government in the international arena, for example, than in the domestic arena--not just because there is less international law but also because a different attitude toward the rule of law is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it. II. To begin with, what does the rule of law require of lawyers in the municipal arena? (3) Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system. Every ordinary citizen has these obligations and can properly expect the assistance of her legal advisors. As the ordinary citizen goes abo","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"16 1","pages":"15"},"PeriodicalIF":0.6,"publicationDate":"2006-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70514654","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}
Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state's sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence of any substantial doctrinal base in Tenth Amendment jurisprudence. This article first explores the legal and policy implications of the preemption program and identifies the consumer protection interests at stake and the states' role in vindicating those interests. It then considers the importance of judicial review to the Framers' federalism design and endeavors to distill from their commentary and debates some substantive content for the Tenth Amendment that federal courts could credibly enforce. The article concludes with a modest suggested template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action.
美国货币监理署(Office of the Comptroller of the Currency)最近颁布的法规宣称，它拥有凌驾于一系列州法律(包括消费者保护法)之上的广泛权力，这些法律不仅适用于全国性银行，也适用于它们在州内特许经营的子公司。这些规定有可能破坏州政府打击掠夺性贷款和其他滥用行为的努力，并干扰州政府对根据其法律注册的公司的主权权力。然而，面对这些倡议的挑战，联邦法院未能对基于第十修正案的主张进行任何实质性分析。这种主张的问题在于，在第十修正案的判例中缺乏任何实质性的理论基础。本文首先探讨了优先权计划的法律和政策含义，并确定了受到威胁的消费者保护利益以及各州在维护这些利益方面的作用。然后，它考虑了司法审查对制宪者联邦制设计的重要性，并努力从他们的评论和辩论中提炼出联邦法院可以可信地执行的第十修正案的一些实质性内容。文章最后提出了一个适度的建议模板，用于对联邦行政行为引起的第十修正案问题进行理论分析。
{"title":"Towards a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws","authors":"K. Fisher","doi":"10.2139/SSRN.824465","DOIUrl":"https://doi.org/10.2139/SSRN.824465","url":null,"abstract":"Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state's sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence of any substantial doctrinal base in Tenth Amendment jurisprudence. This article first explores the legal and policy implications of the preemption program and identifies the consumer protection interests at stake and the states' role in vindicating those interests. It then considers the importance of judicial review to the Framers' federalism design and endeavors to distill from their commentary and debates some substantive content for the Tenth Amendment that federal courts could credibly enforce. The article concludes with a modest suggested template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"29 1","pages":"981"},"PeriodicalIF":0.6,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67836614","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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