This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress. Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.
{"title":"Consenting Under Stress","authors":"H. Keren","doi":"10.2139/SSRN.2012013","DOIUrl":"https://doi.org/10.2139/SSRN.2012013","url":null,"abstract":"This article highlights a disturbing gap between what is currently known about stress across a range of disciplines and the way stress is treated at law. It does so by focusing on parties who seek relief from harmful contracts, on the grounds that they consented under stress. The article first exposes the leading legal view that stress is merely a subjective feeling and therefore merits no legal recognition. It then provides a pragmatic synthesis of the rich study of stress, in order to counter that misguided legal presumption and to offer a better understanding of the physical, social and psychological dimensions of stress. Exploring both scientifically accepted causes of stress (stressors) and its known outcomes, the article offers a new framing of stress and a set of analytic tools that allow better legal access to the problem. It argues that legal actors can and should use the non-legal scientific understanding of stress to evaluate the arguments of those who claim to have consented to an unwanted contract while under stress. The article concludes that informed evaluation of stress arguments is not only pragmatically necessary, but also conceptually required for any legal system that, like contract law, relies on the power of choice and consent.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"64 1","pages":"679"},"PeriodicalIF":0.5,"publicationDate":"2012-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67849651","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 : 2012-01-01DOI: 10.7135/UPO9780857285782.005
L. Rocher, D. Davis, R. Lariviere
{"title":"Studies in Hindu Law and Dharmaśāstra: Hindu Conceptions of Law","authors":"L. Rocher, D. Davis, R. Lariviere","doi":"10.7135/UPO9780857285782.005","DOIUrl":"https://doi.org/10.7135/UPO9780857285782.005","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"29 1","pages":"1283"},"PeriodicalIF":0.5,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71348569","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}
Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems. This Article — an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law and Stanford Law School — addresses some of the potential policy applications of research on the neurobiology of attachment, maltreatment, and trauma, with particular attention to the government’s articulated mission of safeguarding children’s welfare. Part I of this Article considers the state’s relationship with children and families, and the law’s recognition of the centrality of children’s primary caregivers — typically their parents — to children’s well-being. Part II critiques certain aspects of our legal system’s predominant response to child maltreatment. Part III reviews recent research on the effects of child maltreatment, with special attention to developmental neurobiological findings. Part IV discusses some implications of these findings for child protection policy and sets forth recommendations that are consistent with the empirical research and responsive to the critiques set forth in Part II.
{"title":"Developmental Neuroscience, Children's Relationships with Primary Caregivers, and Child Protection Policy Reform","authors":"L. A. Weithorn","doi":"10.2139/SSRN.2184049","DOIUrl":"https://doi.org/10.2139/SSRN.2184049","url":null,"abstract":"Empirical research has confirmed that the harms of child maltreatment can affect almost every area of an individual’s functioning and can reverberate across relationships, generations, and communities. Most recently, investigators at the U.S. Centers for Disease Control have called for policymakers to prioritize prevention and amelioration of child maltreatment in a manner consistent with its approach to other major public health problems. This Article — an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law and Stanford Law School — addresses some of the potential policy applications of research on the neurobiology of attachment, maltreatment, and trauma, with particular attention to the government’s articulated mission of safeguarding children’s welfare. Part I of this Article considers the state’s relationship with children and families, and the law’s recognition of the centrality of children’s primary caregivers — typically their parents — to children’s well-being. Part II critiques certain aspects of our legal system’s predominant response to child maltreatment. Part III reviews recent research on the effects of child maltreatment, with special attention to developmental neurobiological findings. Part IV discusses some implications of these findings for child protection policy and sets forth recommendations that are consistent with the empirical research and responsive to the critiques set forth in Part II.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"63 1","pages":"1487"},"PeriodicalIF":0.5,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67973751","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 paper addresses the peculiarities of issue preclusion in class action litigation, particularly after the approval of the American Law Institute’s Principles of the Law of Aggregate Litigation in 2010 and the U.S. Supreme Court decision of Smith v. Bayer Corp. in the summer of 2011. After discussing the reasons why orders that deny class certification cannot have issue-preclusive effect, this paper analyses proposals to address the problem.
{"title":"Issue Preclusion Effect of Class Certification Orders","authors":"Antonio Gidi","doi":"10.2139/SSRN.1942774","DOIUrl":"https://doi.org/10.2139/SSRN.1942774","url":null,"abstract":"This paper addresses the peculiarities of issue preclusion in class action litigation, particularly after the approval of the American Law Institute’s Principles of the Law of Aggregate Litigation in 2010 and the U.S. Supreme Court decision of Smith v. Bayer Corp. in the summer of 2011. After discussing the reasons why orders that deny class certification cannot have issue-preclusive effect, this paper analyses proposals to address the problem.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"63 1","pages":"1023"},"PeriodicalIF":0.5,"publicationDate":"2011-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67804581","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}
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary. This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes – what this piece dubs super-registration schemes – are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation. Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.
{"title":"The Evolution of Unconstitutionality in Sex Offender Registration Laws","authors":"C. Carpenter","doi":"10.2139/SSRN.1916726","DOIUrl":"https://doi.org/10.2139/SSRN.1916726","url":null,"abstract":"More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary. This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes – what this piece dubs super-registration schemes – are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation. Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"63 1","pages":"1071"},"PeriodicalIF":0.5,"publicationDate":"2011-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67783193","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}
Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is nonexistent or purely speculative. Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Drawing from cases holding that speech restrictions must be justified by an important or compelling governmental interest, this Article argues that the First Amendment requires real harm to the copyright holder’s incentives in order to impose liability. It also explores the types of harm that might arise in copyright infringement cases. It concludes that demonstrable harm of market substitution is cognizable under First Amendment principles. On the other hand, the First Amendment generally would not permit recognition of harm to the reputation of copyrighted works, or, except in cases of unpublished works, harm to an author or copyright holder’s privacy, right not to speak, or right not to associate.
{"title":"Copyright Infringement and Harmless Speech","authors":"Christina Bohannan","doi":"10.2139/SSRN.1367624","DOIUrl":"https://doi.org/10.2139/SSRN.1367624","url":null,"abstract":"Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is nonexistent or purely speculative. Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Drawing from cases holding that speech restrictions must be justified by an important or compelling governmental interest, this Article argues that the First Amendment requires real harm to the copyright holder’s incentives in order to impose liability. It also explores the types of harm that might arise in copyright infringement cases. It concludes that demonstrable harm of market substitution is cognizable under First Amendment principles. On the other hand, the First Amendment generally would not permit recognition of harm to the reputation of copyrighted works, or, except in cases of unpublished works, harm to an author or copyright holder’s privacy, right not to speak, or right not to associate.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"61 1","pages":"1083"},"PeriodicalIF":0.5,"publicationDate":"2010-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68170467","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}
According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s equity contribution to the franchise. After locating and interviewing Hoffmann, Whitford and Macaulay tell a different story. They view as insignificant the misunderstanding about the nature of Hoffmann’s equity contribution. Rather, they focus attention on additional statements urging Hoffmann to sell his bakery business and store. In these later statements, ignored by the Wisconsin Supreme Court, they find the “missing promise” that they challenged all of us to look for years ago. While I credit their account, I remain as unconvinced by their story as they are of mine. Thus, the important question is how scholars could draw such different inferences from the same basic facts. In this Essay, I speculate that the different stories are a product of our respective methodological commitments: their commitment to a law and society approach to legal issues and mine to law and economics modes of analysis. Those diverse approaches illustrate the tension between “context” and “theory” and the inherent paradox of legal analysis: without context no legal rule can be applied, but with nothing but context no legal rule can be found. For this reason, I conclude, it is important for legal academics of every stripe to appreciate the biases inherent in their methodology of choice and work to correct for them
{"title":"Hoffman v. Red Owl Stores and the Limits of the Legal Method","authors":"R. Scott","doi":"10.2139/SSRN.1494463","DOIUrl":"https://doi.org/10.2139/SSRN.1494463","url":null,"abstract":"According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s equity contribution to the franchise. After locating and interviewing Hoffmann, Whitford and Macaulay tell a different story. They view as insignificant the misunderstanding about the nature of Hoffmann’s equity contribution. Rather, they focus attention on additional statements urging Hoffmann to sell his bakery business and store. In these later statements, ignored by the Wisconsin Supreme Court, they find the “missing promise” that they challenged all of us to look for years ago. While I credit their account, I remain as unconvinced by their story as they are of mine. Thus, the important question is how scholars could draw such different inferences from the same basic facts. In this Essay, I speculate that the different stories are a product of our respective methodological commitments: their commitment to a law and society approach to legal issues and mine to law and economics modes of analysis. Those diverse approaches illustrate the tension between “context” and “theory” and the inherent paradox of legal analysis: without context no legal rule can be applied, but with nothing but context no legal rule can be found. For this reason, I conclude, it is important for legal academics of every stripe to appreciate the biases inherent in their methodology of choice and work to correct for them","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"61 1","pages":"859"},"PeriodicalIF":0.5,"publicationDate":"2009-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68187666","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 Note addresses the impact of the totality of circumstances test, as now adopted by the Federal Circuit, on covenants not to sue in the Declaratory Judgment (DJ) context. Under the old reasonable apprehension test, promises not to sue were given greater weight than under the new totality of the circumstances test. Part I of this Note addresses the new totality of the circumstances test under Medimmune and Sandisk. Part II of this Note compares the application of promises not to sue in pre-Medimmune and post-Medimmune decisions. Although the current case law does not indicate an extreme change from the pre-Medimmune decisions, the dicta in these cases indicates that a more extreme change may be forthcoming. Finally, Part III responds to a number of scholarly articles that have indicated disapproval of the Federal Circuit’s totality of the circumstances test by applying twofold analysis, taking into account exposed revenue and burdensome litigation costs, to four potential bargaining scenarios between hypothetical licensors and licensees.
{"title":"'Covenants Not to Sue' Provide Less Immunity in a Post-Medimmune World","authors":"Edo B. Royker","doi":"10.2139/ssrn.1478198","DOIUrl":"https://doi.org/10.2139/ssrn.1478198","url":null,"abstract":"This Note addresses the impact of the totality of circumstances test, as now adopted by the Federal Circuit, on covenants not to sue in the Declaratory Judgment (DJ) context. Under the old reasonable apprehension test, promises not to sue were given greater weight than under the new totality of the circumstances test. Part I of this Note addresses the new totality of the circumstances test under Medimmune and Sandisk. Part II of this Note compares the application of promises not to sue in pre-Medimmune and post-Medimmune decisions. Although the current case law does not indicate an extreme change from the pre-Medimmune decisions, the dicta in these cases indicates that a more extreme change may be forthcoming. Finally, Part III responds to a number of scholarly articles that have indicated disapproval of the Federal Circuit’s totality of the circumstances test by applying twofold analysis, taking into account exposed revenue and burdensome litigation costs, to four potential bargaining scenarios between hypothetical licensors and licensees.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"61 1","pages":"473"},"PeriodicalIF":0.5,"publicationDate":"2009-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185726","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 paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.
{"title":"Heller, High Water(mark)? Lower courts and the new right to keep and bear arms","authors":"Brannon P. Denning, G. Reynolds","doi":"10.2139/SSRN.1455989","DOIUrl":"https://doi.org/10.2139/SSRN.1455989","url":null,"abstract":"This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"60 1","pages":"1245-1245"},"PeriodicalIF":0.5,"publicationDate":"2009-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183208","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}
For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.
{"title":"The Procedural Annihilation of Structural Rights","authors":"Steven G. Gey","doi":"10.2139/SSRN.1429186","DOIUrl":"https://doi.org/10.2139/SSRN.1429186","url":null,"abstract":"For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called \"structural rights.\" The term \"structural rights\" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"61 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2009-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68179986","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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