Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every sub-section of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutia of AEDPA, the hallmarks of our legal system, basic due process and constitutional supremacy, have been overlooked. This Article aims to re-focus the debate. The application and discussion of AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: where the state post-conviction process does not provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254 – in working out all of the (e)(2)’s and the (d)(1)’s – we have forgotten due process. It is time to return to it. More than a century ago in Frank v. Magnum and Moore v. Dempsey, the Court recognized the critical role that federal habeas review must play in ensuring that basic constitutional criminal procedure rights were adjudicated in a minimally “full and fair” manner by state courts. To be sure this fair-process check on state adjudications was of minimal, even trivial, significance during the Brown v. Allen era when federal habeas was viewed by the Court as providing a virtually unchecked opportunity to rework the underlying merits of the state adjudication. But the limitations on federal habeas review born during the Rehnquist and Burger Courts and enhanced through the enactment of the AEDPA compel a reasoned revisiting of due process in this context. After surveying the law defining the minimum standards of due process in the context of adjudicating constitutional criminal procedure rights – the “full and fair” mandate – this paper recommends a reading of §2254 that is both faithful to due process and consistent with the goals of the AEDPA.
已经有无数的文章和司法意见致力于解读1996年《反恐怖主义和有效死刑法》(AEDPA)中宣布的人身保护令救济限制的范围和适用。在过去的十年里，法院和学者已经为§2254的几乎每一个小节开发了一个复杂的分析框架。长达十年的解释和评论过程的特点是法定意义和联邦制问题，这些问题对法院来说似乎是无法解决的，因为它们对学术界来说很有趣。但在匆忙整理AEDPA细节的过程中，我们法律体系的标志——基本的正当程序和宪法至上——被忽视了。本文旨在重新聚焦这场辩论。对AEDPA对救济的限制的适用和讨论已经演变成一场关于缺乏可发现意义的法规意义的激烈争论，更不用说明显或简单的意义了。它是法律的深奥主义或法律的混淆，而不是法律的解释。讨论已经变得如此技术性和专业化，更不用说政治上的两极化了，以至于我们有可能永远掩盖《伟大令状》的历史和宪法基础。本文的目的是重塑和简化人身保护辩论，并达成一些急需的共同点。论点很简单:如果州的定罪后程序没有提供一个有意义的纠正程序，使得联邦宪法问题没有得到“充分和公平”的裁决，那么联邦法院就有必要重新审查联邦索赔。这一适度的程序性建议是由一系列著名案例的正当程序所推动的，然而，在解释第2254条的狂热中——在制定所有(e)(2)和(d)(1)的过程中——我们忘记了正当程序。是时候回归了。一个多世纪以前，在弗兰克诉马格南案(Frank v. Magnum)和摩尔诉邓普西案(Moore v. Dempsey)中，最高法院认识到联邦人身保护审查在确保州法院以最低限度的“充分和公平”方式裁决基本宪法刑事诉讼权利方面必须发挥关键作用。可以肯定的是，在布朗诉艾伦案时代，这种对州裁决的公平程序审查的意义微乎其微，甚至微不足道，因为法院认为联邦人身保护令实际上提供了一个不受限制的机会，可以修改州裁决的潜在价值。但是，在伦奎斯特和伯格法院期间产生并通过AEDPA的颁布而加强的联邦人身保护令审查的限制迫使在这种情况下合理地重新审视正当程序。在调查了在裁决宪法刑事诉讼权利的背景下定义正当程序最低标准的法律-“充分和公平”授权-之后，本文建议对第2254条的解读既忠实于正当程序，又与AEDPA的目标一致。
{"title":"Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications","authors":"J. Marceau","doi":"10.2139/SSRN.1407682","DOIUrl":"https://doi.org/10.2139/SSRN.1407682","url":null,"abstract":"Countless articles and judicial opinions have been devoted to the task of deciphering the scope and application of the limitations on habeas corpus relief announced in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Over the past ten years courts and scholars have developed an intricate framework of analysis for nearly every sub-section of § 2254. The decade-long process of interpretation and commentary has been characterized by questions of statutory meaning and federalism that appear to be as irresolvable for courts as they are intriguing to academics. But in the rush to sort out the minutia of AEDPA, the hallmarks of our legal system, basic due process and constitutional supremacy, have been overlooked. This Article aims to re-focus the debate. The application and discussion of AEDPA’s limitations on relief has devolved into a bitter argument over the meaning of a statute which lacks a discoverable meaning, much less an obvious or plain meaning. It is statutory esotericism or statutory obfuscation much more than it is statutory interpretation. The discussion has become so technical and specialized, not to mention politically polarized, that we are at risk of permanently overshadowing the historical and constitutional underpinnings of the Great Writ. The goal of this Article is to recast and simplify the habeas debate and achieve some much needed common ground. The thesis is simple: where the state post-conviction process does not provide a meaningful corrective process such that federal constitutional issues are not “fully and fairly” adjudicated, it is necessary for the federal courts to review the federal claims de novo. This modest procedural proposal is compelled by due process through a celebrated line of cases, and yet in the frenzy to interpret § 2254 – in working out all of the (e)(2)’s and the (d)(1)’s – we have forgotten due process. It is time to return to it. More than a century ago in Frank v. Magnum and Moore v. Dempsey, the Court recognized the critical role that federal habeas review must play in ensuring that basic constitutional criminal procedure rights were adjudicated in a minimally “full and fair” manner by state courts. To be sure this fair-process check on state adjudications was of minimal, even trivial, significance during the Brown v. Allen era when federal habeas was viewed by the Court as providing a virtually unchecked opportunity to rework the underlying merits of the state adjudication. But the limitations on federal habeas review born during the Rehnquist and Burger Courts and enhanced through the enactment of the AEDPA compel a reasoned revisiting of due process in this context. After surveying the law defining the minimum standards of due process in the context of adjudicating constitutional criminal procedure rights – the “full and fair” mandate – this paper recommends a reading of §2254 that is both faithful to due process and consistent with the goals of the AEDPA.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"62 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2009-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176648","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}
An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant's unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant's unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and "specific restitution." This terminology obscures important concepts, such as that a plaintiff's asset-based remedy might be for a fund of money or that recovery of an asset might not constitute "specific" relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing "specific" about specific restitution. This article situates the term specific restitution within the larger context of how the term "specific" is used in the law, and it examines how scholars and courts have used "specific restitution." Finally, the article turns to the American Law Institute's ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term "specific restitution" and rely on the more accurate term "asset-based restitution."
{"title":"What is Specific about Specific Restitution","authors":"C. Murphy","doi":"10.2139/SSRN.1329099","DOIUrl":"https://doi.org/10.2139/SSRN.1329099","url":null,"abstract":"An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant's unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant's unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and \"specific restitution.\" This terminology obscures important concepts, such as that a plaintiff's asset-based remedy might be for a fund of money or that recovery of an asset might not constitute \"specific\" relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing \"specific\" about specific restitution. This article situates the term specific restitution within the larger context of how the term \"specific\" is used in the law, and it examines how scholars and courts have used \"specific restitution.\" Finally, the article turns to the American Law Institute's ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term \"specific restitution\" and rely on the more accurate term \"asset-based restitution.\"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"60 1","pages":"853"},"PeriodicalIF":0.5,"publicationDate":"2009-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68163767","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 article proposes replacing the federal estate and gift tax system with an accessions tax. An accessions tax is a tax, at progressive rates, on the aggregate lifetime gratuitous receipts of an individual in excess of a specified exemption. The main thesis of this article is that an accessions tax is not simply a reverse image of the current estate tax system, but is significantly different both in purpose and effect. An accessions tax should be an easier pill to swallow than the estate tax, because it is a tax on the unearned income (accessions to wealth) of individuals. In operation, the accessions tax can avoid many of the loopholes in the estate tax, because the accession can occur after the transferor's death. Accessions would be taxed only when realized in cash or assets that are not hard to value. Thus, only trust distributions (as opposed to the acquisition of trust interests) would be taxed. Accordingly, actuarial tables would be irrelevant, and general powers of appointment would be ignored. Taxation of qualified hard-to-value property (such as interests in a closely-held business) would be deferred to conversion to cash (or other event whereby qualification lapses). Accessions by charities and by the spouse of the transferor would be excluded, as would transactions (such as one person purchasing the consumption of another) that do not involve true wealth transfers. Elaborate qualification rules for the spousal and charitable exclusions would not be necessary.
{"title":"Replacing the Estate Tax with a Re-Imagined Accessions Tax","authors":"Joseph M. Dodge","doi":"10.2139/SSRN.1285515","DOIUrl":"https://doi.org/10.2139/SSRN.1285515","url":null,"abstract":"This article proposes replacing the federal estate and gift tax system with an accessions tax. An accessions tax is a tax, at progressive rates, on the aggregate lifetime gratuitous receipts of an individual in excess of a specified exemption. The main thesis of this article is that an accessions tax is not simply a reverse image of the current estate tax system, but is significantly different both in purpose and effect. An accessions tax should be an easier pill to swallow than the estate tax, because it is a tax on the unearned income (accessions to wealth) of individuals. In operation, the accessions tax can avoid many of the loopholes in the estate tax, because the accession can occur after the transferor's death. Accessions would be taxed only when realized in cash or assets that are not hard to value. Thus, only trust distributions (as opposed to the acquisition of trust interests) would be taxed. Accordingly, actuarial tables would be irrelevant, and general powers of appointment would be ignored. Taxation of qualified hard-to-value property (such as interests in a closely-held business) would be deferred to conversion to cash (or other event whereby qualification lapses). Accessions by charities and by the spouse of the transferor would be excluded, as would transactions (such as one person purchasing the consumption of another) that do not involve true wealth transfers. Elaborate qualification rules for the spousal and charitable exclusions would not be necessary.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"60 1","pages":"997"},"PeriodicalIF":0.5,"publicationDate":"2008-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68158065","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 : 2008-05-01DOI: 10.4324/9781315094205-17
D. McQuiston-Surrett, M. Saks
{"title":"Communicating opinion evidence in the forensic identification sciences: Accuracy and impact","authors":"D. McQuiston-Surrett, M. Saks","doi":"10.4324/9781315094205-17","DOIUrl":"https://doi.org/10.4324/9781315094205-17","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"59 1","pages":"1159-1189"},"PeriodicalIF":0.5,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629828","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}
Preliminary and permanent injunctions are routinely granted in trade secret cases without offending the First Amendment, and this is as it should be. In ordinary trade secret cases, injunctions merely require parties to abide by express or implicit agreements they have made, respect the confidences under which they acquired secrets, and refrain from wrongful conduct vis-a-vis the secrets. Occasionally, those who want to disclose trade secrets invoke the First Amendment as a defense to claims of trade secrecy misappropriation. Courts and commentators have taken varying positions on issues pertinent to these defenses, including whether trade secrecy law are categorically immune (or nearly so) from First Amendment scrutiny and whether preliminary injunctions forbidding disclosure of informational secrets should be considered prior restraints on speech. This article offers a set of principles for mediating the tensions that occasionally arise between trade secrets and the First Amendment. Part I seeks to explain why conflicts between trade secrecy law and the First Amendment have thus far been relatively rare. It discusses limiting principles of trade secrecy law that mediate most free-speech-related tensions likely to arise when someone wants to disclose information that another claims as a trade secret. Part II suggests that more conflicts between trade secret and First Amendment interests may occur, in part because of the increased use of mass-market licenses to keep information secret that would otherwise be lawful to acquire and disclose. It considers proposals to strengthen trade secret rights in response to threats to trade secrets posed by the global communications medium of the Internet. The stronger trade secret rights become, the more likely they are to come into conflict with First Amendment interests. Part III criticizes the California Supreme Court's decision in DVD CCA v. Bunner for, among other things, its implicit adoption of the categorical immunity theory and its reliance on DVD CCA's assertion of property rights in its secrets in rejecting Bunner's First Amendment defense. Part IV concludes that even though preliminary injunctions in informational trade secret cases are prior restraints, they are generally justified in ordinary cases. Yet the heavy presumption against prior restraints should apply to cases in which third parties who obtained the secret without wrongdoing seeks to disclose it publicly. Part IV considers a number of other First Amendment due process issues, such as whether the burden of proof in third-party disclosure cases should be higher than in the normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. Part IV proposes several principles to assist courts in grappling with First Amendment defenses in trade secrecy cases.
{"title":"Principles for Resolving Conflicts between Trade Secrets and the First Amendment","authors":"Pamela Samuelson","doi":"10.2139/SSRN.925056","DOIUrl":"https://doi.org/10.2139/SSRN.925056","url":null,"abstract":"Preliminary and permanent injunctions are routinely granted in trade secret cases without offending the First Amendment, and this is as it should be. In ordinary trade secret cases, injunctions merely require parties to abide by express or implicit agreements they have made, respect the confidences under which they acquired secrets, and refrain from wrongful conduct vis-a-vis the secrets. Occasionally, those who want to disclose trade secrets invoke the First Amendment as a defense to claims of trade secrecy misappropriation. Courts and commentators have taken varying positions on issues pertinent to these defenses, including whether trade secrecy law are categorically immune (or nearly so) from First Amendment scrutiny and whether preliminary injunctions forbidding disclosure of informational secrets should be considered prior restraints on speech. This article offers a set of principles for mediating the tensions that occasionally arise between trade secrets and the First Amendment. Part I seeks to explain why conflicts between trade secrecy law and the First Amendment have thus far been relatively rare. It discusses limiting principles of trade secrecy law that mediate most free-speech-related tensions likely to arise when someone wants to disclose information that another claims as a trade secret. Part II suggests that more conflicts between trade secret and First Amendment interests may occur, in part because of the increased use of mass-market licenses to keep information secret that would otherwise be lawful to acquire and disclose. It considers proposals to strengthen trade secret rights in response to threats to trade secrets posed by the global communications medium of the Internet. The stronger trade secret rights become, the more likely they are to come into conflict with First Amendment interests. Part III criticizes the California Supreme Court's decision in DVD CCA v. Bunner for, among other things, its implicit adoption of the categorical immunity theory and its reliance on DVD CCA's assertion of property rights in its secrets in rejecting Bunner's First Amendment defense. Part IV concludes that even though preliminary injunctions in informational trade secret cases are prior restraints, they are generally justified in ordinary cases. Yet the heavy presumption against prior restraints should apply to cases in which third parties who obtained the secret without wrongdoing seeks to disclose it publicly. Part IV considers a number of other First Amendment due process issues, such as whether the burden of proof in third-party disclosure cases should be higher than in the normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. Part IV proposes several principles to assist courts in grappling with First Amendment defenses in trade secrecy cases.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"58 1","pages":"777"},"PeriodicalIF":0.5,"publicationDate":"2006-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.925056","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67886913","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 : 2006-01-01DOI: 10.1093/law/9780199657131.003.0023
William W. Park, A. Yanos
Pacta sunt servanda 1 Introduction In determining the effect of treaties, the adage pacta sunt servanda (" agreements are to be kept ") 2 remains a foundation of international law. 3 By contrast, when American courts consider international conventions, the principle barely rises to the rank of analytic starting point.
{"title":"Treaty Obligations and National Law: Emerging Conflicts in International Arbitration","authors":"William W. Park, A. Yanos","doi":"10.1093/law/9780199657131.003.0023","DOIUrl":"https://doi.org/10.1093/law/9780199657131.003.0023","url":null,"abstract":"Pacta sunt servanda 1 Introduction In determining the effect of treaties, the adage pacta sunt servanda (\" agreements are to be kept \") 2 remains a foundation of international law. 3 By contrast, when American courts consider international conventions, the principle barely rises to the rank of analytic starting point.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"58 1","pages":"251"},"PeriodicalIF":0.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61410482","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 article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the adversarial tradition of adult criminal court. Instead, as the Court's administrative procedure cases illustrate, fundamental fairness theory aims at constructing the procedural framework that best promotes fairness, accuracy and efficiency in the setting in question. Social science, and in particular procedural justice research, can play an important role in fashioning this framework, because it can empirically examine various procedural mechanisms, in various settings, with these objectives in mind. To date, procedural justice research suggests that the procedures associated with the adult criminal process are not optimal even in that setting, much less in a regime focused on rehabilitating or punishing children. We propose a performance-based management system for implementing these legal and scientific insights in the juvenile justice context.
{"title":"Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science","authors":"M. Fondacaro, C. Slobogin, T. Cross","doi":"10.2139/SSRN.786666","DOIUrl":"https://doi.org/10.2139/SSRN.786666","url":null,"abstract":"This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the adversarial tradition of adult criminal court. Instead, as the Court's administrative procedure cases illustrate, fundamental fairness theory aims at constructing the procedural framework that best promotes fairness, accuracy and efficiency in the setting in question. Social science, and in particular procedural justice research, can play an important role in fashioning this framework, because it can empirically examine various procedural mechanisms, in various settings, with these objectives in mind. To date, procedural justice research suggests that the procedures associated with the adult criminal process are not optimal even in that setting, much less in a regime focused on rehabilitating or punishing children. We propose a performance-based management system for implementing these legal and scientific insights in the juvenile justice context.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"57 1","pages":"955"},"PeriodicalIF":0.5,"publicationDate":"2005-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67828075","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 Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion. This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness. Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality. Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy.
{"title":"Free Exercise and the Problem of Symmetry","authors":"N. Tebbe","doi":"10.31228/osf.io/s8xpc","DOIUrl":"https://doi.org/10.31228/osf.io/s8xpc","url":null,"abstract":"This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion. This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness. Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality. Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"56 1","pages":"699"},"PeriodicalIF":0.5,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640651","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":"Lifting the Veil of Ignorance: Toward a Culturally Conscious Account of Human Rights for Women in Post-September 11 America","authors":"C. Powell","doi":"10.2139/ssrn.667463","DOIUrl":"https://doi.org/10.2139/ssrn.667463","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67789261","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 article discusses five views of the Slaughter-House Cases: 1) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the States by the Privileges and Immunities Clause of the Fourteenth Amendment; 2) that Justice Miller rejected incorporation through the Privileges and Immunities Clause; 3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; 4) that the Slaughter-House Cases should be reexamined and overturned by the modern court; and 5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment is interpreted. The article's main points are: 1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case. 2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express. 3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty. 4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance. 5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy. 6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important val
{"title":"Slaughter-House Five: Views of the Case","authors":"D. Bogen","doi":"10.2139/SSRN.452102","DOIUrl":"https://doi.org/10.2139/SSRN.452102","url":null,"abstract":"This article discusses five views of the Slaughter-House Cases: 1) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the States by the Privileges and Immunities Clause of the Fourteenth Amendment; 2) that Justice Miller rejected incorporation through the Privileges and Immunities Clause; 3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; 4) that the Slaughter-House Cases should be reexamined and overturned by the modern court; and 5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment is interpreted. The article's main points are: 1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case. 2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express. 3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty. 4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance. 5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy. 6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important val","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"55 1","pages":"333"},"PeriodicalIF":0.5,"publicationDate":"2003-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735279","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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