Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product considered reasonable, and therefore non-defective, at the time of trial, but should have been considered unreasonable, and therefore defective, at the time of its distribution? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The answer offered by this Article is yes, on both efficiency and corrective justice grounds. The Article also proposes the adoption, in certain cases, of an “Alternative Liability Rule,” whereby an injurer bears liability if his behavior is either ex-post or ex-ante wrong.Thus far, there are no reported cases where a plaintiff brought suit for ex-post reasonable but ex-ante unreasonable behavior or products. This is puzzling, especially given the abundance of reverse cases before the courts, where the defendant’s behavior or product is found to be ex-post unreasonable but ex-ante reasonable, and liability is not imposed. The Article’s explanation for the lack of suits for ex-post right but ex-ante wrong behavior is plaintiffs’ and their attorneys’ strong belief that when a behavior, or a product, is considered reasonable at the time of trial, it is considered reasonable by the law. The claim made in the Article is that this belief is unfounded and a plaintiff who proves ex-ante negligence should succeed at trial, regardless of whether the defendant’s behavior is considered reasonable at that time.
{"title":"Ex-Post Right, Ex-Ante Wrong","authors":"A. Porat","doi":"10.2139/SSRN.2172932","DOIUrl":"https://doi.org/10.2139/SSRN.2172932","url":null,"abstract":"Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product considered reasonable, and therefore non-defective, at the time of trial, but should have been considered unreasonable, and therefore defective, at the time of its distribution? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The answer offered by this Article is yes, on both efficiency and corrective justice grounds. The Article also proposes the adoption, in certain cases, of an “Alternative Liability Rule,” whereby an injurer bears liability if his behavior is either ex-post or ex-ante wrong.Thus far, there are no reported cases where a plaintiff brought suit for ex-post reasonable but ex-ante unreasonable behavior or products. This is puzzling, especially given the abundance of reverse cases before the courts, where the defendant’s behavior or product is found to be ex-post unreasonable but ex-ante reasonable, and liability is not imposed. The Article’s explanation for the lack of suits for ex-post right but ex-ante wrong behavior is plaintiffs’ and their attorneys’ strong belief that when a behavior, or a product, is considered reasonable at the time of trial, it is considered reasonable by the law. The claim made in the Article is that this belief is unfounded and a plaintiff who proves ex-ante negligence should succeed at trial, regardless of whether the defendant’s behavior is considered reasonable at that time.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2012-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77399316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court's decision denying certification of a class action in Wal-Mart Stores, Inc. v. Dukes elicited a strong dissent from Justice Ginsburg, and widespread criticism in liberal circles, but in several important respects, the decision was unanimous. All the Justices agreed that a class action could not be certified under Federal Rule of Civil Procedure 23(b)(2), the rule which governs class actions in which injunctive relief is "appropriate respecting the class as a whole." The holding that divided the Justices concerned the failure of the plaintiffs’ case to meet the requirement of Rule 23(a)(2) that there were "questions of law or fact common to the class." Yet even on this issue there were points of apparent agreement, and one of them was the need to inquire into the merits to determine whether the prerequisites to certification were satisfied. This article begins by situating this widely accepted observation in the context of perennial disputes over substance and procedure in class actions. It then turns to the question of where to put certification decisions in the structure of pretrial litigation: in pleading, discovery, or summary judgment. That inquiry, in turn, leads to the larger question of how to reform class action procedure. Looking to the merits provides a way to differentiate among class actions, both in fine-grained analysis of particular claims and in broad terms defined by different areas of law. The cases and commentary on class actions presume that class actions must be divided into conventional categories, such as mass torts, consumer class actions, civil rights claims, and securities class actions, but they provide little more than a pragmatic justification for this division. A look at the merits was tacitly accepted as the premise of most analyses of class actions before Wal-Mart. This article provides a theoretical justification for doing so -- at the level of legal doctrine, based on the relationship between the substance of a claim and the requirements of Rule 23, and at the level of optimal enforcement, by identifying cases in which the expense of aggregate litigation yields gains in the basic goals of compensation, deterrence, and efficient litigation.
{"title":"The Way Forward after Wal-Mart","authors":"G. Rutherglen","doi":"10.2139/SSRN.2147955","DOIUrl":"https://doi.org/10.2139/SSRN.2147955","url":null,"abstract":"The Supreme Court's decision denying certification of a class action in Wal-Mart Stores, Inc. v. Dukes elicited a strong dissent from Justice Ginsburg, and widespread criticism in liberal circles, but in several important respects, the decision was unanimous. All the Justices agreed that a class action could not be certified under Federal Rule of Civil Procedure 23(b)(2), the rule which governs class actions in which injunctive relief is \"appropriate respecting the class as a whole.\" The holding that divided the Justices concerned the failure of the plaintiffs’ case to meet the requirement of Rule 23(a)(2) that there were \"questions of law or fact common to the class.\" Yet even on this issue there were points of apparent agreement, and one of them was the need to inquire into the merits to determine whether the prerequisites to certification were satisfied. This article begins by situating this widely accepted observation in the context of perennial disputes over substance and procedure in class actions. It then turns to the question of where to put certification decisions in the structure of pretrial litigation: in pleading, discovery, or summary judgment. That inquiry, in turn, leads to the larger question of how to reform class action procedure. Looking to the merits provides a way to differentiate among class actions, both in fine-grained analysis of particular claims and in broad terms defined by different areas of law. The cases and commentary on class actions presume that class actions must be divided into conventional categories, such as mass torts, consumer class actions, civil rights claims, and securities class actions, but they provide little more than a pragmatic justification for this division. A look at the merits was tacitly accepted as the premise of most analyses of class actions before Wal-Mart. This article provides a theoretical justification for doing so -- at the level of legal doctrine, based on the relationship between the substance of a claim and the requirements of Rule 23, and at the level of optimal enforcement, by identifying cases in which the expense of aggregate litigation yields gains in the basic goals of compensation, deterrence, and efficient litigation.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81638158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court’s jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation — that a right is not fundamental — or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court’s jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court’s theory of selective incorporation more justifiable.
{"title":"Nonincorporation: The Bill of Rights after McDonald v. Chicago","authors":"Suja A. Thomas","doi":"10.2139/SSRN.2000435","DOIUrl":"https://doi.org/10.2139/SSRN.2000435","url":null,"abstract":"Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court’s jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation — that a right is not fundamental — or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court’s jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court’s theory of selective incorporation more justifiable.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2012-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86180090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
87 Notre Dame Law Review 1917 (2012).This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991–2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school and school voucher programs, both fall comfortably within the broader rubric of “school choice.” As such, it is difficult to understand the development of state legislation for one school choice variant independent of the other. Thus, this analysis includes the presence of publicly- or privately-funded voucher programs in a state as a possible factor influencing the adoption of charter school legislation in a state. Second, a methodological contribution emerges by comparing results generated by a complementary log-log model with results generated by a rare event logistic regression model. That school voucher programs’ influence on the emergence of state charter schools laws is robust across both models underscores school voucher programs’ salience to the emergence of charter school legislation. Understanding the emergence of charter school legislation as a defensive political move to deflect school voucher progress or a political compromise finds support in these results. Either interpretation of the emergence of charter schools’ ascendance, however, needs to account for the school voucher programs’ influence as well as important suburban political and economic interests.
87 Notre Dame Law Review 1917(2012)。本研究利用事件历史分析来帮助解释1991-2006年间公立特许学校立法的扩张。这项研究在两个重要方面扩展了之前的工作。首先，尽管公立特许学校和学校代金券计划之间存在着重要的区别，但它们都属于“择校”这一更广泛的范畴。因此，很难理解一种学校选择变体独立于另一种的州立法的发展。因此，这一分析包括在一个州存在的公共或私人资助的代金券计划，作为一个可能的因素影响特许学校立法在一个州的采用。其次，通过比较由互补对数-对数模型产生的结果与由罕见事件逻辑回归模型产生的结果，出现了方法上的贡献。学校券计划对州特许学校法律的产生的影响在两种模式中都很强大，这强调了学校券计划对特许学校立法的出现的重要性。将特许学校立法的出现理解为一种防御性的政治举动，以转移教育券的进展或政治妥协，这些结果得到了支持。然而，对特许学校崛起的任何一种解释，都需要考虑到教育券计划的影响，以及重要的郊区政治和经济利益。
{"title":"Law and Policy Entrepreneurs: Empirical Evidence on the Expansion of School Choice Policy","authors":"Michael Heise","doi":"10.31228/osf.io/d3vpt","DOIUrl":"https://doi.org/10.31228/osf.io/d3vpt","url":null,"abstract":"87 Notre Dame Law Review 1917 (2012).This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991–2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school and school voucher programs, both fall comfortably within the broader rubric of “school choice.” As such, it is difficult to understand the development of state legislation for one school choice variant independent of the other. Thus, this analysis includes the presence of publicly- or privately-funded voucher programs in a state as a possible factor influencing the adoption of charter school legislation in a state. Second, a methodological contribution emerges by comparing results generated by a complementary log-log model with results generated by a rare event logistic regression model. That school voucher programs’ influence on the emergence of state charter schools laws is robust across both models underscores school voucher programs’ salience to the emergence of charter school legislation. Understanding the emergence of charter school legislation as a defensive political move to deflect school voucher progress or a political compromise finds support in these results. Either interpretation of the emergence of charter schools’ ascendance, however, needs to account for the school voucher programs’ influence as well as important suburban political and economic interests.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82098947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept at holding private contractors to constitutional norms or utterly moribund. A common theme that appears in the vast literature on privatization, therefore, is accountability. There is no recognized constitutional theory that meaningfully prohibits Congress or the President from transferring significant amounts of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution, and there is relatively sparse scholarly analysis of the subject. This Article searches for a constitutional principle that could be employed to address hypothetical outsourcing arrangements that go too far for the American appetite. In that pursuit, it looks to the law governing independent agencies as a natural starting point for evaluating the propriety of outsourcing relationships from the standpoint of the structural Constitution. It then introduces two ideas with an eye toward sparking fresh thinking about the constitutionality of privatization: first, the notion that all actors exercising federal government power should be viewed along a constitutional continuum and not as occupying separate private/public spheres; and, second, that a democratic accountability principle may be derived from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, as a constitutional hook for addressing government-by-contract gone awry.
{"title":"Government by Contract and the Structural Constitution","authors":"K. N. Brown","doi":"10.2139/SSRN.2057988","DOIUrl":"https://doi.org/10.2139/SSRN.2057988","url":null,"abstract":"Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept at holding private contractors to constitutional norms or utterly moribund. A common theme that appears in the vast literature on privatization, therefore, is accountability. There is no recognized constitutional theory that meaningfully prohibits Congress or the President from transferring significant amounts of discretionary governmental power to wholly private entities that operate beyond the purview of the Constitution, and there is relatively sparse scholarly analysis of the subject. This Article searches for a constitutional principle that could be employed to address hypothetical outsourcing arrangements that go too far for the American appetite. In that pursuit, it looks to the law governing independent agencies as a natural starting point for evaluating the propriety of outsourcing relationships from the standpoint of the structural Constitution. It then introduces two ideas with an eye toward sparking fresh thinking about the constitutionality of privatization: first, the notion that all actors exercising federal government power should be viewed along a constitutional continuum and not as occupying separate private/public spheres; and, second, that a democratic accountability principle may be derived from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, as a constitutional hook for addressing government-by-contract gone awry.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2012-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73167492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay prepared for the Wisconsin Law Review’s symposium on Intergenerational Equity lays the groundwork for a broader understanding of the goals of IP law in the United States by arguing that there is room for a normative commitment to intergenerational justice. First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress; courts’ and scholars’ overwhelming acceptance of the utilitarian approach reflects nothing more than a modern policy choice. Second, we argue that acceptance of the utilitarian frame has led too easily to reliance on markets as the exclusive mechanism for achieving Progress, which has had a dramatic impact on the path of IP law and discourse. Specifically, we argue that, because it relies so heavily on the market, and because the market is inherently short-sighted, IP is less future regarding than it could be. This is disappointing because the subject matter of IP makes it particularly susceptible to the promotion of intergenerational progress. In the end, we conclude that a commitment to intergenerational justice is both compatible with Progress and normatively attractive.
{"title":"Intergenerational Progress","authors":"Mark Mckenna, Brett M. Frischmann","doi":"10.2139/ssrn.1810943","DOIUrl":"https://doi.org/10.2139/ssrn.1810943","url":null,"abstract":"This Essay prepared for the Wisconsin Law Review’s symposium on Intergenerational Equity lays the groundwork for a broader understanding of the goals of IP law in the United States by arguing that there is room for a normative commitment to intergenerational justice. First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress; courts’ and scholars’ overwhelming acceptance of the utilitarian approach reflects nothing more than a modern policy choice. Second, we argue that acceptance of the utilitarian frame has led too easily to reliance on markets as the exclusive mechanism for achieving Progress, which has had a dramatic impact on the path of IP law and discourse. Specifically, we argue that, because it relies so heavily on the market, and because the market is inherently short-sighted, IP is less future regarding than it could be. This is disappointing because the subject matter of IP makes it particularly susceptible to the promotion of intergenerational progress. In the end, we conclude that a commitment to intergenerational justice is both compatible with Progress and normatively attractive.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2011-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78092038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. Using a law and economics approach, this Article draws out the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule actually encourages police harassment of ordinary citizens, particularly minorities; and second, when applied at trial, the rule decreases the benefit of the doubt that defendants who are most likely to be actually innocent can receive. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem.
{"title":"The Law and Economics of the Exclusionary Rule","authors":"Tonja Jacobi","doi":"10.2139/SSRN.1783863","DOIUrl":"https://doi.org/10.2139/SSRN.1783863","url":null,"abstract":"The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. Using a law and economics approach, this Article draws out the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule actually encourages police harassment of ordinary citizens, particularly minorities; and second, when applied at trial, the rule decreases the benefit of the doubt that defendants who are most likely to be actually innocent can receive. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2011-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72916637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the last few years, and mostly unnoticed, courts have adopted a radically different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, courts have side-stepped it entirely. Courts have done so by redefining the definition of extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, last term, the U.S. Supreme Court breathed life into the practice. In its landmark Morrison v. National Australia Bank decision, the Court suggested that legislation focused on domestic conditions may not be extraterritorial, even if the legislation regulates overseas foreign activity. This Essay laments the birth of this troubling new approach, where established law is jettisoned and legislative jurisdiction analysis is evaded. The Essay’s aim is largely descriptive: it summarizes an important development and reveals how courts have lapsed into error. But it goes beyond the descriptive to also critique the new practice. Redefining extraterritoriality not only subverts established doctrine; it removes an important safeguard to the difficulties that extraterritorial regulation creates. More problematically, the practice undercuts principles that have been foundational in both domestic and international law.
{"title":"Evading Legislative Jurisdiction","authors":"Austen L. Parrish","doi":"10.2139/SSRN.1762138","DOIUrl":"https://doi.org/10.2139/SSRN.1762138","url":null,"abstract":"In the last few years, and mostly unnoticed, courts have adopted a radically different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, courts have side-stepped it entirely. Courts have done so by redefining the definition of extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, last term, the U.S. Supreme Court breathed life into the practice. In its landmark Morrison v. National Australia Bank decision, the Court suggested that legislation focused on domestic conditions may not be extraterritorial, even if the legislation regulates overseas foreign activity. This Essay laments the birth of this troubling new approach, where established law is jettisoned and legislative jurisdiction analysis is evaded. The Essay’s aim is largely descriptive: it summarizes an important development and reveals how courts have lapsed into error. But it goes beyond the descriptive to also critique the new practice. Redefining extraterritoriality not only subverts established doctrine; it removes an important safeguard to the difficulties that extraterritorial regulation creates. More problematically, the practice undercuts principles that have been foundational in both domestic and international law.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2011-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73361650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures? The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself. Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.
{"title":"The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers","authors":"Mark L. Rienzi","doi":"10.2139/SSRN.1749788","DOIUrl":"https://doi.org/10.2139/SSRN.1749788","url":null,"abstract":"The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures? The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself. Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2011-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86744597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2011-01-01DOI: 10.4337/9781781954935.00007
Mark Mckenna
{"title":"Creativity and the Law","authors":"Mark Mckenna","doi":"10.4337/9781781954935.00007","DOIUrl":"https://doi.org/10.4337/9781781954935.00007","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80953756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：