{"title":"1. The Medieval Beginnings of Our Lady’s Tumbler","authors":"\t\t\t\t(six-volume set)\t\t\tJ. Ziolkowski","doi":"10.11647/OBP.0132.01","DOIUrl":"https://doi.org/10.11647/OBP.0132.01","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90969762","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}
{"title":"5. A Troupe of Sources and Analogues","authors":"\t\t\t\t(six-volume set)\t\t\tJ. Ziolkowski","doi":"10.11647/obp.0132.05","DOIUrl":"https://doi.org/10.11647/obp.0132.05","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78695456","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 articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.
{"title":"Securities Law in the Sixties: The Supreme Court, the Second Circuit, and the Triumph of Purpose Over Text","authors":"A. Pritchard, R. Thompson","doi":"10.2139/SSRN.3119969","DOIUrl":"https://doi.org/10.2139/SSRN.3119969","url":null,"abstract":"This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86671954","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 death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created state-wide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.
美国的死刑正在减少，而且大多数实行死刑的州并不经常判处死刑。2016年和2017年，各州判处死刑的数量降至现代最低水平，2016年和2017年分别只有31名和39名被告被判处死刑，而上世纪90年代每年有300多名被告被判处死刑。2016年，只有13个州判处死刑，2017年有14个州判处死刑，尽管有31个州保留死刑。如何解释这一引人注目且出乎意料的趋势?在本文中，我们对可能影响死刑判决的州级立法变化进行了新的分析。首先，现在几乎每个州都颁布了终身无假释(LWOP)法规，这可能会减少死刑判决，因为它们给陪审员在审判中提供了一个非死刑的选择。其次，尽管速度不同，但立法机构已经采取行动，以遵守最高法院在Ring v. Arizona一案中的裁决，该裁决要求死刑判决的最终决定权不是由法官，而是由陪审团。第三，各州在不同时期设立了全州范围内的公设辩护人办公室，在审判中代表死刑被告。此外，杀人和凶杀率的下降预计将有助于降低州一级的死刑判决。我们发现，与许多观察员的预期相反，法律的变化，如采用LWOP和陪审团判决，并没有始终如一地或显著地影响死刑判决。杀人案和凶杀率的下降与州一级死刑判决的变化有关。然而，本文发现，与其他因素相比，国家提供死刑审判代理与减少死刑判决的相关性要强得多。调查结果支持这样一种论点，即是否有充足的律师比其他法律因素对执行死刑的影响更大。这些调查结果还具有死刑以外的影响，它们强调了在我们的刑事司法制度中对第六修正案的律师权利进行结构性理解的重要性。
{"title":"The State of the Death Penalty","authors":"A. Desai, Brandon L. Garrett","doi":"10.2139/SSRN.3124455","DOIUrl":"https://doi.org/10.2139/SSRN.3124455","url":null,"abstract":"The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences. First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial. Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury. Third, states at different times have created state-wide public defender offices to represent capital defendants at trial. In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing. We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level. However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors. The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors. These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82139550","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 has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.
{"title":"Due Process, Free Expression, and the Administrative State","authors":"Martin H. Redish, K. McCall","doi":"10.2139/SSRN.3122697","DOIUrl":"https://doi.org/10.2139/SSRN.3122697","url":null,"abstract":"The Supreme Court has long imposed on the judiciary a due process requirement of neutrality. Any temptation to the reasonable judge to decide a case other than on its merits is deemed unconstitutional, even in the absence of any showing of actual bias. The Court has been wisely willing to risk over-enforcement of the neutral adjudicator requirement, rather than under-enforcement. In the administrative context, however, the Court has imposed the exact opposite presumption: that absent a clear showing of bias, administrative adjudicators will be assumed to satisfy due process, even though they are part of the very agency instituting the adversary proceeding and will often have played a direct role in the institution of the proceeding. This Article argues that because of their built-in connections to the interests of the agencies for which they work, administrators should be deemed at least as inherently suspect, for due process purposes, as are judges. As in judicial proceedings, property or other constitutional rights may well be at stake, and due process protections are triggered equally in both contexts. The Article acknowledges the practical reality that many will consider it simply too late in the day to force so sweeping revisions in the administrative process, despite the serious constitutional problems it raises. Therefore as a second line of attack, the Article argues that a categorical exception be made to the blanket assumption of administrative adjudicatory neutrality for those cases challenging the constitutionality of agency action. In such situations, the administrators’ connection to their own agencies renders them inherently ill-equipped to neutrally adjudicate such challenges. This is particularly so, the Article argues, when First Amendment rights of free expression are implicated. Because of their simultaneous importance and fragility, the Article argues that plausible claims that proposed agency adjudicatory action will contravene a regulated party’s First Amendment rights should be allowed to reach the courts prior to the conduct of the administrative proceeding.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89582725","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}
S. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo
This law review article describes what individual rights are protected under state constitutional law today in 2018; in 1868 when the Fourteenth Amendment was ratified; and in 1791, when the federal Bill of Rights was ratified. We seek to offer a picture over time as to what rights have gone into style and what rights have fallen out of style over the last 227 years. State constitutions are much easier to amend than is the federal constitution, so they provide a good sociological vantage point from which to assess rights. Moreover, since most originalists think that rights should be deeply rooted in history and tradition, as the U.S. Supreme Court held in Washington v. Glucksberg, the 1791 and 1868 data ought to be of interest to them. In contrast, the 2018 data should be of interest to advocates of a living constitution.
{"title":"Individual Rights under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States?","authors":"S. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo","doi":"10.2139/SSRN.3120522","DOIUrl":"https://doi.org/10.2139/SSRN.3120522","url":null,"abstract":"This law review article describes what individual rights are protected under state constitutional law today in 2018; in 1868 when the Fourteenth Amendment was ratified; and in 1791, when the federal Bill of Rights was ratified. We seek to offer a picture over time as to what rights have gone into style and what rights have fallen out of style over the last 227 years. State constitutions are much easier to amend than is the federal constitution, so they provide a good sociological vantage point from which to assess rights. Moreover, since most originalists think that rights should be deeply rooted in history and tradition, as the U.S. Supreme Court held in Washington v. Glucksberg, the 1791 and 1868 data ought to be of interest to them. In contrast, the 2018 data should be of interest to advocates of a living constitution.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2018-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88958075","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 brief essay reviews some of the most significant developments in trademark law during the past year. In most cases we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of § 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of § 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of BB (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.
{"title":"2016 Trademark Year in Review","authors":"Mark Mckenna, S. Niemann","doi":"10.2139/SSRN.2886627","DOIUrl":"https://doi.org/10.2139/SSRN.2886627","url":null,"abstract":"This brief essay reviews some of the most significant developments in trademark law during the past year. In most cases we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of § 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of § 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of BB (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86139677","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}
INTRODUCTION In Washington v. Trump, (1) the Ninth Circuit decision on the Administration's executive order on immigration, (2) a critical moment occurred when the panel had to explain why the order was reviewable at all. Precedents like Kleindienst v. Mandel (3) had said that "when the Executive exercises [immigration authority] on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion." (4) The panel's response was to invoke an important distinction between the reviewability of general rules, on the one hand, and the reviewability of specific applications, on the other: [T]he Mandel standard applies to lawsuits challenging an executive branch official's decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President's promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard. (5) As we will see, this conception of reviewability (6)--keyed to a distinction between general policies or rules and specific applications, with the former subject to review even if the latter would not be--is one that Justice Scalia wrestled with throughout his reviewability jurisprudence. Yet it is more or less directly the opposite of Justice Scalia's own conception. Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that "general programs" and "general policies" are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties. Notice that there are actually three possible subjects of review in play here: nonbinding policies and rules (such as "interpretive" rules); binding general rules ("legislative rules"); and applications. More on this shortly. For now, the focus is on the distinction between review of general and specific agency action, whether that action is embodied in a legally binding rule or in a nonbinding policy. The approach featured in Washington v. Trump, by contrast, was propounded in several opinions by Justice John Paul Stevens. On that view, agencies should be more afforded more, not less, discretion to apply policies or rules in particular cases, whereas the proper business of the judiciary is to review the general legality of overall programs, policies, and rules. The Scalia view and the Stevens view obviously differ on the proper role of courts in an overall system of administrative law. For J
在华盛顿诉特朗普案中，(1)第九巡回法院对政府移民行政命令的裁决，(2)当小组必须解释为什么该命令是可审查的时候，出现了一个关键时刻。克莱因登斯特诉曼德尔案(Kleindienst v. Mandel)等先例曾说过，“当行政部门基于表面上合法和善意的理由行使[移民权力]时，法院将[不]追究这种自由裁量权的行使。”(4)专家组的回应是援引一般规则的可审查性与具体申请的可审查性之间的重要区别:曼德尔标准适用于挑战行政部门官员根据国会列举的标准对该签证申请所提出的特定事实签发或拒绝个人签证的决定的诉讼。相比之下，本案的问题不是将具体列举的国会政策适用于个别签证申请中提出的具体事实。相反，各州正在挑战总统颁布的全面移民政策。在政治部门的最高层行使决策权显然不受曼德尔标准的约束。(5)正如我们将看到的，可复审性的概念(6)——关键在于一般政策或规则与具体应用之间的区别，即使后者不受审查，前者也要接受审查——是斯卡利亚大法官在其可复审性法理学中一直在努力解决的问题。然而，这或多或少与斯卡利亚大法官自己的观点完全相反。斯卡利亚大法官对可审查性问题提出了一种一致的方法:粗略地说，“一般项目”和“一般政策”应排除在司法审查之外，甚至一般和具有法律约束力的机构规则在执行前可能可审查，也可能不可审查。根据这种方法，法院的适当工作是审查机构规则对特定当事人的具体适用。请注意，这里实际上有三种可能的审查主题:非约束性策略和规则(例如“解释性”规则);有约束力的一般规则(“立法规则”);和应用程序。稍后会详细介绍。目前，重点是区分对一般和具体机构行动的审查，无论这种行动是体现在具有法律约束力的规则中还是体现在不具有法律约束力的政策中。相比之下，在华盛顿诉特朗普案中，大法官约翰·保罗·史蒂文斯(John Paul Stevens)在几份意见中提出了这种做法。根据这一观点，各机构应该被赋予更多而不是更少的自由裁量权，以便在特定情况下适用政策或规则，而司法机构的正当业务是审查总体计划、政策和规则的一般合法性。斯卡利亚的观点和史蒂文斯的观点在法院在整个行政法体系中的适当作用问题上明显不同。对于史蒂文斯大法官来说，法院的作用是说明一般法律规则是什么，让机构(合理的)自由裁量权在应用中。对斯卡利亚大法官来说，法院的作用是裁决案件，只有在对这一职能有必要的情况下才审查规则的合法性——这是裁决案件的副产品。此外，这两种方法在可复审性与“法治最好被理解为一种规则的法律”这一观点(也许是斯卡利亚大法官对法律理论最著名的贡献)之间的关系上存在差异。(7)根据史蒂文斯的观点，可审查性应试图确保法院审查项目和政策的整体合法性，以使行政国家保持在法治的广泛范围内。(8)根据这种观点，“法治”是一种“规则之法”，在这个意义上说，说什么是法律的司法权意味着审查一般规则合法性的权力。相反，在斯卡利亚看来，法治是一种完全不同意义上的规则之法。．..
{"title":"Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia","authors":"Adrian Vermeule","doi":"10.2139/SSRN.3004071","DOIUrl":"https://doi.org/10.2139/SSRN.3004071","url":null,"abstract":"INTRODUCTION In Washington v. Trump, (1) the Ninth Circuit decision on the Administration's executive order on immigration, (2) a critical moment occurred when the panel had to explain why the order was reviewable at all. Precedents like Kleindienst v. Mandel (3) had said that \"when the Executive exercises [immigration authority] on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.\" (4) The panel's response was to invoke an important distinction between the reviewability of general rules, on the one hand, and the reviewability of specific applications, on the other: [T]he Mandel standard applies to lawsuits challenging an executive branch official's decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President's promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard. (5) As we will see, this conception of reviewability (6)--keyed to a distinction between general policies or rules and specific applications, with the former subject to review even if the latter would not be--is one that Justice Scalia wrestled with throughout his reviewability jurisprudence. Yet it is more or less directly the opposite of Justice Scalia's own conception. Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that \"general programs\" and \"general policies\" are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties. Notice that there are actually three possible subjects of review in play here: nonbinding policies and rules (such as \"interpretive\" rules); binding general rules (\"legislative rules\"); and applications. More on this shortly. For now, the focus is on the distinction between review of general and specific agency action, whether that action is embodied in a legally binding rule or in a nonbinding policy. The approach featured in Washington v. Trump, by contrast, was propounded in several opinions by Justice John Paul Stevens. On that view, agencies should be more afforded more, not less, discretion to apply policies or rules in particular cases, whereas the proper business of the judiciary is to review the general legality of overall programs, policies, and rules. The Scalia view and the Stevens view obviously differ on the proper role of courts in an overall system of administrative law. For J","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78202216","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}
INTRODUCTION One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases--National Federation of Independent Business v. Sebelius (1) and King v. Bunnell (2)--demonstrate both the nature and the limits of his success in that effort. These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct collision. And both times Justice Scalia accused the Court majority--led by Chief Justice Roberts--of twisting the statutory text. (3) Justice Scalia was right about the twistifications. But that does not mean he was right to condemn them both. Sometimes the governing law of interpretation calls on judges to adopt an interpretation other than the one that most straightforwardly follows from the application of standard interpretive conventions to statutory text. (4) NFIB v. Sebelius was just such a case. The Supreme Court had to choose between two interpretations of a provision regarding mandatory insurance coverage. (5) The most straightforward interpretation--as a requirement to have the right kind of insurance, backed up by a financial penalty for noncompliance--would have resulted in a holding of unconstitutionality. (6) A textually inferior interpretation--as a tax on not having the requisite insurance--would have avoided such a holding. (7) Under the Court's precedent governing that kind of choice, the Court was required to choose the constitutionally salvific interpretation--even over the textually superior one--as long as it was "reasonable" and "fairly possible" to read it that way. (8) And it was. In King v. Burwell, by contrast, the law of interpretation did not authorize the Justices to opt for the textually inferior interpretation. Chief Justice Roberts found ambiguity in unambiguous statutory text and then resolved that ambiguity by reference to an interpretation that would make the "legislative plan" work. (9) Because Chief Justice Roberts avoided explicit reference to legislative purpose and legislative history--two hallmarks of the "bad old days" before the rise of Scalian textualism (10)--he was constrained to generate ambiguity through textual analysis. And it is precisely because of this constraint that careful opinion readers can see where his reasoning comes up short. This is a testimony to Justice Scalia's success in leading the Court away from a more purposive approach toward a more textualist approach. But Justice Scalia and his textualism were still losers in King. Scalia's need to dissent in that case shows not only the limits of textualism's ascendancy, but also the need for a sounder jurisprudential footing for textualist interpretive practice. The interpre
大法官斯卡利亚在最高法院长达数十年的任期中最受称赞的遗产之一是他领导了一场将法律解释更紧密地与法律文本联系起来的运动。他在《平价医疗法案》(Affordable Care Act)案件中的异议——全国独立企业联合会诉西贝利厄斯案(1)和金诉邦内尔案(2)——表明了他在这一努力中取得成功的本质和局限性。这是两项法律挑战，一项是宪法挑战，另一项是法定挑战，这可能会让奥巴马总统标志性的立法成就——《患者保护和平价医疗法案》(Patient Protection and Affordable Care Act)付之一篑。这两次法院都避开了直接碰撞。这两次斯卡利亚都指责由首席大法官罗伯茨领导的多数派扭曲了法律文本。(3)大法官斯卡利亚关于扭曲的说法是正确的。但这并不意味着他对两者的谴责是正确的。有时，解释的支配法则要求法官采用一种解释，而不是最直接地从标准解释公约适用到成文法文本的解释。(4) NFIB诉西贝利厄斯案就是这样一个案例。最高法院不得不在对一项有关强制性保险的条款的两种解释之间作出选择。(5)最直接的解释——要求购买合适的保险，并对不遵守规定的人处以经济处罚——会导致违宪。(6)一种文本上较差的解释——作为对没有必要保险的征税——将避免这种持有。(7)根据最高法院关于这类选择的先例，最高法院必须选择符合宪法的解释——即使是在文本上更优的解释之上——只要这种解释是“合理的”和“相当可能的”。事实的确如此。相比之下，在King v. Burwell案中，解释法并未授权法官选择在文本上较差的解释。首席大法官罗伯茨在无歧义的法定文本中发现了歧义，然后通过引用一种能够使“立法计划”发挥作用的解释来解决这种歧义。(9)由于首席大法官罗伯茨避免明确提及立法目的和立法历史——这是斯卡利亚文本主义兴起之前“糟糕的过去”的两个标志——他被迫通过文本分析产生歧义。正是由于这种限制，细心的意见读者可以看出他的推理不足之处。这证明了斯卡利亚法官成功地带领最高法院从目的性更强的方法转向了文本主义的方法。但大法官斯卡利亚和他的文本主义在金案中仍然是失败者。斯卡利亚需要在该案中提出异议，这不仅表明了文本主义优势的局限性，也表明了文本主义解释实践需要一个更健全的法理基础。理查德·埃金斯(Richard Ekins)近年来阐述的解释性意向性理论，本可以提供一个法理基础，使罗伯茨能够按照自己的条件参与其中。(11)将Ekins关于立法意图的解释与Roberts关于立法计划的概念进行比较，就可以理解为什么国会制定的计划——而不是奥巴马政府提出并被法院多数人接受的修改后的计划——在King案中应该被视为权威。(12)以法学为基础的解释理论——无论是文本主义的、意图主义的、实用主义的，还是你所拥有的——在实际裁决中具有特别重要的意义。它没有法律控制，至少没有直接控制。解释法则可以。但法律解释在很大程度上是不成文的，也没有编纂成法律。在某些情况下，它不会产生唯一正确的指令。越深入法院，越往上上诉层级，这类“难案”就越多。．．．
{"title":"The Limits of Reading Law in the Affordable Care Act Cases","authors":"Kevin C. Walsh","doi":"10.2139/SSRN.2985014","DOIUrl":"https://doi.org/10.2139/SSRN.2985014","url":null,"abstract":"INTRODUCTION One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases--National Federation of Independent Business v. Sebelius (1) and King v. Bunnell (2)--demonstrate both the nature and the limits of his success in that effort. These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct collision. And both times Justice Scalia accused the Court majority--led by Chief Justice Roberts--of twisting the statutory text. (3) Justice Scalia was right about the twistifications. But that does not mean he was right to condemn them both. Sometimes the governing law of interpretation calls on judges to adopt an interpretation other than the one that most straightforwardly follows from the application of standard interpretive conventions to statutory text. (4) NFIB v. Sebelius was just such a case. The Supreme Court had to choose between two interpretations of a provision regarding mandatory insurance coverage. (5) The most straightforward interpretation--as a requirement to have the right kind of insurance, backed up by a financial penalty for noncompliance--would have resulted in a holding of unconstitutionality. (6) A textually inferior interpretation--as a tax on not having the requisite insurance--would have avoided such a holding. (7) Under the Court's precedent governing that kind of choice, the Court was required to choose the constitutionally salvific interpretation--even over the textually superior one--as long as it was \"reasonable\" and \"fairly possible\" to read it that way. (8) And it was. In King v. Burwell, by contrast, the law of interpretation did not authorize the Justices to opt for the textually inferior interpretation. Chief Justice Roberts found ambiguity in unambiguous statutory text and then resolved that ambiguity by reference to an interpretation that would make the \"legislative plan\" work. (9) Because Chief Justice Roberts avoided explicit reference to legislative purpose and legislative history--two hallmarks of the \"bad old days\" before the rise of Scalian textualism (10)--he was constrained to generate ambiguity through textual analysis. And it is precisely because of this constraint that careful opinion readers can see where his reasoning comes up short. This is a testimony to Justice Scalia's success in leading the Court away from a more purposive approach toward a more textualist approach. But Justice Scalia and his textualism were still losers in King. Scalia's need to dissent in that case shows not only the limits of textualism's ascendancy, but also the need for a sounder jurisprudential footing for textualist interpretive practice. The interpre","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75608980","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}
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