This article presents important, largely-overlooked evidence concerning the antebellum understanding of the Privileges and Immunities Clause of Article IV, with an eye toward illuminating the Privileges or Immunities Clause of the Fourteenth Amendment.This article explains that from 1857 to 1861, in the course of prominent national political debates, three contrasting interpretations of the Privileges and Immunities Clause arose: (1) a pro-slavery absolute-rights reading adopted by southern Democrats and some northern Democrats; (2) an anti-slavery absolute-rights reading adopted by Republicans; and (3) a strictly interstate-equality reading held by some northern and border-state Democrats. The prominence, if not dominance, of the first two readings represented, in some respects, radical developments relative to the interpretations that had prevailed in the courts and political debates before 1857. These first two readings, at the same time, effectively marginalized the interstate-equality reading that still largely prevailed in the courts.This article concludes by noting the ways in which this evidence illuminates both the original understanding of the “privileges and immunities of citizens of the United States” secured by the Fourteenth Amendment, and the reason why the Fourteenth Amendment proved so vulnerable to judicial misconstruction.
{"title":"The Meanings of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War","authors":"David R. Upham","doi":"10.2139/ssrn.2107460","DOIUrl":"https://doi.org/10.2139/ssrn.2107460","url":null,"abstract":"This article presents important, largely-overlooked evidence concerning the antebellum understanding of the Privileges and Immunities Clause of Article IV, with an eye toward illuminating the Privileges or Immunities Clause of the Fourteenth Amendment.This article explains that from 1857 to 1861, in the course of prominent national political debates, three contrasting interpretations of the Privileges and Immunities Clause arose: (1) a pro-slavery absolute-rights reading adopted by southern Democrats and some northern Democrats; (2) an anti-slavery absolute-rights reading adopted by Republicans; and (3) a strictly interstate-equality reading held by some northern and border-state Democrats. The prominence, if not dominance, of the first two readings represented, in some respects, radical developments relative to the interpretations that had prevailed in the courts and political debates before 1857. These first two readings, at the same time, effectively marginalized the interstate-equality reading that still largely prevailed in the courts.This article concludes by noting the ways in which this evidence illuminates both the original understanding of the “privileges and immunities of citizens of the United States” secured by the Fourteenth Amendment, and the reason why the Fourteenth Amendment proved so vulnerable to judicial misconstruction.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76741126","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}
We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that "constitutional decisionism" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.
{"title":"The Exceptional Role of Courts in the Constitutional Order","authors":"N. Barber, Adrian Vermeule","doi":"10.2139/SSRN.2734218","DOIUrl":"https://doi.org/10.2139/SSRN.2734218","url":null,"abstract":"We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that \"constitutional decisionism\" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73934303","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}
Penn Central v. New York is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest — a transferable development right (TDR) — that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over 40 years, are the subject of new takings litigation. According to a newly filed complaint, the TDRs that saved Grand Central have themselves been taken by the government, which allegedly wiped out their value by permissively upzoning the neighboring property. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property — like TDRs and pollution credits, for example — is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Essay ultimately argues that the creation of regulatory property should not prevent policy changes far into the future.
{"title":"Penn Central Take Two","authors":"C. Serkin","doi":"10.2139/SSRN.2728417","DOIUrl":"https://doi.org/10.2139/SSRN.2728417","url":null,"abstract":"Penn Central v. New York is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest — a transferable development right (TDR) — that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over 40 years, are the subject of new takings litigation. According to a newly filed complaint, the TDRs that saved Grand Central have themselves been taken by the government, which allegedly wiped out their value by permissively upzoning the neighboring property. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property — like TDRs and pollution credits, for example — is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Essay ultimately argues that the creation of regulatory property should not prevent policy changes far into the future.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86986181","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 article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision. The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices.
{"title":"Prosecutorial Accountability 2.0","authors":"B. Green, Ellen Yaroshefsky","doi":"10.2139/SSRN.2722791","DOIUrl":"https://doi.org/10.2139/SSRN.2722791","url":null,"abstract":"This article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision. The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80951122","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}
Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions “not relevant to identity.” We argue that policy implications of genetic testing laws cannot be so neatly demarked. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from “deadbeat dads,” which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been legally regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population’s genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients, have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.
{"title":"DNA and Distrust","authors":"Kerry Abrams, Brandon L. Garrett","doi":"10.2139/SSRN.2473728","DOIUrl":"https://doi.org/10.2139/SSRN.2473728","url":null,"abstract":"Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions “not relevant to identity.” We argue that policy implications of genetic testing laws cannot be so neatly demarked. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from “deadbeat dads,” which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been legally regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population’s genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients, have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82914275","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 Planned Parenthood v. Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v. Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend that interest-balancing judgment on the merits: indeed, three of the five Justices in the majority expressly declined to explain how they would have decided the interest-balancing question as an original matter. As a result, the majority was forced to rely on stare decisis and related considerations of "institutional integrity." In this Article, I engage in the interest-balancing analysis Casey omitted, and argue that the right to elective abortion is unsound in Casey’s own terms. I assume the validity of Casey’s "reasoned judgment" approach to identifying unenumerated rights, including the interest-balancing methodology Casey used to reshape the right to elective abortion. I also assume that Casey (like Roe before it) is correct in characterizing the pre-viable fetus as "potential human life" rather than as an actual, normatively human being. These are obviously unfavorable premises on which to argue against a right to elective abortion. But that is precisely the point. My thesis is that even when an interest-balancing analysis is conducted on terms generally favorable to recognizing a constitutional right to elective abortion, the state’s interest in protecting the life of the pre-viable fetus prevails.I make that case through a close reading of Casey, careful descriptions and comparisons of the competing state and individual interests, and a concise analysis of the treatment of abortion – and of fetal life generally – in the Anglo-American legal tradition. As to precedent, I argue that a majority of the Justices in Casey believed that the state’s interest in protecting fetal life outweighs the woman’s interest in an elective abortion, and that their judgments should carry appreciable weight because they dictated Casey’s reliance on stare decisis. As to the competing interests, I acknowledge that the woman’s interest is entitled to great weight, but argue that the fetus’s inherent, self-directing "potential" to develop into a normatively human being should lead us to assign even greater weight to protecting its life – and its future. As for history, building on the scholarship of Joseph Dellapenna and others, I argue that the Anglo-American legal tradition has always protected the lives of fetuses once they could be known to be alive – initially at quickening, and throughout pregnancy once the basic facts of embryology were discovered in the 19th century. Precedent, reasoned evaluation of the competing interests, and tradition all
在“计划生育”诉凯西案中，最高法院重申了在生存能力之前进行选择性堕胎的权利，但放弃了罗伊诉韦德案中将其描述为一项基本权利的说法，该权利只能通过令人难以抗拒的国家利益来克服。相反，凯西将选择性堕胎的权利视为基于利益平衡的判断，即妇女终止妊娠的自由利益超过了国家保护可存活胎儿生命的利益。然而，值得注意的是，凯西法院并没有在是非曲实上为利益平衡的判决辩护:事实上，多数五名大法官中有三名明确拒绝解释他们将如何将利益平衡问题作为一个原始问题来裁决。结果，大多数人被迫依赖于凝视决策和相关的“制度完整性”考虑。在这篇文章中，我进行了凯西省略的利益平衡分析，并认为在凯西自己的术语中，选择性堕胎的权利是不健全的。我假设Casey的“理性判断”方法在确定未列举的权利方面是有效的，包括Casey用来重塑选择性堕胎权的利益平衡方法。我还认为Casey(就像之前的Roe案件一样)将未成活的胎儿描述为“潜在的人类生命”，而不是一个实际的、规范的人类，这是正确的。这些显然是反对选择性堕胎权利的不利前提。但这正是问题的关键。我的论点是，即使利益平衡分析是在普遍有利于承认选择性堕胎的宪法权利的条件下进行的，国家保护可存活胎儿生命的利益也占了上风。我通过仔细阅读凯西的作品，仔细描述和比较相互竞争的国家和个人利益，以及对英美法律传统中对堕胎和胎儿生命的处理的简明分析来证明这一点。至于先例，我认为，在凯西案中，大多数法官认为，国家保护胎儿生命的利益超过了妇女选择堕胎的利益，他们的判决应该有相当大的分量，因为他们决定了凯西案对“择定原则”的依赖。至于相互竞争的利益，我承认妇女的利益有权得到极大的重视，但我认为胎儿内在的、自我导向的“潜力”发展成为一个规范的人，应该使我们更加重视保护它的生命和未来。至于历史，基于约瑟夫·德拉彭纳和其他人的学识，我认为英美法律传统总是保护胎儿的生命，一旦他们知道他们是活着的——最初是在加速时，在整个怀孕期间，一旦胚胎学的基本事实在19世纪被发现。先例、对竞争利益的理性评估和传统都指向这样一个结论:国家保护可存活胎儿生命的利益高于妇女终止妊娠和结束生命的利益。作为对生殖权利学术研究的贡献，我的分析发展了一条与大多数挑战选择性堕胎权利的学术研究明显不同的论证路线，后者要么否认未被列举的传统权利的合法性，要么质疑法院关于未成活的胎儿不能被证明是一个规范的人的假设。从最高法院应该考虑的论点来看，我的分析表明，那些坚持将选择性堕胎权视为一种既定决定的法官应该联合起来，就像他们在冈萨雷斯诉卡哈特案(Gonzales v. Carhart)中所做的那样，与那些推翻选择性堕胎权的法官一起，明确认为国家保护可存活胎儿的利益高于妇女选择选择性堕胎的利益。即使假定“择期决定”，也需要保留选择性堕胎的权利。这样做可以防止错误的宪法判断——选择性堕胎的权利现在是基于错误的宪法判断——扭曲最高法院对涉及旨在保护怀孕后胎儿生命的州法规(例如限制破坏冷冻胚胎的法律)的相关问题的考虑。正如冈萨雷斯诉卡哈特案所试图做的那样，它也将为解释凯西的过度负担标准提供一个更安全、更有说服力的基础，为保护可存活胎儿生命的州监管提供非常大的(尽管不是无限的)余地。
{"title":"Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- And Why It Matters","authors":"Stephen G. Gilles","doi":"10.2139/ssrn.2489652","DOIUrl":"https://doi.org/10.2139/ssrn.2489652","url":null,"abstract":"In Planned Parenthood v. Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v. Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend that interest-balancing judgment on the merits: indeed, three of the five Justices in the majority expressly declined to explain how they would have decided the interest-balancing question as an original matter. As a result, the majority was forced to rely on stare decisis and related considerations of \"institutional integrity.\" In this Article, I engage in the interest-balancing analysis Casey omitted, and argue that the right to elective abortion is unsound in Casey’s own terms. I assume the validity of Casey’s \"reasoned judgment\" approach to identifying unenumerated rights, including the interest-balancing methodology Casey used to reshape the right to elective abortion. I also assume that Casey (like Roe before it) is correct in characterizing the pre-viable fetus as \"potential human life\" rather than as an actual, normatively human being. These are obviously unfavorable premises on which to argue against a right to elective abortion. But that is precisely the point. My thesis is that even when an interest-balancing analysis is conducted on terms generally favorable to recognizing a constitutional right to elective abortion, the state’s interest in protecting the life of the pre-viable fetus prevails.I make that case through a close reading of Casey, careful descriptions and comparisons of the competing state and individual interests, and a concise analysis of the treatment of abortion – and of fetal life generally – in the Anglo-American legal tradition. As to precedent, I argue that a majority of the Justices in Casey believed that the state’s interest in protecting fetal life outweighs the woman’s interest in an elective abortion, and that their judgments should carry appreciable weight because they dictated Casey’s reliance on stare decisis. As to the competing interests, I acknowledge that the woman’s interest is entitled to great weight, but argue that the fetus’s inherent, self-directing \"potential\" to develop into a normatively human being should lead us to assign even greater weight to protecting its life – and its future. As for history, building on the scholarship of Joseph Dellapenna and others, I argue that the Anglo-American legal tradition has always protected the lives of fetuses once they could be known to be alive – initially at quickening, and throughout pregnancy once the basic facts of embryology were discovered in the 19th century. Precedent, reasoned evaluation of the competing interests, and tradition all","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76712168","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}
Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing principles and paradigms in order to identify solutions that are justified. The Essay then extracts and emphasizes the social aspects of this basic account. It contends that arguments about the meaning of the Constitution appropriately reflect social and political dynamics. The resulting approach, social coherentism, describes a powerful method for generating interpretations of the First Amendment that are justified, not conclusory. This matters at a moment when some defenders of religious traditionalism are suggesting that principled decisionmaking on questions of religious freedom is impossible, and therefore that such issues should be largely surrendered to political processes.
{"title":"Religion and Social Coherentism","authors":"N. Tebbe","doi":"10.31228/osf.io/5qgak","DOIUrl":"https://doi.org/10.31228/osf.io/5qgak","url":null,"abstract":"Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing principles and paradigms in order to identify solutions that are justified. The Essay then extracts and emphasizes the social aspects of this basic account. It contends that arguments about the meaning of the Constitution appropriately reflect social and political dynamics. The resulting approach, social coherentism, describes a powerful method for generating interpretations of the First Amendment that are justified, not conclusory. This matters at a moment when some defenders of religious traditionalism are suggesting that principled decisionmaking on questions of religious freedom is impossible, and therefore that such issues should be largely surrendered to political processes.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78425058","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 over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases – four. Yet this reworking has not garnered much attention in the literature. This article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer cannot negate the mental state required for inducement – the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic.
在过去十年左右的时间里，最高法院重新参与了专利法。虽然很多人都关注法院对构成专利合格主题的内容的重新制定以及加强打击“专利流氓”的工具，但许多人都忽略了法院对35 U.S.C.§271(b)项下积极诱导专利侵权的轮廓的重新制定。法院将同样数量的§271(b)案件作为标的物资格案件——4起。然而，这种重新设计并没有在文献中引起太多关注。这篇文章首次全面评估了法院为界定积极引诱所做的努力。在这样做的过程中，它确定了法院最近的案件Commil USA, LLC诉Cisco Systems, Inc的惊人意义，在该案中，法院认为被告诱导者的善意信念不能否定诱导所需的精神状态-诱导侵权行为的意图。在这样做的过程中，最高法院偏离了在李尔公司诉阿德金斯案及其后续案件中所阐述的鼓励挑战专利有效性的政策。放弃李尔王的这一步意义重大，令人惊讶，尤其是在对专利制度的批评认为有太多无效专利给竞争带来问题的情况下。本文对《委员会》的这些方面进行了批判，然后提出了一些悬而未决的问题。特别是，这篇文章表明，一个善意的信念，即诱导行为不侵权，这仍然是一种辩护，应该只作为对过去的损害的保护，而不是对未来的救济，如禁令或正在进行的版税。到目前为止，法院未能认识到这一重要的时间动态。
{"title":"The Supreme Court's Quiet Revolution in Induced Patent Infringement","authors":"T. Holbrook","doi":"10.2139/SSRN.2653077","DOIUrl":"https://doi.org/10.2139/SSRN.2653077","url":null,"abstract":"The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases – four. Yet this reworking has not garnered much attention in the literature. This article offers the first comprehensive assessment of the Court’s efforts to define active inducement. In so doing, it identifies the surprising significance of the Court’s most recent case, Commil USA, LLC v. Cisco Systems, Inc., where the Court held that a good faith belief on the part of the accused inducer cannot negate the mental state required for inducement – the intent to induce acts of infringement. In so doing, the Court moved away from its policy of encouraging challenges to patent validity as articulated in Lear, Inc. v. Adkins and its progeny. This step away from Lear is significant and surprising, particularly where critiques of the patent system suggest there are too many invalid patents creating issues for competition. This article critiques these aspects of Commil and then addresses lingering, unanswered questions. In particular, this article suggests that a good faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. The courts so far have failed to appreciate this important temporal dynamic.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2015-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84361680","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 central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacuna by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”This is the final published version of the "The Fixation Thesis" and it replaces the earlier versions previously available at this location.
{"title":"The Fixation Thesis: The Role of Historical Fact in Original Meaning","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.2559701","DOIUrl":"https://doi.org/10.2139/SSRN.2559701","url":null,"abstract":"The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacuna by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”This is the final published version of the \"The Fixation Thesis\" and it replaces the earlier versions previously available at this location.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2015-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87317260","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}
One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena — more so than in the broader domain of constitutional law — originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.There is little question that in the field of federal courts, historical study has a great deal to contribute to modern debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. But sometimes — if not often — the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution — including Article III and the structural framework within which it is situated — represented major innovations in their time. At the Founding, the concept of federalism — and with it the idea of two sets of courts, state and federal — was entirely new. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a “liquidat[ion]” of meaning over time.Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of
{"title":"Assessing the Role of History in the Federal Courts Canon: A Word of Caution","authors":"A. Tyler","doi":"10.2139/SSRN.2652585","DOIUrl":"https://doi.org/10.2139/SSRN.2652585","url":null,"abstract":"One of the most pervasive and important debates in federal courts jurisprudence is over the role that history should play in interpreting Article III of the United States Constitution. To that end, federal courts jurisprudence is not altogether different from constitutional law jurisprudence more generally. But in the federal courts arena — more so than in the broader domain of constitutional law — originalism has always wielded tremendous influence over much of the judicial and scholarly thinking. It is for this reason that a distinct conversation about its role in the federal courts canon is appropriate.There is little question that in the field of federal courts, historical study has a great deal to contribute to modern debates. Indeed, historical study holds enormous potential to illuminate the founding purpose behind constitutional provisions, to unearth contemporary meanings associated with terms of art that were included in the document, and to uncover important evidence relating to historical practices and context, which in turn can shed light on the background understandings and assumptions that underlie constitutional text. But sometimes — if not often — the historical record on important questions of federal courts jurisprudence is absent, incomplete, or more complex than jurists and scholars tend to acknowledge. In keeping with this idea, one should never forget that certain aspects of the Constitution — including Article III and the structural framework within which it is situated — represented major innovations in their time. At the Founding, the concept of federalism — and with it the idea of two sets of courts, state and federal — was entirely new. Moreover, the separation of powers framework was, at the least, a transformation of the British model, if not a dramatic departure from it. Against this backdrop, it would be curious indeed if the details of the Article III power were fully settled from the outset. More likely, as Madison recognized early on, there would need to be a “liquidat[ion]” of meaning over time.Accordingly, I wish to offer a word of caution about making historical arguments in federal courts jurisprudence. Specifically, in undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. As historian Jack Rakove has observed, the Founding period documents are the product of collective decisionmaking “whose outcomes necessarily reflected a bewildering array of","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77160261","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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