Why is home language important? The language you speak with your children is the first language they will learn. It is their first connection to you, to the rest of their family, and to their culture and community. It is the language they first use to learn about the world around them. It is the language that helps them get “set for life”—and you are a central part of that process! This is one of the many ways parents are their children’s first teachers.
{"title":"Gift of Language","authors":"Joseph Vining","doi":"10.5040/9781472546579","DOIUrl":"https://doi.org/10.5040/9781472546579","url":null,"abstract":"Why is home language important? The language you speak with your children is the first language they will learn. It is their first connection to you, to the rest of their family, and to their culture and community. It is the language they first use to learn about the world around them. It is the language that helps them get “set for life”—and you are a central part of that process! This is one of the many ways parents are their children’s first teachers.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2014-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80129797","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}
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
{"title":"Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory","authors":"Marc O Degirolami, Kevin C. Walsh","doi":"10.2139/SSRN.2399487","DOIUrl":"https://doi.org/10.2139/SSRN.2399487","url":null,"abstract":"Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80939474","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 explores the unique separation-of-powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt State law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting State laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive decisions, while at the same time imposing significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these existing doctrinal restrictions to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace State law. In doing so, it signaled an unprecedented expansion of the executive’s power to preempt, one without apparent limit. This article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. Given the limitations of the existing doctrines, it proposes a new approach to cabining executive authority in this context.
{"title":"Immigration Separation of Powers and the President's Power to Preempt","authors":"Catherine Y. Kim","doi":"10.2139/SSRN.2397402","DOIUrl":"https://doi.org/10.2139/SSRN.2397402","url":null,"abstract":"This article explores the unique separation-of-powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt State law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting State laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive decisions, while at the same time imposing significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these existing doctrinal restrictions to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace State law. In doing so, it signaled an unprecedented expansion of the executive’s power to preempt, one without apparent limit. This article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. Given the limitations of the existing doctrines, it proposes a new approach to cabining executive authority in this context.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2014-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89204992","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 Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.
{"title":"Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture","authors":"S. Maloney","doi":"10.2139/SSRN.2352915","DOIUrl":"https://doi.org/10.2139/SSRN.2352915","url":null,"abstract":"This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88503209","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}
Scholars have ignored the most important question in one of the most famousconstitutional law cases, obscuring the machinations that spawned the dispute. ThisArticle sheds light on the events that precipitated Marbury v. Madison and alsoexplains when an appointment vests. Thomas Jefferson famously refused to deliver acommission to William J. Marbury, causing the latter to seek a writ of mandamus fromthe Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on thegrounds that Marbury had not been appointed a justice of the peace precisely because henever had received a commission. In fact, Jefferson’s delivery argument was a post-hocrationalization, having nothing to do with his actions in March of 1801. JohnAdams’s midnight appointments incensed Jefferson, leading the new President to treatall of the justice of the peace appointments as nullities. To Jefferson, the failure todeliver commissions to some of those appointees mattered not a whit. What seems tohave been far more significant is his sense that the justices of the peace served at hispleasure. Acting on this belief, he simultaneously removed them all and recess appointedmost of them, save for more than a dozen, including William J. Marbury.This Article also addresses whether William J. Marbury and the other midnight appointeeswho never received their commissions were nonetheless appointed, considering fivetheories of when an appointment vests: when the Senate consents; after consent butbefore commissioning; when commissioning occurs; with the delivery of a commission;and with acceptance of the office. In the course of considering these theories, the Articlediscloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed thesecond theory, namely that appointments vest before the act of commissioning. Moreover,well before Marbury v. Madison, the Adams Administration likewise concludedthat appointments could vest prior to any commission being issued or delivered. Despitethis convergence, the Article contends that none of the five theories is correct becauseeach reads the Constitution as enshrining a single answer regarding when an appointmentvests. There is no single answer. Rather an appointment vests whenever thePresident determines that it shall. The Constitution grants power to the President toappoint, never precisely specifying when or how an appointment vests. By not specifyingwhen or how appointment is made, the Constitution leaves it to the President todecide the manner in which he appoints. This conclusion derives from a general principleof constitutional law: When the Constitution grants power to an entity but doesnot specify the precise means by which it will be exercised, the grantee may decide themeans of exercising it.
学者们忽略了最著名的宪法案件之一中最重要的问题，掩盖了引发争议的阴谋。本文阐明了促成马布里诉麦迪逊案的事件，并解释了任命何时生效。众所周知，托马斯·杰斐逊拒绝向威廉·j·马布里(William J. Marbury)授予委任状，导致后者向最高法院申请行政令。人们普遍认为，杰斐逊拒绝马布里的理由是，马布里没有被任命为治安法官，恰恰是因为他从来没有接受过任命。事实上，杰斐逊的演讲论点是一种后爱国主义，与他在1801年3月的行动毫无关系。约翰·亚当斯的午夜任命激怒了杰斐逊，导致这位新总统将和平法官的任命视为无效。对杰斐逊来说，未能向其中一些被任命者交付委任状一点也不重要。似乎更重要的是，他觉得治安法官听命于他。本着这一信念，他同时将他们全部撤职，并休会任命了大多数人，除了包括威廉·j·马布里在内的十几个人。本文还讨论了威廉·j·马布里和其他从未接受过任命的午夜被任命者是否仍然被任命，考虑了任命何时生效的五种理论:参议院同意;同意后但在投入使用前;调试时;他接受了这个职位，接受了这个委托。在考虑这些理论的过程中，文章揭示了一个令人惊讶的事实，即托马斯·杰斐逊，作为国务卿，支持第二种理论，即任命在委托行为之前生效。此外，早在马布里诉麦迪逊案之前，亚当斯政府同样得出结论，任命可以在任何委员会发布或交付之前授予。尽管有这种趋同，《宪法》认为，这五种理论都不正确，因为每种理论都把宪法解读为对任命何时生效只有一个答案。没有单一的答案。相反，只要总统决定，任命就会生效。宪法赋予总统任命的权力，但从未明确规定任命的时间和方式。由于宪法没有具体规定任命的时间和方式，所以由总统来决定他任命的方式。这一结论源于宪法的一般原则:当宪法授予一个实体权力，但没有具体规定行使权力的具体方式时，受让人可以决定行使权力的方式。
{"title":"The Appointment and Removal of William J. Marbury and When an Office Vests","authors":"S. Prakash","doi":"10.2139/SSRN.2857299","DOIUrl":"https://doi.org/10.2139/SSRN.2857299","url":null,"abstract":"Scholars have ignored the most important question in one of the most famousconstitutional law cases, obscuring the machinations that spawned the dispute. ThisArticle sheds light on the events that precipitated Marbury v. Madison and alsoexplains when an appointment vests. Thomas Jefferson famously refused to deliver acommission to William J. Marbury, causing the latter to seek a writ of mandamus fromthe Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on thegrounds that Marbury had not been appointed a justice of the peace precisely because henever had received a commission. In fact, Jefferson’s delivery argument was a post-hocrationalization, having nothing to do with his actions in March of 1801. JohnAdams’s midnight appointments incensed Jefferson, leading the new President to treatall of the justice of the peace appointments as nullities. To Jefferson, the failure todeliver commissions to some of those appointees mattered not a whit. What seems tohave been far more significant is his sense that the justices of the peace served at hispleasure. Acting on this belief, he simultaneously removed them all and recess appointedmost of them, save for more than a dozen, including William J. Marbury.This Article also addresses whether William J. Marbury and the other midnight appointeeswho never received their commissions were nonetheless appointed, considering fivetheories of when an appointment vests: when the Senate consents; after consent butbefore commissioning; when commissioning occurs; with the delivery of a commission;and with acceptance of the office. In the course of considering these theories, the Articlediscloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed thesecond theory, namely that appointments vest before the act of commissioning. Moreover,well before Marbury v. Madison, the Adams Administration likewise concludedthat appointments could vest prior to any commission being issued or delivered. Despitethis convergence, the Article contends that none of the five theories is correct becauseeach reads the Constitution as enshrining a single answer regarding when an appointmentvests. There is no single answer. Rather an appointment vests whenever thePresident determines that it shall. The Constitution grants power to the President toappoint, never precisely specifying when or how an appointment vests. By not specifyingwhen or how appointment is made, the Constitution leaves it to the President todecide the manner in which he appoints. This conclusion derives from a general principleof constitutional law: When the Constitution grants power to an entity but doesnot specify the precise means by which it will be exercised, the grantee may decide themeans of exercising it.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82283557","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}
New governance scholarship argues that private regulation is playing a larger role in influencing industry behavior relative to state-centric methods of regulation. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This article fills the void by conducting an institutional law and economics analysis of forestry sustainability certifications, a classic example of private regulation. This article analyzes the features of the forestry industry that contribute to the success of sustainability certifications within it. It finds that the industrial characteristics that contribute to successful private regulatory regimes include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest new governance can and does succeed in industries with similar characteristics, providing a novel real-world example of theoretical new governance ideals in practice.
{"title":"New Governance and Industry Culture","authors":"K. Schulz","doi":"10.2139/SSRN.2064242","DOIUrl":"https://doi.org/10.2139/SSRN.2064242","url":null,"abstract":"New governance scholarship argues that private regulation is playing a larger role in influencing industry behavior relative to state-centric methods of regulation. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This article fills the void by conducting an institutional law and economics analysis of forestry sustainability certifications, a classic example of private regulation. This article analyzes the features of the forestry industry that contribute to the success of sustainability certifications within it. It finds that the industrial characteristics that contribute to successful private regulatory regimes include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest new governance can and does succeed in industries with similar characteristics, providing a novel real-world example of theoretical new governance ideals in practice.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75420338","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}
Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, firms, and other institutions both facilitate and inhibit rational behavior by antitrust actors; and, third, they erroneously equate all deviations from standard rationality with harm to competition. After establishing the central role of rationality assumptions in present-day antitrust and reviewing illustrative behavioral analyses across the field – from horizontal and vertical restraints, through monopolization, to merger enforcement practices – the Article examines the three classes of mistakes, their manifestation, and their consequences in antitrust scholarship. It concludes by offering two sets of essential lessons that the behavioral approach already can offer to make antitrust law and policy more realistic and effective in protecting competition: One concerning the value of case-specific evidence in antitrust adjudication and enforcement, the other showing how antitrust law can and should account for systematic and predictable boundedly rational behavior that is neither constant nor uniform.
{"title":"Understanding Behavioral Antitrust","authors":"Avishalom Tor","doi":"10.2139/ssrn.2293508","DOIUrl":"https://doi.org/10.2139/ssrn.2293508","url":null,"abstract":"Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, firms, and other institutions both facilitate and inhibit rational behavior by antitrust actors; and, third, they erroneously equate all deviations from standard rationality with harm to competition. After establishing the central role of rationality assumptions in present-day antitrust and reviewing illustrative behavioral analyses across the field – from horizontal and vertical restraints, through monopolization, to merger enforcement practices – the Article examines the three classes of mistakes, their manifestation, and their consequences in antitrust scholarship. It concludes by offering two sets of essential lessons that the behavioral approach already can offer to make antitrust law and policy more realistic and effective in protecting competition: One concerning the value of case-specific evidence in antitrust adjudication and enforcement, the other showing how antitrust law can and should account for systematic and predictable boundedly rational behavior that is neither constant nor uniform.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91366472","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 legal literature on the subject of originalism and affirmative action asserts two propositions: that originalism strongly supports the constitutionality of affirmative action and that the two originalist justices – Justices Scalia and Thomas – appear to be hypocrites for holding that the Constitution forbids government affirmative action. These claims are made by various leading scholars, including Cass Sunstein and Jed Rubenfeld. This Article challenges these claims. First, I argue that the Constitution’s original meaning does not plainly establish that state affirmative action is constitutional. Instead, there is, at the least, a reasonable argument to be made that such affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the 14th Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. Second, because there is at least a reasonable argument for their position, I argue that the originalist justices are not being inconsistent or hypocritical by supporting a colorblind Constitution. I do argue, however, that the originalist justices should have explained how an originalist methodology could yield the colorblind constitution. The claim that the original meaning supports affirmative action is based on a set of federal statutes passed at the time of the 14th Amendment that are thought to provide race based benefits to blacks. I argue, however, that these statutes do not provide strong evidence that the 14th Amendment allows such race based benefits. These were federal statutes that were not governed by the 14th Amendment and therefore were not directly informative of its meaning. Moreover, most of these statutes, and perhaps virtually all of them, are not necessarily best interpreted as providing race based benefits. In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution. The Article explores two leading and representative theories of the original meaning of the equality component of the 14th Amendment – John Harrison’s interpretation of the Privileges or Immunities Clause and Michelle Saunders’s interpretation of the Equal Protection Clause – to show that they are reasonably interpreted to support the colorblind Constitution.
{"title":"Originalism and the Colorblind Constitution","authors":"Michael B. Rappaport","doi":"10.2139/SSRN.2244610","DOIUrl":"https://doi.org/10.2139/SSRN.2244610","url":null,"abstract":"The legal literature on the subject of originalism and affirmative action asserts two propositions: that originalism strongly supports the constitutionality of affirmative action and that the two originalist justices – Justices Scalia and Thomas – appear to be hypocrites for holding that the Constitution forbids government affirmative action. These claims are made by various leading scholars, including Cass Sunstein and Jed Rubenfeld. This Article challenges these claims. First, I argue that the Constitution’s original meaning does not plainly establish that state affirmative action is constitutional. Instead, there is, at the least, a reasonable argument to be made that such affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the 14th Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. Second, because there is at least a reasonable argument for their position, I argue that the originalist justices are not being inconsistent or hypocritical by supporting a colorblind Constitution. I do argue, however, that the originalist justices should have explained how an originalist methodology could yield the colorblind constitution. The claim that the original meaning supports affirmative action is based on a set of federal statutes passed at the time of the 14th Amendment that are thought to provide race based benefits to blacks. I argue, however, that these statutes do not provide strong evidence that the 14th Amendment allows such race based benefits. These were federal statutes that were not governed by the 14th Amendment and therefore were not directly informative of its meaning. Moreover, most of these statutes, and perhaps virtually all of them, are not necessarily best interpreted as providing race based benefits. In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution. The Article explores two leading and representative theories of the original meaning of the equality component of the 14th Amendment – John Harrison’s interpretation of the Privileges or Immunities Clause and Michelle Saunders’s interpretation of the Equal Protection Clause – to show that they are reasonably interpreted to support the colorblind Constitution.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81017038","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}
A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly-enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation — that of Congress’s faithful agent — the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework. This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework.
{"title":"Against Coherence in Statutory Interpretation","authors":"J. D. Ohlendorf","doi":"10.2139/SSRN.2309071","DOIUrl":"https://doi.org/10.2139/SSRN.2309071","url":null,"abstract":"A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly-enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation — that of Congress’s faithful agent — the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework. This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75088293","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}
Daubert v. Merrell Dow Pharmaceuticals, which along with its successor cases has imposed demanding standards of reliability on the admission of scientific and other expert evidence, has transformed much of American evidence law. The Daubert revolution has been subject to strong endorsement and equally strong criticism, but few critics, and none since Daubert, have asked why expert evidence is treated differently in the first place. The common assumption, going back over a century, is that expert evidence is treated differently because of the risk that juries (and judges), not themselves possessed of the relevant expertise, will systematically overvalue such evidence. The overvaluation may be based on ignorance, or on novices being overly impressed by expert credentials and trappings, but the belief in overvaluation as the primary foundation for the distinct treatment of expert evidence persists, generating not only Daubert but also a long history of treating expert evidence specially. It turns out, however, that the longstanding assumption of overvaluation is unsupported by the research. Several decades of research, mostly by psychologists, shows the common assumptions of jury overvaluation of expert evidence to be large unfounded. Indeed, modern research shows that it is eyewitness and other so-called direct evidence that is overvalued. By relying on the erroneous assumption of jury overvaluation of expert testimony and the equally erroneous assumption of non-overvaluation of direct testimony, the law of evidence has drawn a distinction that rests on a false empirical basis. Moreover, insofar as the distinction between expert and other evidence also rests on a distinction between the facts that lay witnesses offer and the inferences (opinions) that come from experts, this distinction is undercut not only by the modern treatment of lay opinion, but by a great deal of philosophical work on the expert-dependence of the judgments that ordinary people make in all aspects of their lives.
{"title":"Is Expert Evidence Really Different","authors":"F. Schauer, Barbara A. Spellman","doi":"10.2139/SSRN.2210397","DOIUrl":"https://doi.org/10.2139/SSRN.2210397","url":null,"abstract":"Daubert v. Merrell Dow Pharmaceuticals, which along with its successor cases has imposed demanding standards of reliability on the admission of scientific and other expert evidence, has transformed much of American evidence law. The Daubert revolution has been subject to strong endorsement and equally strong criticism, but few critics, and none since Daubert, have asked why expert evidence is treated differently in the first place. The common assumption, going back over a century, is that expert evidence is treated differently because of the risk that juries (and judges), not themselves possessed of the relevant expertise, will systematically overvalue such evidence. The overvaluation may be based on ignorance, or on novices being overly impressed by expert credentials and trappings, but the belief in overvaluation as the primary foundation for the distinct treatment of expert evidence persists, generating not only Daubert but also a long history of treating expert evidence specially. It turns out, however, that the longstanding assumption of overvaluation is unsupported by the research. Several decades of research, mostly by psychologists, shows the common assumptions of jury overvaluation of expert evidence to be large unfounded. Indeed, modern research shows that it is eyewitness and other so-called direct evidence that is overvalued. By relying on the erroneous assumption of jury overvaluation of expert testimony and the equally erroneous assumption of non-overvaluation of direct testimony, the law of evidence has drawn a distinction that rests on a false empirical basis. Moreover, insofar as the distinction between expert and other evidence also rests on a distinction between the facts that lay witnesses offer and the inferences (opinions) that come from experts, this distinction is undercut not only by the modern treatment of lay opinion, but by a great deal of philosophical work on the expert-dependence of the judgments that ordinary people make in all aspects of their lives.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74482255","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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