The transition between presidencies has long created controversies. Whether the issue is "midnight judges" or "midnight regulations," presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at "midnight regulations," such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks at the legality and propriety of "midnight regulation" and the devices incoming presidents use to undo "midnight regulation" left behind by their predecessors in office. The article also looks at the reasons why presidential and administrative action tends to increase at the end of a term and the forms that late term action tend to take. We see that sometimes late term action is simply part of an attempt to get more done before the deadline imposed by inauguration day, while in other situations delay may be due to external forces or due to intentional waiting for political reasons. Late term action that should be the greatest cause for concern may be action that appears designed merely to tie the hands of an incoming administration or create political costs without much hope of genuinely projecting the outgoing administration's policies into the future.
{"title":"Presidential Power in Transitions","authors":"J. Beermann","doi":"10.2139/SSRN.349560","DOIUrl":"https://doi.org/10.2139/SSRN.349560","url":null,"abstract":"The transition between presidencies has long created controversies. Whether the issue is \"midnight judges\" or \"midnight regulations,\" presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at \"midnight regulations,\" such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks at the legality and propriety of \"midnight regulation\" and the devices incoming presidents use to undo \"midnight regulation\" left behind by their predecessors in office. The article also looks at the reasons why presidential and administrative action tends to increase at the end of a term and the forms that late term action tend to take. We see that sometimes late term action is simply part of an attempt to get more done before the deadline imposed by inauguration day, while in other situations delay may be due to external forces or due to intentional waiting for political reasons. Late term action that should be the greatest cause for concern may be action that appears designed merely to tie the hands of an incoming administration or create political costs without much hope of genuinely projecting the outgoing administration's policies into the future.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"26 1","pages":"947"},"PeriodicalIF":1.7,"publicationDate":"2002-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68599322","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}
Some physicians are receiving financial incentives for enrolling their patients in clinical studies, while others have financial interests in companies that will profit from the products under investigation. These practices are arguably permissible under both applicable law and codes of medical ethics. Further, physicians are not required even to disclose their financial conflicts when advising patients to enroll in a clinical experiment. This article explores differences between the medical and legal professions' treatments of conflicts of interest in order to explain 1) why physicians have failed to adequately address conflicts not only in clinical research, but also in other aspects of medical practice, and 2) how these conflicts should be addressed. The article concludes that physicians do not fail to recognize that there may be conflicts between their financial interests and the interests of their patients, but rather that the typical physician's response is that conflicts of interest are pervasive in medical practice and it is the ethical duty of physicians to resist temptation. Under such a broad definition of conflicts of interest, it is not surprising that physicians resist required disclosures or other precautionary measures. Lawyers, however, do not typically define "conflicts of interest" as broadly as physicians, but rather confine "conflict-of-interest doctrine" to circumstances that are unique to specific lawyers. The article further concludes that many (but not all) of the types of conflicts currently facing clinical researchers are proper subjects for regulation by conflict-of-interest doctrine. Applying this doctrine, it is clear that most cases will involve conflicts of interest that, at a minimum, must be disclosed to the patient. At least some conflicts, however, should be deemed nonconsentable, such as the receipt of financial incentives for enrolling patients in clinical studies, given the lack of benefits of permitting such payments, either to society at large or to patients themselves.
{"title":"What Doctors Can Learn From Lawyers About Conflicts of Interest","authors":"N. Moore","doi":"10.2139/SSRN.275078","DOIUrl":"https://doi.org/10.2139/SSRN.275078","url":null,"abstract":"Some physicians are receiving financial incentives for enrolling their patients in clinical studies, while others have financial interests in companies that will profit from the products under investigation. These practices are arguably permissible under both applicable law and codes of medical ethics. Further, physicians are not required even to disclose their financial conflicts when advising patients to enroll in a clinical experiment. This article explores differences between the medical and legal professions' treatments of conflicts of interest in order to explain 1) why physicians have failed to adequately address conflicts not only in clinical research, but also in other aspects of medical practice, and 2) how these conflicts should be addressed. The article concludes that physicians do not fail to recognize that there may be conflicts between their financial interests and the interests of their patients, but rather that the typical physician's response is that conflicts of interest are pervasive in medical practice and it is the ethical duty of physicians to resist temptation. Under such a broad definition of conflicts of interest, it is not surprising that physicians resist required disclosures or other precautionary measures. Lawyers, however, do not typically define \"conflicts of interest\" as broadly as physicians, but rather confine \"conflict-of-interest doctrine\" to circumstances that are unique to specific lawyers. The article further concludes that many (but not all) of the types of conflicts currently facing clinical researchers are proper subjects for regulation by conflict-of-interest doctrine. Applying this doctrine, it is clear that most cases will involve conflicts of interest that, at a minimum, must be disclosed to the patient. At least some conflicts, however, should be deemed nonconsentable, such as the receipt of financial incentives for enrolling patients in clinical studies, given the lack of benefits of permitting such payments, either to society at large or to patients themselves.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"81 1","pages":"445"},"PeriodicalIF":1.7,"publicationDate":"2001-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.275078","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68288729","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 some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts. Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement. Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.
{"title":"Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?","authors":"Sara Sun Beale","doi":"10.2139/SSRN.274930","DOIUrl":"https://doi.org/10.2139/SSRN.274930","url":null,"abstract":"This article explores some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts. Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement. Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"80 1","pages":"1227"},"PeriodicalIF":1.7,"publicationDate":"2001-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68287920","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 this article, Christopher Peters responds to arguments made by Kenneth Simons in The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000), in which Professor Simons defends the normative value of equal treatment against Peters’s earlier critiques. Peters first explains and justifies his attack on deontological rather than consequentialist motivations for equal treatment. He then articulates a difference between two distinct conceptions of “treatment”: an outcome-focused and an holistic conception. Peters argues that the holistic conception must be accepted by anyone who defends a deontological theory of equality. Peters then explains how certain of Simons’s arguments in defense of deontological equality reflect either a mistaken reliance on an outcome-focused conception of treatments or a misunderstanding of the implications of an holistic conception.
在这篇文章中，克里斯托弗·彼得斯回应了肯尼斯·西蒙斯在《平等主义规范的逻辑》(The Logic of Egalitarian Norms, 80 B.U. REV. 693(2000))中提出的论点，在这篇文章中，西蒙斯教授捍卫了平等待遇的规范价值，反对彼得斯早期的批评。彼得斯首先解释并证明了他对平等待遇的义务论动机而不是结果主义动机的攻击。然后，他阐明了两种截然不同的“治疗”概念之间的区别:以结果为中心的概念和整体概念。彼得斯认为，任何捍卫义务论平等理论的人都必须接受整体概念。然后，彼得斯解释了西蒙斯为义务论平等辩护的某些论点是如何反映了对以结果为中心的治疗概念的错误依赖，或者对整体概念的含义的误解。
{"title":"Outcomes, Reasons, and Equality","authors":"Christopher J. Peters","doi":"10.2139/SSRN.1483176","DOIUrl":"https://doi.org/10.2139/SSRN.1483176","url":null,"abstract":"In this article, Christopher Peters responds to arguments made by Kenneth Simons in The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000), in which Professor Simons defends the normative value of equal treatment against Peters’s earlier critiques. Peters first explains and justifies his attack on deontological rather than consequentialist motivations for equal treatment. He then articulates a difference between two distinct conceptions of “treatment”: an outcome-focused and an holistic conception. Peters argues that the holistic conception must be accepted by anyone who defends a deontological theory of equality. Peters then explains how certain of Simons’s arguments in defense of deontological equality reflect either a mistaken reliance on an outcome-focused conception of treatments or a misunderstanding of the implications of an holistic conception.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"80 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2000-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185989","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 Logic of Egalitarian Norms" was prompted by a recent article by Christopher J. Peters, "Equality Revisited," 110 Harv. L. Rev. 1210 (1997), arguing that the concept of equality is self-contradictory and sometimes leads to absurd results, such as the multiplication of wrongs or wasteful "leveling down" of social benefits. Peters' view is shared by other recent skeptical commentators who question the value of egalitarian norms or who worry that such norms are often misleading. The article defends egalitarian logic against such skepticism in a wide variety of legal domains.
{"title":"The Logic of Egalitarian Norms","authors":"K. Simons","doi":"10.2139/SSRN.211648","DOIUrl":"https://doi.org/10.2139/SSRN.211648","url":null,"abstract":"\"The Logic of Egalitarian Norms\" was prompted by a recent article by Christopher J. Peters, \"Equality Revisited,\" 110 Harv. L. Rev. 1210 (1997), arguing that the concept of equality is self-contradictory and sometimes leads to absurd results, such as the multiplication of wrongs or wasteful \"leveling down\" of social benefits. Peters' view is shared by other recent skeptical commentators who question the value of egalitarian norms or who worry that such norms are often misleading. The article defends egalitarian logic against such skepticism in a wide variety of legal domains.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"80 1","pages":"693"},"PeriodicalIF":1.7,"publicationDate":"1999-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67919845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1996-02-01DOI: 10.1093/acprof:oso/9780199599493.003.0009
M. Moore
{"title":"Prima facie moral culpability","authors":"M. Moore","doi":"10.1093/acprof:oso/9780199599493.003.0009","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199599493.003.0009","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"3 1","pages":"319-332"},"PeriodicalIF":1.7,"publicationDate":"1996-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60652019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1992-01-01DOI: 10.1093/acprof:oso/9780198260691.003.0013
J. Raz
{"title":"The Relevance of Coherence","authors":"J. Raz","doi":"10.1093/acprof:oso/9780198260691.003.0013","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198260691.003.0013","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"72 1","pages":"273"},"PeriodicalIF":1.7,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60643855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1986-01-01DOI: 10.1007/978-94-009-2931-9_6
D. Kaye
{"title":"Do We Need a Calculus of Weight to Understand Proof Beyond a Reasonable Doubt","authors":"D. Kaye","doi":"10.1007/978-94-009-2931-9_6","DOIUrl":"https://doi.org/10.1007/978-94-009-2931-9_6","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"66 1","pages":"657"},"PeriodicalIF":1.7,"publicationDate":"1986-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51520903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1986-01-01DOI: 10.1007/978-94-009-2931-9_4
R. Allen
{"title":"Analyzing the Process of Proof: A Brief Rejoinder","authors":"R. Allen","doi":"10.1007/978-94-009-2931-9_4","DOIUrl":"https://doi.org/10.1007/978-94-009-2931-9_4","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"20 1","pages":"479-486"},"PeriodicalIF":1.7,"publicationDate":"1986-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51520855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1986-01-01DOI: 10.1007/978-94-009-2931-9_2
R. Allen
{"title":"Reconceptualization of Civil Trials","authors":"R. Allen","doi":"10.1007/978-94-009-2931-9_2","DOIUrl":"https://doi.org/10.1007/978-94-009-2931-9_2","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":"66 1","pages":"401-437"},"PeriodicalIF":1.7,"publicationDate":"1986-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51520777","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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