This Essay examines the formal law of enablement, focusing on a perceived split in the enablement doctrine: whether disclosure of a single mode of an invention is necessarily sufficient to satisfy the requirement of enablement or whether the full scope of the claim must be enabled. In examining this split, this Essay articulates the enablement inquiry in conceptual terms, identifying two elements of the courts’ analyses that are implicit in every enablement determination: the nature of enablement disputes as challenges and the articulation of a target or targets that must be enabled. With this understanding in mind, the “full scope” and “any mode” language are easily reconciled: for any given target, one mode suffices. But each and every target must be enabled. More broadly, recognizing the process of target articulation implicit in every enablement inquiry leads to a conceptually simpler, and more generalizeable, understanding of how the requirement operates in practice.
{"title":"The Doctrinal Structure of Patent Law's Enablement Requirement","authors":"Jason A. Rantanen","doi":"10.31235/osf.io/b7kxa","DOIUrl":"https://doi.org/10.31235/osf.io/b7kxa","url":null,"abstract":"This Essay examines the formal law of enablement, focusing on a perceived split in the enablement doctrine: whether disclosure of a single mode of an invention is necessarily sufficient to satisfy the requirement of enablement or whether the full scope of the claim must be enabled. In examining this split, this Essay articulates the enablement inquiry in conceptual terms, identifying two elements of the courts’ analyses that are implicit in every enablement determination: the nature of enablement disputes as challenges and the articulation of a target or targets that must be enabled. With this understanding in mind, the “full scope” and “any mode” language are easily reconciled: for any given target, one mode suffices. But each and every target must be enabled. More broadly, recognizing the process of target articulation implicit in every enablement inquiry leads to a conceptually simpler, and more generalizeable, understanding of how the requirement operates in practice.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2016-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652321","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, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called "requester pays" is too extreme. But we also think the current regime — so called "producer pays" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.
{"title":"One-Way Fee Shifting after Summary Judgment","authors":"Brian T. Fitzpatrick, Cameron T. Norris","doi":"10.2139/SSRN.2845627","DOIUrl":"https://doi.org/10.2139/SSRN.2845627","url":null,"abstract":"New, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called \"requester pays\" is too extreme. But we also think the current regime — so called \"producer pays\" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2016-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68383732","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}
INTRODUCTIONSuppose, in the near future, that police start using an algorithmic tool-the Contraband Detector-to locate residences likely to contain illegal weapons. When the tool was first developed, its outputs were thirty percent accurate. With time, however, machine learning refined the tool.1 Now its accuracy rate hovers around eighty percent, and data scientists, having recently “audited” the Contraband Detector,2 report that the tool’s performance will only continue to improve. When the tool locates a suspicious residence, it does not explain why; it simply displays an address. And because of the tool’s complexity-it draws on more than one hundred input-variables- officers have no idea which variables are determinative in a given case.3Here is the puzzle. Imagine the Contraband Detector, deployed in New York City, turns up “285 Court St., Apt. 2L,” prompting the NYPD to seek a search warrant. When the judge asks about probable cause, the officers point to one, and only one, fact: the tool’s performance rate.4 Should the judge sign the warrant? Or better yet: Could the judge’s role in the process simply be eliminated-at least in principle-such that any time the tool identifies a suspicious residence, a search warrant issues automatically?5 In other words, suppose the next generation of tool, operating on the same logic, is not a Contraband Detector, but an Automatic Warrant Machine. Assuming the tool continues to perform at a high level of statistical precision, would its use-in lieu of judicial oversight-be consistent with the Fourth Amendment?There is a powerful and widespread intuition that the answer to these questions is no.6 Performance aside, blind reliance on an algorithmic tool feels uncomfortable. It misses the point of particularized suspicion.7 But why? On its face, probable cause would seem to depend on the probability that a “person[ ], house[ ], paper[ ] or effect[ ]” is linked to wrongdoing.8 In the example, it is eighty percent probable that 285 Court St., Apt. 2L contains an illegal weapon. So probable cause, literally construed, should be satisfied.I propose a simple solution to this puzzle. For probable cause to be satisfied, an inference of wrongdoing must be plausible-the police must be able to explain why observed facts give rise to the inference.9 And judges must have an opportunity to scrutinize that explanation: to test its overall intelligibility; to weigh it against the best innocent account on the other side; and to evaluate its consistency with background values, flowing from the Constitution, from general legality principles, and from other sources of positive law.10This hardly means that prediction tools have no place in policing or in other areas of governance. It means, rather, that their role is to aid human reasoning, not to supplant it.11 Outputs from prediction tools, like outputs from other detection instruments, such as drug dogs,12 can certainly be among the facts that police adduce-in an explanatory
{"title":"Plausible Cause: Explanatory Standards in the Age of Powerful Machines","authors":"Kiel Brennan-Marquez","doi":"10.2139/SSRN.2827733","DOIUrl":"https://doi.org/10.2139/SSRN.2827733","url":null,"abstract":"INTRODUCTIONSuppose, in the near future, that police start using an algorithmic tool-the Contraband Detector-to locate residences likely to contain illegal weapons. When the tool was first developed, its outputs were thirty percent accurate. With time, however, machine learning refined the tool.1 Now its accuracy rate hovers around eighty percent, and data scientists, having recently “audited” the Contraband Detector,2 report that the tool’s performance will only continue to improve. When the tool locates a suspicious residence, it does not explain why; it simply displays an address. And because of the tool’s complexity-it draws on more than one hundred input-variables- officers have no idea which variables are determinative in a given case.3Here is the puzzle. Imagine the Contraband Detector, deployed in New York City, turns up “285 Court St., Apt. 2L,” prompting the NYPD to seek a search warrant. When the judge asks about probable cause, the officers point to one, and only one, fact: the tool’s performance rate.4 Should the judge sign the warrant? Or better yet: Could the judge’s role in the process simply be eliminated-at least in principle-such that any time the tool identifies a suspicious residence, a search warrant issues automatically?5 In other words, suppose the next generation of tool, operating on the same logic, is not a Contraband Detector, but an Automatic Warrant Machine. Assuming the tool continues to perform at a high level of statistical precision, would its use-in lieu of judicial oversight-be consistent with the Fourth Amendment?There is a powerful and widespread intuition that the answer to these questions is no.6 Performance aside, blind reliance on an algorithmic tool feels uncomfortable. It misses the point of particularized suspicion.7 But why? On its face, probable cause would seem to depend on the probability that a “person[ ], house[ ], paper[ ] or effect[ ]” is linked to wrongdoing.8 In the example, it is eighty percent probable that 285 Court St., Apt. 2L contains an illegal weapon. So probable cause, literally construed, should be satisfied.I propose a simple solution to this puzzle. For probable cause to be satisfied, an inference of wrongdoing must be plausible-the police must be able to explain why observed facts give rise to the inference.9 And judges must have an opportunity to scrutinize that explanation: to test its overall intelligibility; to weigh it against the best innocent account on the other side; and to evaluate its consistency with background values, flowing from the Constitution, from general legality principles, and from other sources of positive law.10This hardly means that prediction tools have no place in policing or in other areas of governance. It means, rather, that their role is to aid human reasoning, not to supplant it.11 Outputs from prediction tools, like outputs from other detection instruments, such as drug dogs,12 can certainly be among the facts that police adduce-in an explanatory ","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2016-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68361748","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}
After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.
{"title":"Incarceration Incentives in the Decarceration Era","authors":"Avlana K. Eisenberg","doi":"10.2139/SSRN.2719013","DOIUrl":"https://doi.org/10.2139/SSRN.2719013","url":null,"abstract":"After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2016-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68272161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity of business corporations. The result is a new reliance on state corporate law that gives a quasi-constitutional dimension to governance rules that were developed in a different era and with a different focus. The Article further illuminates the specific areas of mismatch between modern corporate rights doctrine and state corporate law. This examination offers two insights often overlooked in contemporary debate. First, it provides a deeper grounding for understanding where the Court has gone wrong and the importance of corporate governance proposals raised in the aftermath of its recent decisions. Second, the Article shows that the significance of the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. extends beyond issues of women’s rights and sexual orientation, as is often emphasized. The decision undermines the very assumptions on which corporate law has been built: that private ordering and external regulations can be relied upon to address concerns that corporate law has been given a pass to ignore.
{"title":"Constitutionalizing Corporate Law","authors":"Elizabeth Pollman","doi":"10.2139/SSRN.2661115","DOIUrl":"https://doi.org/10.2139/SSRN.2661115","url":null,"abstract":"The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity of business corporations. The result is a new reliance on state corporate law that gives a quasi-constitutional dimension to governance rules that were developed in a different era and with a different focus. The Article further illuminates the specific areas of mismatch between modern corporate rights doctrine and state corporate law. This examination offers two insights often overlooked in contemporary debate. First, it provides a deeper grounding for understanding where the Court has gone wrong and the importance of corporate governance proposals raised in the aftermath of its recent decisions. Second, the Article shows that the significance of the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. extends beyond issues of women’s rights and sexual orientation, as is often emphasized. The decision undermines the very assumptions on which corporate law has been built: that private ordering and external regulations can be relied upon to address concerns that corporate law has been given a pass to ignore.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2015-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68244081","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}
Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows, of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that attempts to compare and evaluate the varieties of staff management techniques employed by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of 75 judges drawn from a number of different federal courts of appeals.
{"title":"The Management of Staff by Federal Court of Appeals Judges","authors":"Mitu G. Gulati, R. Posner","doi":"10.2139/SSRN.2590179","DOIUrl":"https://doi.org/10.2139/SSRN.2590179","url":null,"abstract":"Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows, of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that attempts to compare and evaluate the varieties of staff management techniques employed by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of 75 judges drawn from a number of different federal courts of appeals.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2015-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68213962","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}
Since its groundbreaking decision in Employment Division v. Smith, the Supreme Court has maintained needlessly inconsistent standards of review for generally applicable laws that indirectly burden First Amendment–protected conduct. When a generally applicable law indirectly suppresses symbolic speech or expressive conduct, courts apply the O’Brien test, a carefully structured form of intermediate review. However, when an identical law suppresses religious conduct, under Smith, only rational basis review obtains. By applying intermediate scrutiny to laws that indirectly burden expressive conduct but a rational basis standard to laws that burden expressed belief, the Court has done exactly what it claims to be avoiding: it has subordinated religious belief to political and philosophical opinion.This Note traces the doctrinal roots of this assymetry, concluding that expressive conduct is often functionally indistinguishable from expressed belief. Acts of worship and the observance of sacrament, like expressive conduct, are the physical manifestation of deeply held, constitutionally protected beliefs. This Note then moves to two practical solutions. In the short term, creative advocates should plead free exercise and free speech claims in the alternative in an effort to obtain the heightened protection of free speech law. One example of this approach is Fifth Avenue Presbyterian Church v. City of New York, where the church argued (successfully) that allowing homeless persons to sleep on their steps was a “highly particularized, easily understood, religious and political message.” As a long-term solution, intermediate scrutiny should be the controlling standard of review, regardless of whether the font of expression is political opinion or religious conviction. An intermediate approach coheres with the original public meaning of the First Amendment and eliminates the need for the categorical exemptions that have developed under current case law.
自“就业部门诉史密斯案”(Employment Division v. Smith)的开创性判决以来，最高法院对普遍适用的法律维持了不必要的不一致的审查标准，这些标准间接加重了受第一修正案保护的行为的负担。当一项普遍适用的法律间接抑制象征性言论或表达性行为时，法院采用奥布莱恩检验，这是一种结构严谨的中间审查形式。然而，当同一法律禁止宗教行为时，在史密斯看来，只有理性基础审查才能获得。法院对间接加重表达性行为负担的法律采用中间审查，而对加重表达性信仰负担的法律采用理性基础标准，这正是它声称要避免的:它使宗教信仰服从于政治和哲学意见。本笔记追溯了这种不对称的教义根源，得出的结论是，表达性的行为在功能上往往与表达的信仰难以区分。崇拜和遵守圣礼的行为，就像表达行为一样，是根深蒂固的、受宪法保护的信仰的身体表现。本文接着讨论两个实际的解决方案。在短期内，创造性的倡导者应该在替代方案中提出自由行使和言论自由的主张，以努力获得言论自由法律的高度保护。这种方法的一个例子是第五大道长老会教会诉纽约市案，该教会辩称(成功地)允许无家可归者睡在他们的台阶上是一种“高度具体、易于理解的宗教和政治信息”。作为一个长期的解决办法，中间审查应该是审查的控制标准，无论表达的字体是政治意见还是宗教信仰。中间方法与第一修正案最初的公共含义相一致，并消除了根据现行判例法发展起来的绝对豁免的必要性。
{"title":"Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct","authors":"Danielle Hay","doi":"10.2139/SSRN.2572857","DOIUrl":"https://doi.org/10.2139/SSRN.2572857","url":null,"abstract":"Since its groundbreaking decision in Employment Division v. Smith, the Supreme Court has maintained needlessly inconsistent standards of review for generally applicable laws that indirectly burden First Amendment–protected conduct. When a generally applicable law indirectly suppresses symbolic speech or expressive conduct, courts apply the O’Brien test, a carefully structured form of intermediate review. However, when an identical law suppresses religious conduct, under Smith, only rational basis review obtains. By applying intermediate scrutiny to laws that indirectly burden expressive conduct but a rational basis standard to laws that burden expressed belief, the Court has done exactly what it claims to be avoiding: it has subordinated religious belief to political and philosophical opinion.This Note traces the doctrinal roots of this assymetry, concluding that expressive conduct is often functionally indistinguishable from expressed belief. Acts of worship and the observance of sacrament, like expressive conduct, are the physical manifestation of deeply held, constitutionally protected beliefs. This Note then moves to two practical solutions. In the short term, creative advocates should plead free exercise and free speech claims in the alternative in an effort to obtain the heightened protection of free speech law. One example of this approach is Fifth Avenue Presbyterian Church v. City of New York, where the church argued (successfully) that allowing homeless persons to sleep on their steps was a “highly particularized, easily understood, religious and political message.” As a long-term solution, intermediate scrutiny should be the controlling standard of review, regardless of whether the font of expression is political opinion or religious conviction. An intermediate approach coheres with the original public meaning of the First Amendment and eliminates the need for the categorical exemptions that have developed under current case law.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2572857","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68208889","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}
Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion — the authority to turn a blind eye to legal violations — may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This Article fills that gap. Through close examination of the Constitution’s text, structure, and normative underpinnings, as well as relevant historical practice, this Article demonstrates that constitutional authority for enforcement discretion exists — but it is both limited and defeasible. Presidents may properly decline to enforce civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” Congress also may expand the scope of executive enforcement discretion by authorizing broader nonenforcement. But absent such congressional authorization, the President’s nonenforcement authority extends neither to prospective licensing of prohibited conduct nor to policy-based nonenforcement of federal laws for entire categories of offenders. Presuming such forms of executive discretion would collide with another deeply rooted constitutional tradition: the principle that American Presidents, unlike English kings, lack authority to suspend statutes or grant dispensations that prospectively excuse legal violations. This framework not only clarifies the proper executive duty with respect to enforcement of federal statutes but also points the way to proper resolution of other recurrent separation of powers issues.
最近几任总统都声称拥有广泛的权力来拒绝执行联邦法律。例如，奥巴马政府宣布了一些政策，包括放弃对某些联邦大麻犯罪的调查和起诉，推迟执行《平价医疗法案》(Affordable Care Act)的关键条款，暂停执行针对某些非法移民的遣返法规。虽然这些例子突出了行政执法自由裁量权的行使——对违法行为视而不见的权力——可能有效地重塑联邦政策，但之前的学术研究并没有提供令人满意的解释，说明这种假定的行政权力的适当范围和宪法基础。本文填补了这一空白。通过对宪法文本、结构和规范基础以及相关历史实践的仔细研究，本文表明，宪法赋予执法自由裁量权的权力是存在的——但它既是有限的，也是不可推翻的。总统可以适当地拒绝在特定情况下执行民事和刑事禁令，尽管他们有义务确保“法律得到忠实执行”。国会还可以通过授权更广泛的不强制执行来扩大行政执法自由裁量权的范围。但是，如果没有这样的国会授权，总统的非执法权既不能延伸到对被禁止行为的许可，也不能延伸到对所有类别的违法者基于政策的联邦法律的非执行。假定这种形式的行政自由裁量权将与另一个根深蒂固的宪法传统相冲突:与英国国王不同，美国总统没有权力暂停法规或授予可能为违法行为开脱的豁免。这一框架不仅明确了在执行联邦法规方面适当的行政责任，而且指出了适当解决其他反复出现的三权分立问题的途径。
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Does the First Amendment follow the flag? On the one hand, the Supreme Court’s 2008 decision in Boumediene v. Bush categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad, it also made the application of such rights, the First Amendment presumably included, contingent on “objective factors and practical concerns.” In addition, as Boumediene affirmed previous decisions, it also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might also be without any constitutional recourse. The import and application of the decision outside the habeas context therefore remains unclear. But on the other hand, with regard to the First Amendment in particular, such ambiguity is replaced with tension. In the recent case of USAID v. Alliance for Open Society, although the fact that the speech was going to be uttered abroad was not mentioned in the decision, this factor was raised in several instances in the lower courts, and even in the oral arguments before the Supreme Court. An implication is that free speech rights, at least by U.S. registered entities or U.S. citizens, already exist abroad.This Article resolves this doctrinal ambiguity and argues that the First Amendment covers speech made beyond U.S. borders and should be so judicially recognized. It situates existing First Amendment precedents within the broader framework set by decisions pertaining to the Constitution’s extraterritorial application. In particular, it extends First Amendment coverage to both citizen and alien speech, in cases where either speech have been subject to government regulation outside traditional national borders. The two conceptions of the First Amendment, either as a right that accrues to the individual or as a structural limitation against the government support the interpretation of making it available to both citizens and aliens. Recognizing the extraterritorial First Amendment, however, is only the beginning. What are the implications of such recognition? In many instances, an extraterritorial speech right is more than likely to go against legitimate foreign policy interests as crafted by the political branches of government as well as international law since First Amendment jurisprudence is less restrictive than global standards on freedom of expression. In the last part of the paper, it looks at an area where this claim would have the greatest impact: that of government speech abroad.
第一修正案遵循国旗吗?一方面，最高法院在2008年的Boumediene v. Bush案中断然否决了宪法权利根本不适用于政府对海外外国人采取的行动的主张，它也使得这些权利的适用，可能包括第一修正案，取决于“客观因素和实际问题”。此外，正如Boumediene维持先前的决定一样，它还将其功能测试扩展到甚至美国公民，使他们处于可能没有任何宪法追索权的境地。因此，在人身保护令范围之外的决定的重要性和适用仍然不清楚。但另一方面，特别是关于第一修正案，这种模棱两可被紧张所取代。在最近的美国国际开发署(USAID)诉开放社会联盟(Alliance for Open Society)一案中，虽然判决中没有提到演讲将在国外发表这一事实，但在下级法院的几个案例中，甚至在最高法院的口头辩论中，这一因素都被提到了。言下之意是，至少在美国注册的实体或美国公民的言论自由权利，在国外已经存在。这一条款解决了这一理论歧义，并认为第一修正案涵盖了美国境外的言论，应该得到司法承认。它将现有的第一修正案先例置于与《宪法》的域外适用有关的决定所确定的更广泛框架内。特别是，它将第一修正案的适用范围扩大到公民和外国人的言论，如果其中任何一种言论受到传统国界以外的政府监管。《第一修正案》的两个概念，要么是个人享有的权利，要么是对政府的结构性限制，都支持对公民和外国人都享有这项权利的解释。然而，承认《第一修正案》的治外法权仅仅是个开始。这种认识意味着什么?在许多情况下，治外法权很可能与政府政治部门制定的合法外交政策利益以及国际法相抵触，因为第一修正案的判例对言论自由的限制不如全球标准。在论文的最后一部分，它着眼于一个领域，这一主张将产生最大的影响:政府的海外演讲。
{"title":"Speech Beyond Borders: Extraterritoriality and the First Amendment","authors":"Anna Su","doi":"10.2139/SSRN.2365583","DOIUrl":"https://doi.org/10.2139/SSRN.2365583","url":null,"abstract":"Does the First Amendment follow the flag? On the one hand, the Supreme Court’s 2008 decision in Boumediene v. Bush categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad, it also made the application of such rights, the First Amendment presumably included, contingent on “objective factors and practical concerns.” In addition, as Boumediene affirmed previous decisions, it also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might also be without any constitutional recourse. The import and application of the decision outside the habeas context therefore remains unclear. But on the other hand, with regard to the First Amendment in particular, such ambiguity is replaced with tension. In the recent case of USAID v. Alliance for Open Society, although the fact that the speech was going to be uttered abroad was not mentioned in the decision, this factor was raised in several instances in the lower courts, and even in the oral arguments before the Supreme Court. An implication is that free speech rights, at least by U.S. registered entities or U.S. citizens, already exist abroad.This Article resolves this doctrinal ambiguity and argues that the First Amendment covers speech made beyond U.S. borders and should be so judicially recognized. It situates existing First Amendment precedents within the broader framework set by decisions pertaining to the Constitution’s extraterritorial application. In particular, it extends First Amendment coverage to both citizen and alien speech, in cases where either speech have been subject to government regulation outside traditional national borders. The two conceptions of the First Amendment, either as a right that accrues to the individual or as a structural limitation against the government support the interpretation of making it available to both citizens and aliens. Recognizing the extraterritorial First Amendment, however, is only the beginning. What are the implications of such recognition? In many instances, an extraterritorial speech right is more than likely to go against legitimate foreign policy interests as crafted by the political branches of government as well as international law since First Amendment jurisprudence is less restrictive than global standards on freedom of expression. In the last part of the paper, it looks at an area where this claim would have the greatest impact: that of government speech abroad.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2013-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68143973","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}
Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for a “sea change” in the way the House of Representatives operates, with “a closer adherence to the U.S. Constitution.” To that end, Speaker Boehner amended House Rule XII to require members of Congress who introduce bills or joint resolutions to provide a Constitutional Authority Statement (“CAS”) outlining Congress’s authority to adopt the bill or joint resolution. This Essay identifies, explains, and critically explores four key deficiencies in the House Rule in light of the history of constitutional interpretation in Congress, the incentives of members of Congress, and the realities of the legislative process. While the House Rule represents an important step in improving the quality of constitutional deliberation in Congress, it is unnecessarily bureaucratic, underinclusive, and fails to capture the importance of constitutional interpretation for all members of Congress, not just the introducers of legislation. The Rule also reflects a severely limited notion of what constitutional issues need to be considered in voting on legislation by completely ignoring constitutional infirmities involving individual rights, civil liberties, and any other potential constitutional issue aside from Congress’s authority. To address these concerns, this Essay proposes an improved rule for adoption in the Senate. The proposed rule requires a CAS for all legislation — not just bills or joint resolutions — but only when that legislation will actually receive a vote. Furthermore, the proposed rule makes it clear that all members of Congress — not just the introducer — have an individual obligation to consider the constitutionality of legislation on which they vote. Finally, the proposed Senate rule requires a CAS to include not just information about Congress’s Article I authority but also to address other possible countervailing constitutional issues, like individual liberties.
{"title":"The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and a Proposed Rule for the Senate","authors":"R. Feingold","doi":"10.2139/SSRN.2296716","DOIUrl":"https://doi.org/10.2139/SSRN.2296716","url":null,"abstract":"Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for a “sea change” in the way the House of Representatives operates, with “a closer adherence to the U.S. Constitution.” To that end, Speaker Boehner amended House Rule XII to require members of Congress who introduce bills or joint resolutions to provide a Constitutional Authority Statement (“CAS”) outlining Congress’s authority to adopt the bill or joint resolution. This Essay identifies, explains, and critically explores four key deficiencies in the House Rule in light of the history of constitutional interpretation in Congress, the incentives of members of Congress, and the realities of the legislative process. While the House Rule represents an important step in improving the quality of constitutional deliberation in Congress, it is unnecessarily bureaucratic, underinclusive, and fails to capture the importance of constitutional interpretation for all members of Congress, not just the introducers of legislation. The Rule also reflects a severely limited notion of what constitutional issues need to be considered in voting on legislation by completely ignoring constitutional infirmities involving individual rights, civil liberties, and any other potential constitutional issue aside from Congress’s authority. To address these concerns, this Essay proposes an improved rule for adoption in the Senate. The proposed rule requires a CAS for all legislation — not just bills or joint resolutions — but only when that legislation will actually receive a vote. Furthermore, the proposed rule makes it clear that all members of Congress — not just the introducer — have an individual obligation to consider the constitutionality of legislation on which they vote. Finally, the proposed Senate rule requires a CAS to include not just information about Congress’s Article I authority but also to address other possible countervailing constitutional issues, like individual liberties.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2013-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2296716","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68076224","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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