{"title":"Fetal surgery and wrongful death actions on behalf of the unborn: an argument for a social standard.","authors":"Jonathan Dyer Stanley","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 5","pages":"1523-55"},"PeriodicalIF":1.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24835064","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 considers the extent to which federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors. Lower federal courts have long exercised power to sanction professional misconduct, but the Supreme Court has never made the source of this authority clear. Most federal districts have adopted local professional rules. Unless these standards can be justified as exercises of procedural or evidentiary rulemaking power delegated by Congress, their validity depends on the existence of independent federal court authority. Moreover, federal courts have imposed professional obligations on lawyers through judicial opinions. The resulting standards again can be justified, if at all, only by reference to independent judicial authority to regulate lawyers. The issues are especially significant with respect to regulation of federal prosecutors. Arguably, the standards of conduct for federal prosecutors should differ from standards governing private attorneys and state prosecutors. Who should impose those standards also is a complex issue. Federal courts prefer to consider these questions in evaluating specific allegations of prosecutorial misconduct in litigation, which leads to their setting standards in judicial opinions rather than rules. Whether they may follow this approach depends on the nature of their independent authority over lawyer regulation. The Article illustrates the potential sources of federal court authority, their uncertain reach, and questions that remain to be resolved for judicial regulation of federal lawyers. The analysis calls into question a host of recent judicial and academic assumptions about federal judicial regulatory power.
{"title":"Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory","authors":"Fred C. Zacharias, B. Green","doi":"10.2139/SSRN.449140","DOIUrl":"https://doi.org/10.2139/SSRN.449140","url":null,"abstract":"This article considers the extent to which federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors. Lower federal courts have long exercised power to sanction professional misconduct, but the Supreme Court has never made the source of this authority clear. Most federal districts have adopted local professional rules. Unless these standards can be justified as exercises of procedural or evidentiary rulemaking power delegated by Congress, their validity depends on the existence of independent federal court authority. Moreover, federal courts have imposed professional obligations on lawyers through judicial opinions. The resulting standards again can be justified, if at all, only by reference to independent judicial authority to regulate lawyers. The issues are especially significant with respect to regulation of federal prosecutors. Arguably, the standards of conduct for federal prosecutors should differ from standards governing private attorneys and state prosecutors. Who should impose those standards also is a complex issue. Federal courts prefer to consider these questions in evaluating specific allegations of prosecutorial misconduct in litigation, which leads to their setting standards in judicial opinions rather than rules. Whether they may follow this approach depends on the nature of their independent authority over lawyer regulation. The Article illustrates the potential sources of federal court authority, their uncertain reach, and questions that remain to be resolved for judicial regulation of federal lawyers. The analysis calls into question a host of recent judicial and academic assumptions about federal judicial regulatory power.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"1301"},"PeriodicalIF":1.9,"publicationDate":"2003-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68792577","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 paper explores the legal problems that arise when the government undertakes to render a criminal defendant competent to stand trial, by administering involuntary psychotropic medications. Among these problems are the infringement of the defendant's trial rights, such as the right to receive assistance of counsel and to confront witnesses, as well as interference with the defendant's ability to testify and to present evidence of a mental illness. This paper explores these problems with special reference to the case of Russell Weston, who has been charged with murder in the deaths of two Capitol police officers and who spent more than three years in a federal correctional facility while the District of Columbia federal courts decided whether the government could administer involuntary medications for the purpose of rendering him competent to stand trial. The paper concludes that because the unfair prejudice resulting from involuntary medications cannot be cured, the government should be prohibited from administering involuntary medications to a defendant during trial.
{"title":"Trial rights and psychotropic drugs: the case against administering involuntary medications to a defendant during trial.","authors":"Dora W. Klein","doi":"10.2139/SSRN.412022","DOIUrl":"https://doi.org/10.2139/SSRN.412022","url":null,"abstract":"This paper explores the legal problems that arise when the government undertakes to render a criminal defendant competent to stand trial, by administering involuntary psychotropic medications. Among these problems are the infringement of the defendant's trial rights, such as the right to receive assistance of counsel and to confront witnesses, as well as interference with the defendant's ability to testify and to present evidence of a mental illness. This paper explores these problems with special reference to the case of Russell Weston, who has been charged with murder in the deaths of two Capitol police officers and who spent more than three years in a federal correctional facility while the District of Columbia federal courts decided whether the government could administer involuntary medications for the purpose of rendering him competent to stand trial. The paper concludes that because the unfair prejudice resulting from involuntary medications cannot be cured, the government should be prohibited from administering involuntary medications to a defendant during trial.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 1 1","pages":"165-218"},"PeriodicalIF":1.9,"publicationDate":"2003-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68701192","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 business judgment rule is corporate law's central doctrine, pervasively affecting the roles of directors, officers, and controlling shareholders. Increasingly, moreover, versions of the business judgment rule are found in the law governing the other types of business organizations, ranging from such common forms as the general partnership to such unusual ones as the reciprocal insurance exchange. Yet, curiously, there is relatively little agreement as to either the theoretical underpinnings of or policy justification for the rule. This gap in our understanding has important doctrinal implications. As this paper demonstrates, a string of recent decisions by the Delaware supreme court based on a misconception of the business judgment rule's role in corporate governance has taken the law in a highly undesirable direction. Two conceptions of the business judgment rule compete in the case law. One views the business judgment rule as a standard of liability under which courts undertake some objective review of the merits of board decisions. This view is increasingly widely accepted, especially by some members of the Delaware supreme court. The other conception treats the rule not as a standard of review but as a doctrine of abstention, pursuant to which courts simply decline to review board decisions. The distinction between these conceptions matters a great deal. Under the former, for example, it is far more likely that claims against the board of directors will survive through the summary judgment phase of litigation, which at the very least raises the settlement value of shareholder litigation and even can have outcome-determinative effects. Like many recent corporate law developments, the standard of review conception of the business judgment rule is based on a shareholder primacy-based theory of the corporation. This article extends the author's recent work on a competing theory of the firm, known as director primacy, pursuant to which the board of directors is viewed as the nexus of the set of contracts that makes up the firm. In this model, the defining tension of corporate law is that between authority and accountability. Because one cannot make directors more accountable without infringing on their exercise of authority, courts must be reluctant to review the director decisions absent evidence of the sort of self-dealing that raises very serious accountability concerns. In this article, the author argues that only the abstention version of the business judgment rule properly operationalizes this approach.
{"title":"The Business Judgment Rule as Abstention Doctrine","authors":"Stephen M. Bainbridge","doi":"10.2139/SSRN.429260","DOIUrl":"https://doi.org/10.2139/SSRN.429260","url":null,"abstract":"The business judgment rule is corporate law's central doctrine, pervasively affecting the roles of directors, officers, and controlling shareholders. Increasingly, moreover, versions of the business judgment rule are found in the law governing the other types of business organizations, ranging from such common forms as the general partnership to such unusual ones as the reciprocal insurance exchange. Yet, curiously, there is relatively little agreement as to either the theoretical underpinnings of or policy justification for the rule. This gap in our understanding has important doctrinal implications. As this paper demonstrates, a string of recent decisions by the Delaware supreme court based on a misconception of the business judgment rule's role in corporate governance has taken the law in a highly undesirable direction. Two conceptions of the business judgment rule compete in the case law. One views the business judgment rule as a standard of liability under which courts undertake some objective review of the merits of board decisions. This view is increasingly widely accepted, especially by some members of the Delaware supreme court. The other conception treats the rule not as a standard of review but as a doctrine of abstention, pursuant to which courts simply decline to review board decisions. The distinction between these conceptions matters a great deal. Under the former, for example, it is far more likely that claims against the board of directors will survive through the summary judgment phase of litigation, which at the very least raises the settlement value of shareholder litigation and even can have outcome-determinative effects. Like many recent corporate law developments, the standard of review conception of the business judgment rule is based on a shareholder primacy-based theory of the corporation. This article extends the author's recent work on a competing theory of the firm, known as director primacy, pursuant to which the board of directors is viewed as the nexus of the set of contracts that makes up the firm. In this model, the defining tension of corporate law is that between authority and accountability. Because one cannot make directors more accountable without infringing on their exercise of authority, courts must be reluctant to review the director decisions absent evidence of the sort of self-dealing that raises very serious accountability concerns. In this article, the author argues that only the abstention version of the business judgment rule properly operationalizes this approach.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"57 1","pages":"81"},"PeriodicalIF":1.9,"publicationDate":"2003-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.429260","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764757","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}
Successful ballot measures are commonly perceived as a pure reflection of "the will of the people." Yet initiatives do not appear magically on election ballots or in statute books as a result of the electorate's wishes. Rather, such measures are conceived, drafted, and vigorously promoted by identifiable initiative proponents, who often represent particular special interests and may not even live in the communities in which their measures are proposed. The myth of popular sovereignty in direct democracy should be rejected. Instead, initiative measures should be characterized as lawmaking by initiative proponents, whose general objective is either ratified or rejected by the voters. Rejecting the myth of popular sovereignty in direct democracy would alleviate many of the problems of judicial review that commentators have identified. By treating the initiative proponents as the relevant lawmakers, courts would be able to identify impermissible motives underlying a measure's enactment and continue using an intentionalist methodology of statutory interpretation without resorting to a counterproductive fiction of "voter intent." On the other hand, express recognition that direct democracy involves lawmaking by initiative proponents intensifies the tension between direct democracy and representative government, the problems associated with the delegation of lawmaking authority to unelected actors, and the absence of safeguards to encourage careful deliberation and reasoned decisionmaking in the initiative process. Initiative proponents are not the only unelected lawmakers in our democracy. Administrative agencies have freely enacted binding rules based on broad delegations of authority since the New Deal. This development has always been considered constitutionally suspect, but courts have allowed it to continue unabated largely because administrative law has developed alternative safeguards to replace those provided in the legislative process by representation and the requirements of Article I, Section 7. Specifically, administrative agencies must comply with the notice-and-comment procedures of the Administrative Procedure Act, and their final rules must withstand hard-look judicial review. Those safeguards ensure that agency officials engage in careful deliberation and reasoned decision-making and have thereby legitimized agency lawmaking. A similar model is needed to constrain the proponents of ballot measures and thereby legitimize the use of direct democracy. This Article therefore draws on the agency model to propose amending state laws that regulate direct democracy to subject the proponents of initiatives to the requirements of public deliberation and reasoned decisionmaking that presently constrain administrative agencies. The Article argues that unlike previous proposals, such reforms would promote careful deliberation, improve the legislative product, and provide a heightened standard of judicial review that is well established and directly
{"title":"Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy","authors":"G. Staszewski","doi":"10.2139/SSRN.405520","DOIUrl":"https://doi.org/10.2139/SSRN.405520","url":null,"abstract":"Successful ballot measures are commonly perceived as a pure reflection of \"the will of the people.\" Yet initiatives do not appear magically on election ballots or in statute books as a result of the electorate's wishes. Rather, such measures are conceived, drafted, and vigorously promoted by identifiable initiative proponents, who often represent particular special interests and may not even live in the communities in which their measures are proposed. The myth of popular sovereignty in direct democracy should be rejected. Instead, initiative measures should be characterized as lawmaking by initiative proponents, whose general objective is either ratified or rejected by the voters. Rejecting the myth of popular sovereignty in direct democracy would alleviate many of the problems of judicial review that commentators have identified. By treating the initiative proponents as the relevant lawmakers, courts would be able to identify impermissible motives underlying a measure's enactment and continue using an intentionalist methodology of statutory interpretation without resorting to a counterproductive fiction of \"voter intent.\" On the other hand, express recognition that direct democracy involves lawmaking by initiative proponents intensifies the tension between direct democracy and representative government, the problems associated with the delegation of lawmaking authority to unelected actors, and the absence of safeguards to encourage careful deliberation and reasoned decisionmaking in the initiative process. Initiative proponents are not the only unelected lawmakers in our democracy. Administrative agencies have freely enacted binding rules based on broad delegations of authority since the New Deal. This development has always been considered constitutionally suspect, but courts have allowed it to continue unabated largely because administrative law has developed alternative safeguards to replace those provided in the legislative process by representation and the requirements of Article I, Section 7. Specifically, administrative agencies must comply with the notice-and-comment procedures of the Administrative Procedure Act, and their final rules must withstand hard-look judicial review. Those safeguards ensure that agency officials engage in careful deliberation and reasoned decision-making and have thereby legitimized agency lawmaking. A similar model is needed to constrain the proponents of ballot measures and thereby legitimize the use of direct democracy. This Article therefore draws on the agency model to propose amending state laws that regulate direct democracy to subject the proponents of initiatives to the requirements of public deliberation and reasoned decisionmaking that presently constrain administrative agencies. The Article argues that unlike previous proposals, such reforms would promote careful deliberation, improve the legislative product, and provide a heightened standard of judicial review that is well established and directly","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"395"},"PeriodicalIF":1.9,"publicationDate":"2003-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68685690","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 the appearance nearly ten years ago of Professor Toni Massaro's critique of the feasibility of shaming punishments in America, scholars have heatedly debated the practicality of and justifications for a variety of alternatives to incarceration in publicly managed prisons. A popular assumption on both sides of the debate over alternative sanctions has been that retributivism, as a conceptual justification for punishment, is fully compatible with shaming punishments, the most controversial form of alternative sanctions. Indeed, Professor James Whitman has even gone so far as to call shaming punishments "beautifully retributive." This Article offers a retributivist critique of shaming punishments, and in so doing, challenges that consensus. Offering a theory called the Confrontational Conception of Retribution (CCR), Dan Markel not only explains why retributivism is hostile to shaming punishments, but also how retributivism can commend creative alternatives to the extensive reliance upon public prisons.
{"title":"Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate","authors":"Dan Markel","doi":"10.2139/SSRN.410922","DOIUrl":"https://doi.org/10.2139/SSRN.410922","url":null,"abstract":"Since the appearance nearly ten years ago of Professor Toni Massaro's critique of the feasibility of shaming punishments in America, scholars have heatedly debated the practicality of and justifications for a variety of alternatives to incarceration in publicly managed prisons. A popular assumption on both sides of the debate over alternative sanctions has been that retributivism, as a conceptual justification for punishment, is fully compatible with shaming punishments, the most controversial form of alternative sanctions. Indeed, Professor James Whitman has even gone so far as to call shaming punishments \"beautifully retributive.\" This Article offers a retributivist critique of shaming punishments, and in so doing, challenges that consensus. Offering a theory called the Confrontational Conception of Retribution (CCR), Dan Markel not only explains why retributivism is hostile to shaming punishments, but also how retributivism can commend creative alternatives to the extensive reliance upon public prisons.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"54 1","pages":"2155"},"PeriodicalIF":1.9,"publicationDate":"2003-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.410922","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68696607","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 United States Supreme Court has begun to reshape the architecture of federalism in a variety of controversial ways but has failed to reveal much about the blueprint with which it is working. In the eyes of many critics, the Court's recent rulings regarding the Commerce Clause, "commandeering," and the states' sovereign immunity are united only by an ideological desire to strip power from the federal government and confer upon the states a hazy aura of dignity. This Article contends that the Court is edging closer to a promising theory of federalism than either the Court or its critics seem to realize. Returning to forgotten themes in the Federalist Papers, the Article argues that the state and federal governments compete with one another for the "affection" of their citizens and for the regulatory power that often accompanies that affection. The Article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns' dealings with one another must be sufficiently transparent to enable citizens to allocate praise and blame in an accurate fashion. The Article then argues that, although the Court has not characterized its federalism rulings in this way, and although one may question whether the judiciary is ultimately competent to play an ongoing, prominent role in preserving the marketplace's vitality, the Court appears determined to ensure that these three market requirements are satisfied. The Article concludes by urging courts and scholars to consider the ways in which the marketplace's health may best be preserved and the ways in which a broad range of legal doctrines and lawmaking practices frustrate or advance federalism's forgotten objective of competition between the two sovereigns.
{"title":"Competing for the People's Affection: Federalism's Forgotten Marketplace","authors":"T. E. Pettys","doi":"10.2139/SSRN.391021","DOIUrl":"https://doi.org/10.2139/SSRN.391021","url":null,"abstract":"The United States Supreme Court has begun to reshape the architecture of federalism in a variety of controversial ways but has failed to reveal much about the blueprint with which it is working. In the eyes of many critics, the Court's recent rulings regarding the Commerce Clause, \"commandeering,\" and the states' sovereign immunity are united only by an ideological desire to strip power from the federal government and confer upon the states a hazy aura of dignity. This Article contends that the Court is edging closer to a promising theory of federalism than either the Court or its critics seem to realize. Returning to forgotten themes in the Federalist Papers, the Article argues that the state and federal governments compete with one another for the \"affection\" of their citizens and for the regulatory power that often accompanies that affection. The Article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns' dealings with one another must be sufficiently transparent to enable citizens to allocate praise and blame in an accurate fashion. The Article then argues that, although the Court has not characterized its federalism rulings in this way, and although one may question whether the judiciary is ultimately competent to play an ongoing, prominent role in preserving the marketplace's vitality, the Court appears determined to ensure that these three market requirements are satisfied. The Article concludes by urging courts and scholars to consider the ways in which the marketplace's health may best be preserved and the ways in which a broad range of legal doctrines and lawmaking practices frustrate or advance federalism's forgotten objective of competition between the two sovereigns.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"329"},"PeriodicalIF":1.9,"publicationDate":"2003-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68665206","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}
Economists generally argue that it is irrational to take more than cost-justified precaution against risks of accidental physical injury. Cost-justified precaution minimizes the dollars spent preventing and paying for accidents, thereby maximizing the wealth at society's disposal. When we take more than cost-justified precaution, we make ourselves worse off by making ourselves poorer. It costs more to prevent cost-justified accidents than it does to let those accidents happen and pay for the damage they do. Yet both common law and statutory risk regulation sometimes prescribe more than cost-justified precaution. Are these prescriptions unjustifiable? This paper argues that they are not. When risks of devastating injury are imposed - when we risk premature death, or severe injury whose debilitating effects can never be fully undone - fairness generally requires more than cost-justified precaution. It is unfair to treat devastating injury as commensurable, at some ratio of exchange, with just any benefit which might be gained by risking such injury. Sacrificing an interest as urgent as the interest in avoiding premature death or devastating injury can only be justified if the burden of eliminating that risk is comparable to the burden of bearing it. This requirement of comparability means that we must usually take more than cost-justified precaution against risks of devastating injury. In this context, the paper examines two statutory norms which require more than cost-justified precaution - the "feasibility" and "safety" norms found in federal risk regulation. The "feasibility" norm calls for the elimination of "significant" risks of devastating injury, unless the elimination of those risks would cripple the activity whose risks they are. The "safety" norm requires the elimination of all "significant" risks of devastating injury. The paper argues that feasible precaution is appropriate when an activity cannot flourish without imposing a "significant" risk of devastating injury, and the loss of the activity in question would work a harm comparable to and greater than the "significant" risk of devastating injury that is the price of the activity's flourishing. Safe precaution - the elimination of all "significant" risk of devastating injury - is appropriate when the activity in question is not valuable enough for its elimination to count as a harm comparable to and greater than "significant" risk of devastating injury. The paper also takes up key interpretive questions raised by these standards, arguing that these standards are both reasonably coherent and normatively defensible.
{"title":"Pressing Precaution beyond the Point of Cost-Justification","authors":"Gregory C. Keating","doi":"10.2139/SSRN.308485","DOIUrl":"https://doi.org/10.2139/SSRN.308485","url":null,"abstract":"Economists generally argue that it is irrational to take more than cost-justified precaution against risks of accidental physical injury. Cost-justified precaution minimizes the dollars spent preventing and paying for accidents, thereby maximizing the wealth at society's disposal. When we take more than cost-justified precaution, we make ourselves worse off by making ourselves poorer. It costs more to prevent cost-justified accidents than it does to let those accidents happen and pay for the damage they do. Yet both common law and statutory risk regulation sometimes prescribe more than cost-justified precaution. Are these prescriptions unjustifiable? This paper argues that they are not. When risks of devastating injury are imposed - when we risk premature death, or severe injury whose debilitating effects can never be fully undone - fairness generally requires more than cost-justified precaution. It is unfair to treat devastating injury as commensurable, at some ratio of exchange, with just any benefit which might be gained by risking such injury. Sacrificing an interest as urgent as the interest in avoiding premature death or devastating injury can only be justified if the burden of eliminating that risk is comparable to the burden of bearing it. This requirement of comparability means that we must usually take more than cost-justified precaution against risks of devastating injury. In this context, the paper examines two statutory norms which require more than cost-justified precaution - the \"feasibility\" and \"safety\" norms found in federal risk regulation. The \"feasibility\" norm calls for the elimination of \"significant\" risks of devastating injury, unless the elimination of those risks would cripple the activity whose risks they are. The \"safety\" norm requires the elimination of all \"significant\" risks of devastating injury. The paper argues that feasible precaution is appropriate when an activity cannot flourish without imposing a \"significant\" risk of devastating injury, and the loss of the activity in question would work a harm comparable to and greater than the \"significant\" risk of devastating injury that is the price of the activity's flourishing. Safe precaution - the elimination of all \"significant\" risk of devastating injury - is appropriate when the activity in question is not valuable enough for its elimination to count as a harm comparable to and greater than \"significant\" risk of devastating injury. The paper also takes up key interpretive questions raised by these standards, arguing that these standards are both reasonably coherent and normatively defensible.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"651"},"PeriodicalIF":1.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68552876","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}
With the rise of determinate sentencing in the past fifteen years, more and more defendants have sought to reduce their sentences by turning against their accomplices and "cooperating" with the prosecution. This now thriving cooperation system is almost always seen, even by its defenders, as an evil - a necessary evil, no doubt, but an evil nonetheless. Thus, it is usually discussed in terms that are starkly utilitarian: the prosecutor strikes a "bargain with the devil" to achieve a greater social good. This article argues that the utilitarian view of cooperation is incomplete. Cooperation also contains hidden, but important, retributive components that provide essential insights into the cooperation process. The retributive aspects of cooperation manifest themselves in two ways. First, because cooperators are viewed with such disdain and because cooperators often find themselves alienated and ostracized from communities they care about, cooperation can be punishment in itself. The cooperator who suffers this extra punishment, then, may deserve less traditional punishment than a similarly situated non-cooperating defendant. Second, for some cooperators, cooperation can be a vehicle through which the defendant experiences atonement. The article argues that cooperation can bring a defendant through a process of expiation that both lessens his desert and increases his odds of eventually reintegrating into the community. Viewing cooperation through the lens of punishment and atonement also has important implications for how prosecutors should evaluate and use cooperators, and for how judges should sentence cooperators. Those practical implications are explored in the last part of the article.
{"title":"Retribution for Rats: Cooperation, Punishment, and Atonement","authors":"M. A. Simons","doi":"10.2139/SSRN.350980","DOIUrl":"https://doi.org/10.2139/SSRN.350980","url":null,"abstract":"With the rise of determinate sentencing in the past fifteen years, more and more defendants have sought to reduce their sentences by turning against their accomplices and \"cooperating\" with the prosecution. This now thriving cooperation system is almost always seen, even by its defenders, as an evil - a necessary evil, no doubt, but an evil nonetheless. Thus, it is usually discussed in terms that are starkly utilitarian: the prosecutor strikes a \"bargain with the devil\" to achieve a greater social good. This article argues that the utilitarian view of cooperation is incomplete. Cooperation also contains hidden, but important, retributive components that provide essential insights into the cooperation process. The retributive aspects of cooperation manifest themselves in two ways. First, because cooperators are viewed with such disdain and because cooperators often find themselves alienated and ostracized from communities they care about, cooperation can be punishment in itself. The cooperator who suffers this extra punishment, then, may deserve less traditional punishment than a similarly situated non-cooperating defendant. Second, for some cooperators, cooperation can be a vehicle through which the defendant experiences atonement. The article argues that cooperation can bring a defendant through a process of expiation that both lessens his desert and increases his odds of eventually reintegrating into the community. Viewing cooperation through the lens of punishment and atonement also has important implications for how prosecutors should evaluate and use cooperators, and for how judges should sentence cooperators. Those practical implications are explored in the last part of the article.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"56 1","pages":"12"},"PeriodicalIF":1.9,"publicationDate":"2003-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.350980","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68600290","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 we argue for the creation of an equality-based protection similar to that of race and sex discrimination. In doing so, we demonstrate the confluence of genetic discrimination with that of disability discrimination, and discuss some problems inherent with current approaches to statutory protection in both these areas. We show that the ADA, as well as current and proposed genetic discrimination laws, bifurcates the population into protected and unprotected groups. The ADA and specialized genetic discrimination law protect different groups that are, essentially, mirror images of each other while leaving an important part of the population unprotected. In practice the ADA applies only to those individuals who are seriously symptomatic, while genetic discrimination law extends only to those who are either nonsymptomatic or asymptomatic. Falling between these two poles and thus lacking protection is a large group of presymptomatic individuals with genetic anomalies which may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Because excluding this latter category of individuals from labor market participation (and attendant social opportunities) is probabilistically unjustifiable as well as enormously costly to society, we advocate their inclusion in the classification of the group targeted for genetic discrimination protection. We also set to rest fears that so broadly extending protection will increase transactional costs for everyone. In making these assertions, this article diverges widely from existing legal scholarship. To date, commentators advocate either for greater application of the ADA or the enactment of specific legislation to the realm of genetic discrimination without either noting or addressing the exclusion from coverage of presymptomatic individuals.
{"title":"An equality paradigm for preventing genetic discrimination.","authors":"A. Silvers, M. Stein","doi":"10.2139/SSRN.337720","DOIUrl":"https://doi.org/10.2139/SSRN.337720","url":null,"abstract":"In this article we argue for the creation of an equality-based protection similar to that of race and sex discrimination. In doing so, we demonstrate the confluence of genetic discrimination with that of disability discrimination, and discuss some problems inherent with current approaches to statutory protection in both these areas. We show that the ADA, as well as current and proposed genetic discrimination laws, bifurcates the population into protected and unprotected groups. The ADA and specialized genetic discrimination law protect different groups that are, essentially, mirror images of each other while leaving an important part of the population unprotected. In practice the ADA applies only to those individuals who are seriously symptomatic, while genetic discrimination law extends only to those who are either nonsymptomatic or asymptomatic. Falling between these two poles and thus lacking protection is a large group of presymptomatic individuals with genetic anomalies which may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Because excluding this latter category of individuals from labor market participation (and attendant social opportunities) is probabilistically unjustifiable as well as enormously costly to society, we advocate their inclusion in the classification of the group targeted for genetic discrimination protection. We also set to rest fears that so broadly extending protection will increase transactional costs for everyone. In making these assertions, this article diverges widely from existing legal scholarship. To date, commentators advocate either for greater application of the ADA or the enactment of specific legislation to the realm of genetic discrimination without either noting or addressing the exclusion from coverage of presymptomatic individuals.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"55 5 1","pages":"1341-95"},"PeriodicalIF":1.9,"publicationDate":"2002-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.337720","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68588995","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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