May for-profit, secular corporations claim the protection of the Religious Freedom Restoration Act (RFRA)?This question is central to numerous lawsuits against the federal government in which business owners argue that certain regulations under the Patient Protection & Affordable Care Act substantially burden the exercise of their religion. This Note examines the threshold hurdle that for-profit business owners must clear to successfully state a claim under RFRA: the question of whether the businesses are “persons” the statute protects. This is an issue of first impression for the Supreme Court, and it has split the circuit courts. This Note begins by providing an overview of Free Exercise jurisprudence, with a focus on the ebbs and flows of the Supreme Court’s exemption doctrine, and an introduction to RFRA. It then discusses the laws, regulations, and religious objections that form the basis of the current disputes and introduces the conflict among circuit courts. This Note then evaluates the circuit court opinions and explains that resolution of this conflict is a matter of statutory interpretation. An assessment of RFRA’s text and the context in which Congress enacted the statute reveals that nothing precludes corporations from RFRA claims. In addition, this Note examines legislative history that supports application of the Dictionary Act, which explains that the word “person” in federal statutes includes corporations. This Note ultimately concludes that RFRA allows corporations to seek exemptions under RFRA. However, because the plaintiffs in the current litigation are closely held corporations, this Note also cautions courts against holdings that determine the contours of corporate RFRA claims in one fell swoop. Rather, RFRA requires courts to craft a jurisprudence and ascertain the proper contours of the law as applied to different corporate forms.
以营利为目的的世俗公司是否可以要求《宗教自由恢复法案》(RFRA)的保护?这个问题是许多针对联邦政府的诉讼的核心，在这些诉讼中，企业主辩称，《患者保护与平价医疗法案》(Patient Protection & Affordable Care Act)下的某些规定，实质上给他们的宗教信仰造成了负担。本注考察了营利性企业所有者在RFRA下成功陈述索赔必须清除的门槛障碍:企业是否是法规保护的“人”的问题。这是最高法院的第一印象问题，并在巡回法院中产生了分歧。本说明首先概述了自由行使法的判例，重点是最高法院豁免原则的起起落落，并介绍了RFRA。然后讨论构成当前争议基础的法律、法规和宗教异议，并介绍巡回法院之间的冲突。本说明随后评估了巡回法院的意见，并解释说，解决这一冲突是法律解释的问题。对RFRA的文本和国会颁布法规的背景的评估表明，没有什么可以排除公司的RFRA索赔。此外，本文还考察了支持《词典法》适用的立法历史，该法案解释了联邦法规中“人”一词包括公司。本说明最终得出结论，RFRA允许公司根据RFRA寻求豁免。然而，由于当前诉讼中的原告都是股份有限的公司，本说明也提醒法院，不要让股份一举决定公司RFRA索赔的轮廓。相反，RFRA要求法院制定法理，并确定适用于不同公司形式的法律的适当轮廓。
{"title":"Shall Businesses Profit if Their Owners Lose Their Souls? Examining Whether Closely Held Corporations May Seek Exemptions from the Contraceptive Mandate","authors":"Christopher Ross","doi":"10.2139/SSRN.2358271","DOIUrl":"https://doi.org/10.2139/SSRN.2358271","url":null,"abstract":"May for-profit, secular corporations claim the protection of the Religious Freedom Restoration Act (RFRA)?This question is central to numerous lawsuits against the federal government in which business owners argue that certain regulations under the Patient Protection & Affordable Care Act substantially burden the exercise of their religion. This Note examines the threshold hurdle that for-profit business owners must clear to successfully state a claim under RFRA: the question of whether the businesses are “persons” the statute protects. This is an issue of first impression for the Supreme Court, and it has split the circuit courts. This Note begins by providing an overview of Free Exercise jurisprudence, with a focus on the ebbs and flows of the Supreme Court’s exemption doctrine, and an introduction to RFRA. It then discusses the laws, regulations, and religious objections that form the basis of the current disputes and introduces the conflict among circuit courts. This Note then evaluates the circuit court opinions and explains that resolution of this conflict is a matter of statutory interpretation. An assessment of RFRA’s text and the context in which Congress enacted the statute reveals that nothing precludes corporations from RFRA claims. In addition, this Note examines legislative history that supports application of the Dictionary Act, which explains that the word “person” in federal statutes includes corporations. This Note ultimately concludes that RFRA allows corporations to seek exemptions under RFRA. However, because the plaintiffs in the current litigation are closely held corporations, this Note also cautions courts against holdings that determine the contours of corporate RFRA claims in one fell swoop. Rather, RFRA requires courts to craft a jurisprudence and ascertain the proper contours of the law as applied to different corporate forms.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137641","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 recent years, a number of scholars have built upon the bifurcated nature of the legal profession with proposals to relax professional regulation in just one of the profession’s hemispheres. Some advocate a relaxation of unauthorized practice rules in the personal services hemisphere to increase competition, decrease prices, and make legal services more accessible to all segments of the population. Others propose a relaxation of particular client protections in the corporate hemisphere to honor client autonomy and choice. In this essay, I explore the unintended and problematic consequences of these proposals. I argue that although scholars advocating the two sets of changes have divergent goals and motivations, their proposals suffer from a common flaw — they fail to account for the extent and significance of linkages that connect the profession’s hemispheres. Focusing on these linkages, I argue that proposals to relax regulation along the profession’s existing structural contours threaten to exaggerate and entrench wealth and power disparities in the profession and in society at large.
{"title":"Hemispheres Apart, a Profession Connected","authors":"Dana A. Remus","doi":"10.2139/SSRN.2394246","DOIUrl":"https://doi.org/10.2139/SSRN.2394246","url":null,"abstract":"In recent years, a number of scholars have built upon the bifurcated nature of the legal profession with proposals to relax professional regulation in just one of the profession’s hemispheres. Some advocate a relaxation of unauthorized practice rules in the personal services hemisphere to increase competition, decrease prices, and make legal services more accessible to all segments of the population. Others propose a relaxation of particular client protections in the corporate hemisphere to honor client autonomy and choice. In this essay, I explore the unintended and problematic consequences of these proposals. I argue that although scholars advocating the two sets of changes have divergent goals and motivations, their proposals suffer from a common flaw — they fail to account for the extent and significance of linkages that connect the profession’s hemispheres. Focusing on these linkages, I argue that proposals to relax regulation along the profession’s existing structural contours threaten to exaggerate and entrench wealth and power disparities in the profession and in society at large.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175774","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 looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action. On the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act.
{"title":"Chevron at the Roberts Court: Still Failing after All These Years","authors":"J. Beermann","doi":"10.2139/SSRN.2382984","DOIUrl":"https://doi.org/10.2139/SSRN.2382984","url":null,"abstract":"This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action. On the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68164776","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}
{"title":"The Special Skills of Advocacy","authors":"W. Burger","doi":"10.2307/j.ctv19x569.8","DOIUrl":"https://doi.org/10.2307/j.ctv19x569.8","url":null,"abstract":"","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68787847","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 argues that all forms of Originalism, new and old, ultimately worship the wrong God. While I share the Originalists’ desire for judicial fidelity to the actual, enduring law, analysis of their reasoning reveals that what Originalism honors is not the meaning of the law, but the original meaners. More exactly, Originalists tend to conflate the original meaning of a term with that term’s objective meaning. They confuse that which is objective with that which a particular group of people thought was objective – which is not the same thing. In so doing, the Originalist prescription for judicial review reduces law to a "he said, she said" dispute – a contest over whose say-so should carry the day that is not resolved by evidence and logic. This is ultimately as subjectivist as many of the theories that Originalists reject and it undermines the very ideal that they wish to defend: the objective Rule of Law.
{"title":"Originalism, Vintage or Nouveau: 'He Said, She Said' Law","authors":"Tara L. Smith","doi":"10.2139/SSRN.2354371","DOIUrl":"https://doi.org/10.2139/SSRN.2354371","url":null,"abstract":"This paper argues that all forms of Originalism, new and old, ultimately worship the wrong God. While I share the Originalists’ desire for judicial fidelity to the actual, enduring law, analysis of their reasoning reveals that what Originalism honors is not the meaning of the law, but the original meaners. More exactly, Originalists tend to conflate the original meaning of a term with that term’s objective meaning. They confuse that which is objective with that which a particular group of people thought was objective – which is not the same thing. In so doing, the Originalist prescription for judicial review reduces law to a \"he said, she said\" dispute – a contest over whose say-so should carry the day that is not resolved by evidence and logic. This is ultimately as subjectivist as many of the theories that Originalists reject and it undermines the very ideal that they wish to defend: the objective Rule of Law.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68133523","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}
For nearly twenty-five years, courts have looked to the Supreme Court’s ruling in Chevron when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals (BIA) interpretation of the term 'aggravated felony', a phrase drawn from criminal law, deserves a traditional Chevron analysis.This Note addresses the conflict and proposes a model of Chevron’s framework that permits courts to remain flexible when considering an agency’s non-traditional expertise, an outcome contemplated by Chevron’s theoretical framework and the Court’s ruling in Chevron itself. Ultimately, this Note resolves the split in favor of the application of Chevron deference to the BIA’s interpretation of language drawn from criminal law, despite the agency’s traditional expertise in immigration law only.
{"title":"Chevron’s Flexible Agency Expertise Model: Applying the Chevron Doctrine to the BIA’s Interpretation of the INA’s Criminal Law-Based Aggravated Felony Provision","authors":"Michael Dorfman-Gonzalez","doi":"10.2139/SSRN.2324924","DOIUrl":"https://doi.org/10.2139/SSRN.2324924","url":null,"abstract":"For nearly twenty-five years, courts have looked to the Supreme Court’s ruling in Chevron when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals (BIA) interpretation of the term 'aggravated felony', a phrase drawn from criminal law, deserves a traditional Chevron analysis.This Note addresses the conflict and proposes a model of Chevron’s framework that permits courts to remain flexible when considering an agency’s non-traditional expertise, an outcome contemplated by Chevron’s theoretical framework and the Court’s ruling in Chevron itself. Ultimately, this Note resolves the split in favor of the application of Chevron deference to the BIA’s interpretation of language drawn from criminal law, despite the agency’s traditional expertise in immigration law only.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2324924","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68104463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal custody throughout his removal proceedings.Courts disagree as to whether § 1226(c) requires the AG to detain noncitizen offenders immediately, or whether the AG may allow a noncitizen to return to the community for months, or even years, before effecting detention and still retain the authority to detain the noncitizen without a bond hearing. The question exists in the intersection between criminal law and immigration law and the overlap between an agency’s power to interpret statutes and the court’s obligation to do so. This Note will examine the timing question that § 1226(c) presents and offers a solution that seeks to balance the liberty interests of detainees with the government’s interests in protecting the community and ensuring removal.
{"title":"When is When?: 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention","authors":"Gerard Savaresse","doi":"10.2139/SSRN.2324988","DOIUrl":"https://doi.org/10.2139/SSRN.2324988","url":null,"abstract":"Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal custody throughout his removal proceedings.Courts disagree as to whether § 1226(c) requires the AG to detain noncitizen offenders immediately, or whether the AG may allow a noncitizen to return to the community for months, or even years, before effecting detention and still retain the authority to detain the noncitizen without a bond hearing. The question exists in the intersection between criminal law and immigration law and the overlap between an agency’s power to interpret statutes and the court’s obligation to do so. This Note will examine the timing question that § 1226(c) presents and offers a solution that seeks to balance the liberty interests of detainees with the government’s interests in protecting the community and ensuring removal.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68104257","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 a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief Justice Roberts' dissent). The centuries-old proposition Justice Jackson captured in Skidmore v. Swift & Co. receives passing mention only in the solitary opinion of Justice Breyer.Perhaps as remarkable is that the statutory command that agency conclusions must be reasonable has also disappeared. "Permissible" is now the judicially enforceable limit, if this opinion is to be believed.
在一次政变中，大法官斯卡利亚似乎将他在美国诉米德公司案中孤独而愤怒的反对意见转化为阿灵顿市诉联邦通信委员会案中8比1的多数意见。毫无疑问，对于这一观点，人们会说很多，就像对雪佛龙公司的所有案件一样，但这里要注意的是，186年来关于法官解释涉及机构权力的法规时应充分考虑机构意见这一主张的先例，已经完全消失了。机构是否有权采取行动，这是一个法律问题，要么是雪佛龙(多数)，要么根本不服从(首席大法官罗伯茨的异议)。杰克逊大法官在斯基德莫尔诉斯威夫特公司案(Skidmore v. Swift & Co.)中提出的几个世纪前的主张，只在布雷耶大法官的单独意见中被提及。也许同样值得注意的是，关于机构结论必须合理的法定命令也消失了。如果这种观点可信的话，“允许”现在是司法上可强制执行的限制。
{"title":"In Search of Skidmore","authors":"P. Strauss","doi":"10.2139/SSRN.2287343","DOIUrl":"https://doi.org/10.2139/SSRN.2287343","url":null,"abstract":"In a coup en banc, Justice Scalia appears to have converted his lonely and furious dissent from United States v. Mead Corp. into the eight to one majority holding in City of Arlington v. FCC. Much will doubtless be said about this opinion, as about all Chevron matters generally, but to note here is that 186 years of precedent for the proposition that judges interpreting statutes involving agency authority should give substantial weight to agency views have simply disappeared. Whether agencies have authority to act, a legal question, is either all Chevron (the majority) or no deference at all (Chief Justice Roberts' dissent). The centuries-old proposition Justice Jackson captured in Skidmore v. Swift & Co. receives passing mention only in the solitary opinion of Justice Breyer.Perhaps as remarkable is that the statutory command that agency conclusions must be reasonable has also disappeared. \"Permissible\" is now the judicially enforceable limit, if this opinion is to be believed.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68064645","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 : 2013-06-30DOI: 10.1093/acprof:oso/9780198714538.003.0006
Andrei Marmor
The distinction between an evaluative concept and its possible conceptions plays a prominent role in debates about constitutional interpretation. The main purpose of the paper is to raise some doubts about the linguistic assumptions that are employed in this debate, arguing that the semantic considerations underlying the concept versus conceptions distinction are much more problematic and inconclusive than generally assumed. The ways in which concepts are used in a speech act crucially depend on pragmatic determinants, and those, in turn, depend on the nature of the conversation. The paper shows that the debate about constitutional interpretation is better seen as a moral debate about the nature of the conversation that constitutional regimes should be taken to establish. The linguistic considerations in play depend on this moral issue; by themselves, they do not support any particular interpretative stance.
{"title":"Meaning and Belief in Constitutional Interpretation","authors":"Andrei Marmor","doi":"10.1093/acprof:oso/9780198714538.003.0006","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198714538.003.0006","url":null,"abstract":"The distinction between an evaluative concept and its possible conceptions plays a prominent role in debates about constitutional interpretation. The main purpose of the paper is to raise some doubts about the linguistic assumptions that are employed in this debate, arguing that the semantic considerations underlying the concept versus conceptions distinction are much more problematic and inconclusive than generally assumed. The ways in which concepts are used in a speech act crucially depend on pragmatic determinants, and those, in turn, depend on the nature of the conversation. The paper shows that the debate about constitutional interpretation is better seen as a moral debate about the nature of the conversation that constitutional regimes should be taken to establish. The linguistic considerations in play depend on this moral issue; by themselves, they do not support any particular interpretative stance.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60645105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the complex and often strained relationship between Tom Mooney, the famous labor radical who was framed for a bombing murder, and his lawyers over the course of the 23-year long battle to gain his freedom. The author uses the lawyers’ archives to explore the intense difficulties that arise between a client who believes the legal system is hopelessly corrupt and his lawyers who hope to free their client and redeem the justice system at the same time. While sympathetic to Tom Mooney and the lawyers, Roiphe concludes that an independent legal profession struggling to negotiate its obligation to the client and the system is a fundamental aspect of the American democratic system.
{"title":"The Lawyer's Role in a Contemporary Democracy, Tensions Between Various Conceptions of the Lawyer's Role, Lawyering at the Extremes: The Representation of Tom Mooney, 1916-1939","authors":"Rebecca Roiphe","doi":"10.2139/SSRN.2244309","DOIUrl":"https://doi.org/10.2139/SSRN.2244309","url":null,"abstract":"This article explores the complex and often strained relationship between Tom Mooney, the famous labor radical who was framed for a bombing murder, and his lawyers over the course of the 23-year long battle to gain his freedom. The author uses the lawyers’ archives to explore the intense difficulties that arise between a client who believes the legal system is hopelessly corrupt and his lawyers who hope to free their client and redeem the justice system at the same time. While sympathetic to Tom Mooney and the lawyers, Roiphe concludes that an independent legal profession struggling to negotiate its obligation to the client and the system is a fundamental aspect of the American democratic system.","PeriodicalId":47517,"journal":{"name":"Fordham Law Review","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68026038","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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