The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an openended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine. AUTHOR—Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing. 114:278 (2020) From the Spirit of the Federalist Papers 279 INTRODUCTION ............................................................................................................. 279 I. THE “SPIRIT OF THE FEDERALIST PAPERS” IN U.S. ADMINISTRATIVE LAW ........... 283 II. NONDELEGATION’S REVIVAL: DISPELLING FULLER’S SPIRIT? ............................... 293 III. LEGITIMACY’S END ............................................................................................... 299
上一届任期的甘迪诉美国案(Gundy v. United States)预示着非授权原则的复兴，标志着一种独特的法律和政治思想风格的终结。该学说在20世纪30年代之后的明显消亡，促进了一种方法论方法的发展，这种方法体现了朗•富勒(Lon Fuller)曾经所说的“联邦党人文集的精神”:对设计民主和控制公共权力的问题进行开放的接触。在最好的情况下，这种论述是批判性和推进性的，每一个所谓的解决方案产生的问题都比它回答的问题多。反对国会代表团可能会结束这段开放和自我批判的实验时期。取而代之的是，我们很可能会看到行政国家的交战愿景的出现，每一种愿景都声称自己的合法性——既不可信——根据自己的综合规范原则。作者，纽约大学法学院代理律师助理教授。非常感谢Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz和David Zaring提供的有益的评论和讨论，并感谢Danielle Berkowsky和西北大学法律评论的工作人员仔细和认真的编辑。114:278(2020)从279年《联邦党人文集》的精神 .............................................................................................................279 .美国行政法中的“联邦党人文集精神”...........283二世。非授权的复兴:驱散富勒的精神?...............................293 III。合法性的结束 ...............................................................................................299
{"title":"From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy V. United States","authors":"J. Heath","doi":"10.2139/ssrn.3517503","DOIUrl":"https://doi.org/10.2139/ssrn.3517503","url":null,"abstract":"The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an openended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy—neither credibly—according to its own comprehensive normative doctrine. AUTHOR—Acting Assistant Professor of Lawyering, New York University School of Law. Many thanks to Edith Beerdsen, Dominic Budetti, Harlan Cohen, Michael Pollack, David Simson, Richard B. Stewart, Thomas Streinz, and David Zaring for helpful comments and discussions, and thanks to Danielle Berkowsky and the staff of the Northwestern University Law Review for careful and conscientious editing. 114:278 (2020) From the Spirit of the Federalist Papers 279 INTRODUCTION ............................................................................................................. 279 I. THE “SPIRIT OF THE FEDERALIST PAPERS” IN U.S. ADMINISTRATIVE LAW ........... 283 II. NONDELEGATION’S REVIVAL: DISPELLING FULLER’S SPIRIT? ............................... 293 III. LEGITIMACY’S END ............................................................................................... 299","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68601868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a State from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, States have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act. In this Article, I argue that States can and should adopt a new strategy: Deter parties from forming such contracts in the first place. The Article proceeds in three parts. First, I explain the problem. Over the last fifty years, the Supreme Court systematically immunized arbitration provisions against every plausible contract defense. Yet the Supreme Court continues to insist that, just as the Federal Arbitration Act requires, arbitration agreements are still subject to “generally applicable contract defenses, such as fraud, duress, or unconscionability.” This is false. Second, I present the first large-scale evidence on the pervasiveness of arbitration. The Supreme Court’s arbitration precedents have effect only to the extent private parties agree to arbitrate their disputes. To study this, I use machine-learning protocols to parse millions of filings with the Securities and Exchange Commission and create a database of nearly 800,000 contracts formed by public companies. These contracts include employment agreements, credit agreements, joint ventures, purchases, and others. Employment contracts are by far the most likely to include a mandatory arbitration provision. Finally, I argue that, because the Supreme Court has all but stripped States of their power to enforce contracts, States should adopt policies that deter formation of objectionable contracts. For example, States cannot prohibit forced arbitration of sexual harassment claims. They can, however, prohibit sexual harassment as a subject matter for employment contracts; they can also enforce this with civil penalties and whistleblower rewards. Similarly, States cannot stop an employer from arbitrating under the laws of another jurisdiction, thereby evading mandatory limits on noncompete agreements. But States can declare noncompetes illegal, levy civil fines on employers that form them, and again offer employees whistleblower rewards to report violations. These approaches work because they create a cause of action for a third party - the State - who is not subject to the arbitration agreement. And unlike past efforts, these laws would not be preempted because they do not “derive their meaning from the fact that an agreement to arbitrate is at issue.”
{"title":"A New Strategy for Regulating Arbitration","authors":"Sarath Sanga","doi":"10.2139/SSRN.3184293","DOIUrl":"https://doi.org/10.2139/SSRN.3184293","url":null,"abstract":"Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a State from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, States have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act. \u0000 \u0000In this Article, I argue that States can and should adopt a new strategy: Deter parties from forming such contracts in the first place. \u0000 \u0000The Article proceeds in three parts. First, I explain the problem. Over the last fifty years, the Supreme Court systematically immunized arbitration provisions against every plausible contract defense. Yet the Supreme Court continues to insist that, just as the Federal Arbitration Act requires, arbitration agreements are still subject to “generally applicable contract defenses, such as fraud, duress, or unconscionability.” This is false. \u0000 \u0000Second, I present the first large-scale evidence on the pervasiveness of arbitration. The Supreme Court’s arbitration precedents have effect only to the extent private parties agree to arbitrate their disputes. To study this, I use machine-learning protocols to parse millions of filings with the Securities and Exchange Commission and create a database of nearly 800,000 contracts formed by public companies. These contracts include employment agreements, credit agreements, joint ventures, purchases, and others. Employment contracts are by far the most likely to include a mandatory arbitration provision. \u0000 \u0000Finally, I argue that, because the Supreme Court has all but stripped States of their power to enforce contracts, States should adopt policies that deter formation of objectionable contracts. For example, States cannot prohibit forced arbitration of sexual harassment claims. They can, however, prohibit sexual harassment as a subject matter for employment contracts; they can also enforce this with civil penalties and whistleblower rewards. Similarly, States cannot stop an employer from arbitrating under the laws of another jurisdiction, thereby evading mandatory limits on noncompete agreements. But States can declare noncompetes illegal, levy civil fines on employers that form them, and again offer employees whistleblower rewards to report violations. These approaches work because they create a cause of action for a third party - the State - who is not subject to the arbitration agreement. And unlike past efforts, these laws would not be preempted because they do not “derive their meaning from the fact that an agreement to arbitrate is at issue.”","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2019-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45830383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a condition of genuine egalitarian inclusion, a “constitutional conception” of popular sovereignty derived primarily from the “constitutional patriotism” associated with Jürgen Habermas can resolve the key challenges associated with the countermajoritarian problem in constitutional theory as well as the problem of constituent power in democratic theory. It does so by providing a conceptual basis for an understanding of the the constitutional demos as a corporate body extending across time capable of ongoing legitimation. However, the constitutional conception cannot justify states, such as the United States, characterized by the durable exclusion of some legitimate members of the polis from political institutions. Even under the constitutional conception, the United States is not a legitimate constitutional democracy in virtue of its treatment of Black Americans. Nonetheless, there is an important tradition in Black American constitutional thought, beginning with Frederick Douglass, which represents American constitutional institutions as conditionally worthy of attachment in virtue of their latent normative potential. The correct conception of constitutional legitimacy for the United States combines Douglass's insights, and those of his intellectual heirs, with those working in the tradition which Habermas represents.
{"title":"Reconstituting We the People: Frederick Douglass and Jurgen Habermas in Conversation","authors":"Paul Gowder","doi":"10.31228/osf.io/csr9x","DOIUrl":"https://doi.org/10.31228/osf.io/csr9x","url":null,"abstract":"In a condition of genuine egalitarian inclusion, a “constitutional conception” of popular sovereignty derived primarily from the “constitutional patriotism” associated with Jürgen Habermas can resolve the key challenges associated with the countermajoritarian problem in constitutional theory as well as the problem of constituent power in democratic theory. It does so by providing a conceptual basis for an understanding of the the constitutional demos as a corporate body extending across time capable of ongoing legitimation. However, the constitutional conception cannot justify states, such as the United States, characterized by the durable exclusion of some legitimate members of the polis from political institutions. Even under the constitutional conception, the United States is not a legitimate constitutional democracy in virtue of its treatment of Black Americans. Nonetheless, there is an important tradition in Black American constitutional thought, beginning with Frederick Douglass, which represents American constitutional institutions as conditionally worthy of attachment in virtue of their latent normative potential. The correct conception of constitutional legitimacy for the United States combines Douglass's insights, and those of his intellectual heirs, with those working in the tradition which Habermas represents.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article employs a social network perspective to revisit the best known example of successful private ordering in the economics literature — the case of the Maghribi Jewish merchants who engaged in both local and long distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of the over 200 Maghribi merchant letters available in English, it reveals the ways that a bridge-and-cluster configuration of ties among traders known as a “small-world network” can be effective in supporting trade over long distances, even in an environment of noisy information. Recognizing the contract governance properties of small-world networks is important for three core reasons. First, because the underlying economic forces that give rise to small-world networks are quite common, and they are often associated with innovation related benefits, exploring their governance properties should make it possible to better understand the ways trade is, and can be, supported in a variety of modern markets. Second, understanding the ways small-world networks function can contribute to the design of formal and informal institutions to support exchange. Finally, understanding the governance power of small-world networks reveals that the small, geographically concentrated, close-knit groups (cliques) that the legal literature has long associated with successful private ordering are not in fact a precondition for well-functioning private order, as small-world networks can effectively support trade among large numbers of traders operating at considerable distances from one another.
{"title":"Contract Governance in Small-World Networks: The Case of the Maghribi Traders","authors":"Lisa E. Bernstein","doi":"10.2139/SSRN.3278003","DOIUrl":"https://doi.org/10.2139/SSRN.3278003","url":null,"abstract":"This Article employs a social network perspective to revisit the best known example of successful private ordering in the economics literature — the case of the Maghribi Jewish merchants who engaged in both local and long distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of the over 200 Maghribi merchant letters available in English, it reveals the ways that a bridge-and-cluster configuration of ties among traders known as a “small-world network” can be effective in supporting trade over long distances, even in an environment of noisy information. Recognizing the contract governance properties of small-world networks is important for three core reasons. First, because the underlying economic forces that give rise to small-world networks are quite common, and they are often associated with innovation related benefits, exploring their governance properties should make it possible to better understand the ways trade is, and can be, supported in a variety of modern markets. Second, understanding the ways small-world networks function can contribute to the design of formal and informal institutions to support exchange. Finally, understanding the governance power of small-world networks reveals that the small, geographically concentrated, close-knit groups (cliques) that the legal literature has long associated with successful private ordering are not in fact a precondition for well-functioning private order, as small-world networks can effectively support trade among large numbers of traders operating at considerable distances from one another.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68581347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On July 30, 2018, the U.S. Department of Housing and Urban Development (HUD)’s rule prohibiting residents of public housing from smoking within 25 feet of any housing project takes effect. These new regulations — HUD’s “smoke-free policy” — received near-universal acclaim as a means to improve public health, in particular by reducing vulnerable populations’ exposure to second-hand smoke. This Essay analyzes the smoke-free policy from the perspective of healthism — discrimination on the basis of health status. We argue that banning public housing residents from smoking is unfairly discriminatory for a variety of reasons. To start, the rule may not achieve its desired effects. Because a violation could lead to eviction, the policy may well push many public housing residents out onto the street, ironically worsening health outcomes. The rule also intrudes into the private lives of smokers in public housing by forbidding them from engaging in lawful conduct in the sanctity of their homes. It singles out smokers for regulation in a way that validates stigma. Finally, HUD’s smoke-free policy poses unappreciated distributional concerns, with the heaviest burdens falling on historically disadvantaged populations like the elderly, people with disabilities, certain racial and ethnic minorities, and the poor. The Essay concludes by attempting to salvage the rule by reflecting on how HUD might modify its policy to improve compliance and avoid discrimination, including smoking shelters, smoking cessation support, and incentive structures.
{"title":"The Discriminatory Effects of the HUD Smoke-Free Policy","authors":"David Fagundes, Jessica Roberts","doi":"10.2139/SSRN.3222630","DOIUrl":"https://doi.org/10.2139/SSRN.3222630","url":null,"abstract":"On July 30, 2018, the U.S. Department of Housing and Urban Development (HUD)’s rule prohibiting residents of public housing from smoking within 25 feet of any housing project takes effect. These new regulations — HUD’s “smoke-free policy” — received near-universal acclaim as a means to improve public health, in particular by reducing vulnerable populations’ exposure to second-hand smoke. This Essay analyzes the smoke-free policy from the perspective of healthism — discrimination on the basis of health status. We argue that banning public housing residents from smoking is unfairly discriminatory for a variety of reasons. To start, the rule may not achieve its desired effects. Because a violation could lead to eviction, the policy may well push many public housing residents out onto the street, ironically worsening health outcomes. The rule also intrudes into the private lives of smokers in public housing by forbidding them from engaging in lawful conduct in the sanctity of their homes. It singles out smokers for regulation in a way that validates stigma. Finally, HUD’s smoke-free policy poses unappreciated distributional concerns, with the heaviest burdens falling on historically disadvantaged populations like the elderly, people with disabilities, certain racial and ethnic minorities, and the poor. The Essay concludes by attempting to salvage the rule by reflecting on how HUD might modify its policy to improve compliance and avoid discrimination, including smoking shelters, smoking cessation support, and incentive structures.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2018-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68575578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that the Court’s “fear of too much justice” links race and sexual orientation cases and helps to explain victories as well as losses. Even when advocates win in a case like Obergefell v. Hodges or Grutter v. Bollinger, the Court carefully cabins its opinion so as not to destabilize the social hierarchy. We illustrate this claim through a close examination of the use of social science in Obergefell. The Court disregarded evidence suggesting that same-sex couples and parents experience positive differences, as compared to heterosexuals, such as instilling greater respect for gender and sexual orientation equality in their children. The Court also asserted the innocence of opponents of same-sex marriage, ignoring evidence linking the denial of access to marriage to homophobia. In short, a movement to upend homophobic marriage laws was itself confined by homophobia, which influenced which arguments lawyers and Justices could articulate.
本文试图在最高法院的诉讼中找出种族、性取向和社会科学之间的联系。在某些方面，少数种族和性少数群体的倡导者面临着不同的轨迹。自20世纪90年代中期罗默诉埃文斯案(Romer v. Evans)以来，在那些主张民权诉求的人中，LGBT权利诉求者在最高法院取得了独特的成功。在此期间，少数族裔权益倡导者一直在努力维护早先在加州大学校委会诉巴克案(Regents of California v. Bakke)中取得的胜利，但未能推翻严格限制平等保护可能性的先例，如麦克莱斯基诉肯普案(McCleskey v. Kemp)。尽管如此，我们认为，最高法院的“对过度公正的恐惧”将种族和性取向案件联系在一起，这有助于解释胜诉和败诉的原因。即使在奥贝格费尔诉霍奇斯案或格鲁特诉博林格案等案件中胜诉，最高法院也会小心翼翼地保留意见，以免破坏社会等级制度的稳定。我们通过对奥贝格费尔使用社会科学的仔细研究来说明这一说法。有证据表明，与异性恋者相比，同性伴侣和父母经历了积极的差异，比如在孩子身上灌输了对性别和性取向平等的更多尊重，法院对此不予考虑。最高法院还断言反对同性婚姻的人是无辜的，无视将拒绝结婚与同性恋恐惧症联系起来的证据。简而言之，推翻同性恋婚姻法的运动本身就受到同性恋恐惧症的限制，这影响了律师和法官能够表达的论点。
{"title":"\"Playing It Safe\" with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases About Racial Justice and Marriage Equality","authors":"Russell K. Robinson, D. Frost","doi":"10.2139/SSRN.3201363","DOIUrl":"https://doi.org/10.2139/SSRN.3201363","url":null,"abstract":"This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that the Court’s “fear of too much justice” links race and sexual orientation cases and helps to explain victories as well as losses. Even when advocates win in a case like Obergefell v. Hodges or Grutter v. Bollinger, the Court carefully cabins its opinion so as not to destabilize the social hierarchy. We illustrate this claim through a close examination of the use of social science in Obergefell. The Court disregarded evidence suggesting that same-sex couples and parents experience positive differences, as compared to heterosexuals, such as instilling greater respect for gender and sexual orientation equality in their children. The Court also asserted the innocence of opponents of same-sex marriage, ignoring evidence linking the denial of access to marriage to homophobia. In short, a movement to upend homophobic marriage laws was itself confined by homophobia, which influenced which arguments lawyers and Justices could articulate.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2018-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68573768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay "fair share," or "agency" fees. In public unions "when the employer is the government" this arrangement creates tension between two important values: the First Amendment's protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood's fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees "but only those that are "closely drawn" to avoid unnecessary expressive infringement" will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood's rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.
{"title":"Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union","authors":"Courtlyn G. Roser-Jones","doi":"10.2139/SSRN.3029560","DOIUrl":"https://doi.org/10.2139/SSRN.3029560","url":null,"abstract":"Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay \"fair share,\" or \"agency\" fees. In public unions \"when the employer is the government\" this arrangement creates tension between two important values: the First Amendment's protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood's fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees \"but only those that are \"closely drawn\" to avoid unnecessary expressive infringement\" will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood's rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49001652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The media and academic dialogue surrounding high-stakes decision-making by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit maximizing firms risks “marginalizing the entire field” of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course-correction. Invoking Oliver Wendell Holmes’ canonical analogy of a “bad man...who cares nothing for...ethical rules,” it demonstrates why philosophical abstractions like the trolley problem — in their classic framing — provide a poor means of understanding the real-world constraints faced by robotics engineers. Using insights gleaned from the economic analysis of law, it argues that profit maximizing firms designing autonomous decision-making systems will be less concerned with esoteric questions of right and wrong than with concrete questions of predictive legal liability. And until such time as the conversation surrounding so-called “moral machines” is revised to reflect this fundamental distinction between morality and law, the thinking on this topic by philosophers, engineers, and policymakers alike will remain hopelessly mired. Step aside roboticists — lawyers have got this one.
{"title":"Amoral Machines, Or: How Roboticists Can Learn to Stop Worrying and Love the Law","authors":"B. Casey","doi":"10.2139/SSRN.2923040","DOIUrl":"https://doi.org/10.2139/SSRN.2923040","url":null,"abstract":"The media and academic dialogue surrounding high-stakes decision-making by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit maximizing firms risks “marginalizing the entire field” of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay attempts to both halt this trend and offer a course-correction. Invoking Oliver Wendell Holmes’ canonical analogy of a “bad man...who cares nothing for...ethical rules,” it demonstrates why philosophical abstractions like the trolley problem — in their classic framing — provide a poor means of understanding the real-world constraints faced by robotics engineers. Using insights gleaned from the economic analysis of law, it argues that profit maximizing firms designing autonomous decision-making systems will be less concerned with esoteric questions of right and wrong than with concrete questions of predictive legal liability. And until such time as the conversation surrounding so-called “moral machines” is revised to reflect this fundamental distinction between morality and law, the thinking on this topic by philosophers, engineers, and policymakers alike will remain hopelessly mired. Step aside roboticists — lawyers have got this one.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2923040","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41412815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When does a state have standing to challenge the executive branch’s alleged under-enforcement of federal law? The issue took on importance during the Obama administration, with “red states” suing the executive branch over numerous issues, including immigration and health care. The question of standing looks to remain critical during the Trump administration, only with the political orientation of the actors reversed. This Article argues in favor of sovereign preemption standing, under which a state would enjoy Article III standing to sue the federal government when (i) the federal government preempts state law, yet (ii) the executive branch allegedly under-enforces the federal law that Congress enacted to fill the regulatory gap to which the preemption gave rise. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury — that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the executive branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry.The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state-federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Alternatively, sovereign preemption state standing also can be construed somewhat more broadly so that it applies not only to the setting of executive branch under-enforcement, but to the setting of horizontal federal disagreement in general — i.e., to the setting of executive branch over-enforcement as well.
{"title":"Sovereign Preemption State Standing","authors":"J. Nash","doi":"10.2139/SSRN.2906614","DOIUrl":"https://doi.org/10.2139/SSRN.2906614","url":null,"abstract":"When does a state have standing to challenge the executive branch’s alleged under-enforcement of federal law? The issue took on importance during the Obama administration, with “red states” suing the executive branch over numerous issues, including immigration and health care. The question of standing looks to remain critical during the Trump administration, only with the political orientation of the actors reversed. This Article argues in favor of sovereign preemption standing, under which a state would enjoy Article III standing to sue the federal government when (i) the federal government preempts state law, yet (ii) the executive branch allegedly under-enforces the federal law that Congress enacted to fill the regulatory gap to which the preemption gave rise. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury — that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the executive branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry.The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state-federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Alternatively, sovereign preemption state standing also can be construed somewhat more broadly so that it applies not only to the setting of executive branch under-enforcement, but to the setting of horizontal federal disagreement in general — i.e., to the setting of executive branch over-enforcement as well.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42428181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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