Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.
最高法院能认定宪法文本“深思熟虑”的东西违宪吗?如果《权利法案》提到了惩罚，这是否使其成为一种“允许的立法选择”，不受独立的宪法挑战?最近的事态发展给那些寻求通过宪法废除死刑的人带来了新的希望。但一些死刑的支持者继续争辩，就像他们在弗曼诉格鲁吉亚案(Furman v. Georgia)之后所做的那样，死刑必须符合宪法，因为第五修正案明确考虑了死刑。这一论点的吸引力是显而易见的，但其力量在很大程度上是肤浅的，而且与反对死刑合宪性的主张也大多无关。《第五修正案》中对死刑的提及最多可能反映了建国时期的一种假设，即当时宪法允许死刑。但它们并不等于宪法授权;如果死刑违反了宪法的其他规定，那么死刑就是违宪的。一旦承认了这一点，第五修正案的论点就没什么作用了。死刑的合宪性可能有很好的论据，但第五修正案不在其中。
{"title":"The Death Penalty and the Fifth Amendment","authors":"Joseph Blocher","doi":"10.2139/SSRN.2682657","DOIUrl":"https://doi.org/10.2139/SSRN.2682657","url":null,"abstract":"Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"275-294"},"PeriodicalIF":1.9,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2682657","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254518","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 Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will do nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. And if the Supreme Court doesn’t preemptively address these potential circuit splits in the Beckles case then it may never have a chance to do so, because of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) restrictions on the Supreme Court’s jurisdiction over post-conviction cases. The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that any right announced in Beckles applies uniformly across the country. Two decades ago, when the Supreme Court upheld AEDPA's restrictions on the Supreme Court’s jurisdiction in post-conviction cases, three Justices warned that circuit splits related to successive post-conviction motions might re-open whether those restrictions are constitutional. As we show below, the aftermath of the Supreme Court's recent Johnson and Welch rulings what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.
{"title":"What Lurks Below Beckles","authors":"Leah M. Litman, Shakeer Rahman","doi":"10.2139/SSRN.2830324","DOIUrl":"https://doi.org/10.2139/SSRN.2830324","url":null,"abstract":"The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will do nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. And if the Supreme Court doesn’t preemptively address these potential circuit splits in the Beckles case then it may never have a chance to do so, because of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) restrictions on the Supreme Court’s jurisdiction over post-conviction cases. The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that any right announced in Beckles applies uniformly across the country. Two decades ago, when the Supreme Court upheld AEDPA's restrictions on the Supreme Court’s jurisdiction in post-conviction cases, three Justices warned that circuit splits related to successive post-conviction motions might re-open whether those restrictions are constitutional. As we show below, the aftermath of the Supreme Court's recent Johnson and Welch rulings what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"555-582"},"PeriodicalIF":1.9,"publicationDate":"2016-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68364548","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}
Does the punishment of one defendant change because of how she fares in comparison to the other defendants on the judge’s docket? This article demonstrates that the troubling answer is yes. Judges sentence the same case more harshly when their caseloads contain relatively milder offenses, and more leniently when their caseloads contain more serious crimes. I call this problem “punishing on a curve.”Consequently, the article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts or courts of limited jurisdiction. Because judges are punishing on a curve, the court’s jurisdiction systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes (such as misdemeanors, drug offenses, or juvenile cases). They treat the mild offenses on their docket more harshly than generalist courts, that also see severe crimes, would have treated them. This leads to the disturbing effect of increasing punitive outcomes vis-a-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity.In light of the profound normative and practical implications, the article offers a remedy to standardize sentences through “statistical curving.” In addition to consulting the sentencing range recommended by the sentencing guidelines for a particular offense, a judge should see the distribution of sentences for the same offense across different courts. The article illustrates the feasibility of the proposal empirically using sentencing data from neighboring judicial districts in Pennsylvania. It also explains how this proposal fits within the Supreme Court’s jurisprudence following United States v. Booker, which rendered the sentencing guidelines advisory, and its potential advantage in improving appellate review.
对一个被告的惩罚是否会因为她与法官案底上的其他被告相比表现如何而改变?本文证明了这个令人不安的答案是肯定的。法官对同一案件的判决，在罪行较轻的情况下更为严厉，在罪行较严重的情况下更为从轻。我把这个问题称为“曲线惩罚”。因此，本文表明这种相对的量刑模式如何对设立专门法院或有限管辖权法院的普遍做法提出质疑。由于法官的惩罚呈曲线状，法院的管辖权系统地影响了量刑结果。有限管辖权的法院通常专门审理相对不那么严重的罪行(如轻罪、毒品犯罪或青少年案件)。他们对案卷上的轻微罪行的处理，要比审理严重罪行的多面手法庭更为严厉。这导致了对这些罪行的惩罚结果日益增加的令人不安的影响，这与这些法院的使命完全矛盾。这种量刑模式破坏了正义和公平待遇的概念。它们还破坏了惩罚原则和对日益严重的犯罪的边际威慑。鉴于其深刻的规范意义和现实意义，本文提出了通过“统计曲线”来规范句子的补救措施。除了参考量刑指南对特定罪行所建议的量刑范围外，法官还应该看到同一罪行在不同法院的量刑分布情况。本文以宾夕法尼亚州邻近司法管辖区的量刑数据为实证，论证了该建议的可行性。它还解释了这一建议如何符合最高法院在美国诉布克案(United States v. Booker)之后的判例，该判例使量刑指南具有咨询意义，以及它在改进上诉审查方面的潜在优势。
{"title":"Punishing on a Curve","authors":"Adi Leibovitch","doi":"10.2139/SSRN.2820197","DOIUrl":"https://doi.org/10.2139/SSRN.2820197","url":null,"abstract":"Does the punishment of one defendant change because of how she fares in comparison to the other defendants on the judge’s docket? This article demonstrates that the troubling answer is yes. Judges sentence the same case more harshly when their caseloads contain relatively milder offenses, and more leniently when their caseloads contain more serious crimes. I call this problem “punishing on a curve.”Consequently, the article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts or courts of limited jurisdiction. Because judges are punishing on a curve, the court’s jurisdiction systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes (such as misdemeanors, drug offenses, or juvenile cases). They treat the mild offenses on their docket more harshly than generalist courts, that also see severe crimes, would have treated them. This leads to the disturbing effect of increasing punitive outcomes vis-a-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity.In light of the profound normative and practical implications, the article offers a remedy to standardize sentences through “statistical curving.” In addition to consulting the sentencing range recommended by the sentencing guidelines for a particular offense, a judge should see the distribution of sentences for the same offense across different courts. The article illustrates the feasibility of the proposal empirically using sentencing data from neighboring judicial districts in Pennsylvania. It also explains how this proposal fits within the Supreme Court’s jurisprudence following United States v. Booker, which rendered the sentencing guidelines advisory, and its potential advantage in improving appellate review.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"1205-1280"},"PeriodicalIF":1.9,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68354525","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 Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive role in constitutional law, giving rise to an underappreciated tradition of promissory constitutionalism. For example, the Supreme Court has cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. This Article provides a new framework for understanding the oath, its moral content, and its implications for legal practice. Because it engenders a promise, the oath gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath provides a solution to the “dead hand problem” and explains how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. Constitutional duty thus flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.
{"title":"Promising the Constitution","authors":"Richard M. Re","doi":"10.2139/SSRN.2619896","DOIUrl":"https://doi.org/10.2139/SSRN.2619896","url":null,"abstract":"The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive role in constitutional law, giving rise to an underappreciated tradition of promissory constitutionalism. For example, the Supreme Court has cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. This Article provides a new framework for understanding the oath, its moral content, and its implications for legal practice. Because it engenders a promise, the oath gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath provides a solution to the “dead hand problem” and explains how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. Constitutional duty thus flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"110 1","pages":"299-356"},"PeriodicalIF":1.9,"publicationDate":"2015-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68227637","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}
Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines — the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly associated together, they rely on very different triggers. This Essay provides a detailed analysis of these distinct features in an effort to harmonize the doctrines in the cell phone location data context.
{"title":"The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up","authors":"M. Bedi","doi":"10.2139/SSRN.2641115","DOIUrl":"https://doi.org/10.2139/SSRN.2641115","url":null,"abstract":"Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines — the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly associated together, they rely on very different triggers. This Essay provides a detailed analysis of these distinct features in an effort to harmonize the doctrines in the cell phone location data context.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"110 1","pages":"507-524"},"PeriodicalIF":1.9,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68236842","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}
Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to non-infringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. In this paper I draw upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.
{"title":"Inventing Around Copyright","authors":"D. Burk","doi":"10.31235/osf.io/cey2n","DOIUrl":"https://doi.org/10.31235/osf.io/cey2n","url":null,"abstract":"Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to non-infringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. In this paper I draw upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"109 1","pages":"547-562"},"PeriodicalIF":1.9,"publicationDate":"2014-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652428","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}
108 Northwestern University Law Review Colloquy 110 (2013)This essay takes a critical look at the tax fallout from the U.S. Supreme Court's decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples. In this essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships. Post-Windsor, same-sex couples will see this uncertainty multiply -- even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context. They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes. Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than fostering the recognition of a broader array of human relationships.
{"title":"The Moonscape of Tax Equality: Windsor and Beyond","authors":"Anthony C. Infanti","doi":"10.31228/osf.io/usrqc","DOIUrl":"https://doi.org/10.31228/osf.io/usrqc","url":null,"abstract":"108 Northwestern University Law Review Colloquy 110 (2013)This essay takes a critical look at the tax fallout from the U.S. Supreme Court's decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples. In this essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships. Post-Windsor, same-sex couples will see this uncertainty multiply -- even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context. They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes. Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than fostering the recognition of a broader array of human relationships.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"108 1","pages":"1115-1136"},"PeriodicalIF":1.9,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640522","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}
Personal jurisdiction is a mess, and only Congress can fix it. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. With these goals in conflict, each new fact pattern has pulled precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law. Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are from the same state, that state's courts are open. If not, the federal courts are. But today's law, thinking about places instead of persons, sows unnecessary confusion by obliging federal courts to follow state jurisdictional rules. This is a mistake, and something we can change. Following the invitation of a recent Supreme Court plurality, this Article suggests a system of nationwide federal personal jurisdiction, relieving federal courts of their jurisdictional dependence on state borders. In a federal forum, the court usually has undoubted authority over the parties--whose convenience can be addressed through well-crafted venue rules, backstopped by due process guarantees. Because our procedural rules have grown up in dependence on state jurisdiction, the Article goes on to draft legislative language addressing the new system's consequences for venue, choice of law, appeal rights, and other related issues. The Article's goal isn't to defend one specific proposal, but to encourage a variety of new proposals and, eventually, to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would write for ourselves--which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.
{"title":"How Congress Should Fix Personal Jurisdiction","authors":"Stephen E. Sachs","doi":"10.2139/SSRN.2203248","DOIUrl":"https://doi.org/10.2139/SSRN.2203248","url":null,"abstract":"Personal jurisdiction is a mess, and only Congress can fix it. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. With these goals in conflict, each new fact pattern has pulled precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law. Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are from the same state, that state's courts are open. If not, the federal courts are. But today's law, thinking about places instead of persons, sows unnecessary confusion by obliging federal courts to follow state jurisdictional rules. This is a mistake, and something we can change. Following the invitation of a recent Supreme Court plurality, this Article suggests a system of nationwide federal personal jurisdiction, relieving federal courts of their jurisdictional dependence on state borders. In a federal forum, the court usually has undoubted authority over the parties--whose convenience can be addressed through well-crafted venue rules, backstopped by due process guarantees. Because our procedural rules have grown up in dependence on state jurisdiction, the Article goes on to draft legislative language addressing the new system's consequences for venue, choice of law, appeal rights, and other related issues. The Article's goal isn't to defend one specific proposal, but to encourage a variety of new proposals and, eventually, to change the direction of the debate. Scholars should spend more time thinking about the jurisdictional rules we would write for ourselves--which the Constitution actually lets us do, at least for federal courts. Only Congress can fix personal jurisdiction; we should start telling it how.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"108 1","pages":"1301-1354"},"PeriodicalIF":1.9,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67984725","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}
Pub Date : 2012-07-26DOI: 10.4324/9781315088945-16
C. M. Corbin
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.
在Hosanna-Tabor福音派路德教会和学校诉平等就业机会委员会一案中，一名教师起诉她的雇主违反《美国残疾人法》对她进行报复。她的《美国残疾人法》诉讼的成功与否取决于最高法院是否认为她是一名部长。如果她不是部长，她可能会赢。毕竟，学校以书面形式表示，解雇她的主要原因是她受到诉讼威胁。但由于最高法院裁定她是一名部长，而根据部长例外，部长不得起诉他们的宗教雇主歧视，因此她败诉了。事实上，无论是“自由行使条款”还是“设立条款”都不需要部长例外。在Employment Division v. Smith案中，普遍适用的中立法律并不违反自由行使条款，没有人对《美国残疾人法》是普遍适用的中立法律提出异议。在试图区分史密斯案时，最高法院不仅创造了一个不连贯的自由行使法理学，而且忽视了琼斯诉沃尔夫案，后者明确拒绝在内部治理问题上全盘服从宗教机构。琼斯进一步认识到，与中立的法律原则相比，遵从原则可能会造成更多的建制问题。事实上，霍萨纳-塔博尔案的讽刺之处在于，试图辨别这位教师是否为牧师，比简单地裁决她的报复主张更使法院陷入宗教教义的纠缠。
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This is my opening statement in a 4-part exchange between Professor Teachout and me. The test of great scholarship is that it changes the way people think and the way people live. That is also true for legal academic scholarship. But, for legal academics, perhaps, the greatest sign of scholarly achievement is judicial reliance upon our craftsmanship. By any of these measures, Professor Teachout’s 2009 Cornell Law Review publication, The Anti-Corruption Principle, is a success. One short year after publication, in 2010, Anti-Corruption Principle was relied upon by Justice Stevens in his Citizens United v. Federal Elections Committee dissent, just as it was cited, disapprovingly, by Justice Scalia in his concurrence. If that were not enough of an accomplishment, Anti-Corruption Principle has also been cited in practitioners’ Supreme Court briefs, in other federal and state appellate and trial court briefs, and in some thirty academic articles. Finally, Anti-Corruption Principle has entered the public discourse: George Will excoriated Teachout’s article in his nationally syndicated column. Now, that is an achievement. Teachout’s Anti-Corruption Principle is part-and-parcel of the originalist project. It is an attempt to understand the Constitution in light of its text, drafting records, ratification debates, and general late eighteenth century history. Specifically, Teachout makes three related historical and interpretive claims. First, the Framers were “obsessed” with corruption. In other words, preventing or, at least, minimizing corruption was among the Framers’ primary goals, and absent an appreciation of this purpose, one cannot understand either the Constitution’s global architecture or several of its key structural provisions. Second, these separate individual anti-corruption constitutional provisions, working together, give rise to a separate or free-standing structural anti-corruption principle (“ACP”). And, third, the ACP can compete against other constitutional provisions and doctrines, thereby providing originalist foundations for upholding congressional enactments which would otherwise be struck down under competing principles. For example, Teachout points to the Foreign Emoluments Clause (“FEC”), which provides: [N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Teachout suggests that foreign governments which lack loyalties running to the United States, may be analogized to “wealthy corporations,” whose “legal loyalties necessarily exclude patriotism.” Just as Congress, under the FEC, may proscribe (at least certain) federal officers from accepting gifts from foreign governments, Congress, Teachout suggests, may also have a concomitant power under the ACP to proscribe corporate election campaign contributions and spending. The stakes here are
这是我和提奇奥特教授四部分交流的开场白。对伟大学术的检验是看它能改变人们的思维方式和生活方式。法律学术研究也是如此。但是，对于法律学者来说，也许学术成就的最大标志是司法对我们技术的依赖。从以上任何一项衡量标准来看，蒂奇奥特教授2009年在《康奈尔法律评论》上发表的《反腐败原则》都是成功的。在出版后的短短一年内，也就是2010年，史蒂文斯大法官在其联合公民诉联邦选举委员会(Citizens United v. Federal election Committee)的异议中引用了《反腐败原则》，就像斯卡利亚大法官在他的意见书中不赞成地引用了它一样。如果这还不足以说明这是一项成就，那么反腐败原则还在从业者的最高法院简报、其他联邦和州上诉和初审法院简报以及大约三十篇学术文章中被引用。最后，《反腐败原则》进入了公众话语:乔治·威尔在他的全国联合专栏中痛斥了蒂奇奥特的文章。这是一项成就。蒂奇奥特的反腐败原则是原旨主义项目的重要组成部分。它试图根据宪法文本、起草记录、批准辩论和18世纪晚期的一般历史来理解宪法。具体来说，蒂奇奥特提出了三个相关的历史和解释性主张。首先，制宪者对腐败“着迷”。换句话说，防止或至少尽量减少腐败是制宪者的主要目标之一，如果不了解这一目的，人们就无法理解宪法的全球架构或其几个关键的结构性条款。其次，这些单独的反腐败宪法条款共同作用，产生了一个单独或独立的结构性反腐败原则(“ACP”)。第三，ACP可以与其他宪法条款和原则竞争，从而为维护国会法规提供原旨主义基础，否则这些法规将在竞争原则下被推翻。例如，蒂奇奥特指出，《外国薪酬条款》(“FEC”)规定:[任何]在他们(即美国)之下担任任何利润或信托职务的人，未经国会同意，不得接受来自任何国王、王子或外国的任何礼物、薪酬、职务或任何种类的头衔。蒂奇奥特认为，对美国缺乏忠诚的外国政府可以被比作“富有的公司”，它们“对法律的忠诚必然排斥爱国主义”。蒂奇奥特认为，正如国会根据联邦选举委员会可以禁止(至少是某些)联邦官员接受外国政府的礼物一样，国会也可能在ACP下拥有禁止企业竞选捐款和支出的附带权力。这里的利害关系相当高:如果蒂奇奥特是正确的，那么根据新发现的(或重新发现的)宪法解释原则，许多第一修正案的原则和选举法的判例将不得不让位(或至少被认真地重新审视)。事实上，史蒂文斯大法官和三位持不同政见者正是把“联合公民”作为这样一个场合:持不同政见者试图根据与之竞争的宪法愿景——制宪者的反腐败原则——来重塑第一修正案的法理。其他评论家对蒂奇奥特分析的第二步和第三步提出了批评。相比之下，我的评论将主要集中在蒂奇奥特分析的第一步——她最初的历史和文本主张。蒂奇奥特的历史主张完全是错误的:国父们并不“痴迷”腐败。其次，蒂奇奥特误解了宪法文本，从而产生了她所谓的独立反腐败原则。即使有人承认(事实上，我承认)存在独立的反腐败原则，该原则的范围也仅限于任命的联邦办公室，而不是(州或联邦)选举职位。因此，蒂奇奥特的ACP不能为我们关于国会对州或联邦选举过程的权力的第一修正案分析提供依据。本文于2012年4月发表于Colloquy;它将在2012年12月左右的《西北大学法律评论》上重印。
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