The Supreme Court's decision in the Kelo case has been widely criticized, and has ignited a firestorm of reform in the states. Twenty-three state legislatures have passed reform statutes, and nineteen of these statutes have been signed into law. Reform legislation has been introduced in at least 13 other states. This Essay addresses the question of what message is sent by - what is the expressive meaning of - the Kelo-inspired reform movement. My argument is that, in substantial part, this reform movement privileges the stability of middle-class households relative to the stability of poor households, and in so doing, expresses the view that the interests and needs of poor households are relatively unimportant.
{"title":"The Law and Expressive Meaning of Condemning the Poor After Kelo","authors":"David A. Dana","doi":"10.2139/SSRN.917891","DOIUrl":"https://doi.org/10.2139/SSRN.917891","url":null,"abstract":"The Supreme Court's decision in the Kelo case has been widely criticized, and has ignited a firestorm of reform in the states. Twenty-three state legislatures have passed reform statutes, and nineteen of these statutes have been signed into law. Reform legislation has been introduced in at least 13 other states. This Essay addresses the question of what message is sent by - what is the expressive meaning of - the Kelo-inspired reform movement. My argument is that, in substantial part, this reform movement privileges the stability of middle-class households relative to the stability of poor households, and in so doing, expresses the view that the interests and needs of poor households are relatively unimportant.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67878527","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}
{"title":"Reclaiming \"abandoned\" DNA: the Fourth Amendment and genetic privacy.","authors":"Elizabeth E Joh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26586746","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}
I. THE DEFINITION(S) OF FEDERAL COMMON LAW 589 II. THE ENCLAVES OF FEDERAL COMMON LAW 594 A. Cases Affecting the Rights and Obligations of the United States 594 B. Interstate Controversies 596 C. International Relations 599 D. Admiralty 602 E. "Significant Conflicts " Between "Uniquely Federal Interests " and the Operation of State Law 607 F. Preclusion 609 III. THE INADEQUACIES OF PRESENT THEORIES 614 A. Theories of Illegitimacy 614 B. Theories of Broad Power and Discretion 616 C. The Enclave Theories 620 IV. A THEORY OF FEDERAL COMMON LAW 627 A. The Basic Theory 627 B. Applying the Theory to the Enclaves of Federal Common Law 630 C. Bias in the Creation of State Law: A Necessary but Insufficient Condition. 644 D. Explaining the Incorporation of State Law as the Federal Common Law Rule 646 CONCLUSION: JUSTIFYING FEDERAL COMMON LAW 649 Federal common law is a puzzle. Despite Erie's declaration that "[t]here is no federal general common law,"1 well-established and stable pockets of federal common law persist in several areas: cases affecting the rights and obligations of the United States,2 disputes between states,3 cases affecting international relations,4 and admiralty.5 If anything, federal common law is expanding. Eighteen years ago, a case in which state law was in "significant conflict" with "uniquely federal interests" provided an occasion for the Supreme Court to create another form of federal common law.6 Five years ago, the Court added yet another piece to the puzzle, holding that the preclusive effect to be given to a judgment in a diversity case was a question of federal common law.7 Erie, of course, does not preclude common law rulemaking in these pockets. In these areas, federal common law applies in both state and federal courts; Erie bars federal courts only from creating federal common law applicable in federal courts when state courts would apply state law.8 But the statutory, policy, and constitutional rationales of Erie are in tension with the continued existence of federal common law.9 If federal (and state) courts have broad powers to make federal common law, then the power refused to federal courts in Erie pales in comparison to the power retained by federal (and state) courts to establish federal rules of decision. Reconciling Erie and federal common law is only a part of the challenge. Following the analysis of Paul Mishkin10 and Henry Friendly,11 the Supreme Court has held that courts are not required to exercise their federal common lawmaking powers in all cases; the application is in some cases discretionary, and courts can choose to apply extant state law rather than to create new federal law.12 As a practical matter, this declination of power lessens the tensions with Erie's penumbra. …
{"title":"A Theory of Federal Common Law","authors":"Jay Tidmarsh","doi":"10.2307/1323641","DOIUrl":"https://doi.org/10.2307/1323641","url":null,"abstract":"I. THE DEFINITION(S) OF FEDERAL COMMON LAW 589 II. THE ENCLAVES OF FEDERAL COMMON LAW 594 A. Cases Affecting the Rights and Obligations of the United States 594 B. Interstate Controversies 596 C. International Relations 599 D. Admiralty 602 E. \"Significant Conflicts \" Between \"Uniquely Federal Interests \" and the Operation of State Law 607 F. Preclusion 609 III. THE INADEQUACIES OF PRESENT THEORIES 614 A. Theories of Illegitimacy 614 B. Theories of Broad Power and Discretion 616 C. The Enclave Theories 620 IV. A THEORY OF FEDERAL COMMON LAW 627 A. The Basic Theory 627 B. Applying the Theory to the Enclaves of Federal Common Law 630 C. Bias in the Creation of State Law: A Necessary but Insufficient Condition. 644 D. Explaining the Incorporation of State Law as the Federal Common Law Rule 646 CONCLUSION: JUSTIFYING FEDERAL COMMON LAW 649 Federal common law is a puzzle. Despite Erie's declaration that \"[t]here is no federal general common law,\"1 well-established and stable pockets of federal common law persist in several areas: cases affecting the rights and obligations of the United States,2 disputes between states,3 cases affecting international relations,4 and admiralty.5 If anything, federal common law is expanding. Eighteen years ago, a case in which state law was in \"significant conflict\" with \"uniquely federal interests\" provided an occasion for the Supreme Court to create another form of federal common law.6 Five years ago, the Court added yet another piece to the puzzle, holding that the preclusive effect to be given to a judgment in a diversity case was a question of federal common law.7 Erie, of course, does not preclude common law rulemaking in these pockets. In these areas, federal common law applies in both state and federal courts; Erie bars federal courts only from creating federal common law applicable in federal courts when state courts would apply state law.8 But the statutory, policy, and constitutional rationales of Erie are in tension with the continued existence of federal common law.9 If federal (and state) courts have broad powers to make federal common law, then the power refused to federal courts in Erie pales in comparison to the power retained by federal (and state) courts to establish federal rules of decision. Reconciling Erie and federal common law is only a part of the challenge. Following the analysis of Paul Mishkin10 and Henry Friendly,11 the Supreme Court has held that courts are not required to exercise their federal common lawmaking powers in all cases; the application is in some cases discretionary, and courts can choose to apply extant state law rather than to create new federal law.12 As a practical matter, this declination of power lessens the tensions with Erie's penumbra. …","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1323641","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283130","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}
Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others' efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe the concept of legal doctrine and propound various theories of how legal doctrine may matter in judicial decision making and how those theories may be empirically tested.
{"title":"What is Legal Doctrine","authors":"Emerson H. Tiller, F. Cross","doi":"10.2139/SSRN.730284","DOIUrl":"https://doi.org/10.2139/SSRN.730284","url":null,"abstract":"Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others' efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe the concept of legal doctrine and propound various theories of how legal doctrine may matter in judicial decision making and how those theories may be empirically tested.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2005-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.730284","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67814262","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}
More than 5600 children die in this country every year as the result of unintentional injuries. Although these deaths are not all the result of parental negligence, a significant percentage are. Despite the prevalence of this phenomenon, we know almost nothing about how these cases are treated by the criminal justice system. Commentators frequently claim, without empirical support, that parents are rarely prosecuted, and prosecutors are relying on this common perception in making charging decisions in individual cases. This article broadens our understanding of how the criminal justice system treats parental negligence cases by reporting on the results of my empirical study examining one common cause of death, leaving a child unattended in a motor vehicle. The results fly in the face of conventional wisdom: parents were in fact prosecuted in more than fifty percent of the incidents. Moreover, blue collar parents were far more likely to be prosecuted than parents from wealthier socio-economic groups. The article then shifts from the descriptive to the normative, as it considers the extremely difficult question whether these parents should be prosecuted. Specifically, what should be the relevance of a defendant's emotional suffering when making a prosecution decision? The article argues that consideration of suffering is best left to the time of sentencing, because declining to charge defendants who are experiencing emotional pain as the result of the crimes they committed denigrates the lives of child victims and raises real concerns about equality of treatment.
{"title":"Crime and Parenthood: The Uneasy Case for Prosecution of Negligent Parents","authors":"J. Collins","doi":"10.2139/SSRN.673451","DOIUrl":"https://doi.org/10.2139/SSRN.673451","url":null,"abstract":"More than 5600 children die in this country every year as the result of unintentional injuries. Although these deaths are not all the result of parental negligence, a significant percentage are. Despite the prevalence of this phenomenon, we know almost nothing about how these cases are treated by the criminal justice system. Commentators frequently claim, without empirical support, that parents are rarely prosecuted, and prosecutors are relying on this common perception in making charging decisions in individual cases. This article broadens our understanding of how the criminal justice system treats parental negligence cases by reporting on the results of my empirical study examining one common cause of death, leaving a child unattended in a motor vehicle. The results fly in the face of conventional wisdom: parents were in fact prosecuted in more than fifty percent of the incidents. Moreover, blue collar parents were far more likely to be prosecuted than parents from wealthier socio-economic groups. The article then shifts from the descriptive to the normative, as it considers the extremely difficult question whether these parents should be prosecuted. Specifically, what should be the relevance of a defendant's emotional suffering when making a prosecution decision? The article argues that consideration of suffering is best left to the time of sentencing, because declining to charge defendants who are experiencing emotional pain as the result of the crimes they committed denigrates the lives of child victims and raises real concerns about equality of treatment.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2005-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67792502","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 law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, "The Concept of Law," by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts.But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law.This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism.Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism.Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. exp
每个法律体系中的法律都是某个社会群体实践的功能。简而言之，法律是一种基于社会的规范。哈特(H.L.A Hart)在他的著作《法律的概念》(The Concept of Law)中提出了这一观点，他认为法律源于一种社会规则，即所谓的承认规则。但是，社会事实在法律的产生中起着基础性作用这一命题，是所有英美传统现代法学家的共识:不仅是哈特及其实证主义学派的追随者，最突出的是约瑟夫·拉兹(Joseph Raz)和朱尔斯·科尔曼(Jules Coleman)，还有反实证主义者罗纳德·德沃金(Ronald Dworkin)，他认为法律必须将道德考虑与社会事实综合起来。但是，哪个群体的做法是每个法律体系的基础呢?特别是，哪个团体的做法是美国法律的基础?自哈特以来的实证主义者普遍指出，官员或法官是公认的共同体(我的术语):这个群体的规则、惯例、合作活动或在某种意义上的实践是社会事实，而特定法律体系的法律是从这些社会事实中衍生出来的。因此，哈特和所有其他实证主义者都认为，美国官员或美国法官是美国法律的公认群体。本文试图探讨实证主义者对承认共同体的官方或以法官为中心的描述，与现在被宪法学者如拉里·克莱默、罗伯特·波斯特、瑞瓦·西格尔、马克·图什内特、杰里米·沃尔德伦和许多其他人广泛捍卫的流行宪政之间的紧张关系。当然，受欢迎的宪法主义者会想要宣称，美国公民，而不是法官或官员，才是美国法律的认可群体。我把这种立场称为深度大众宪政。事实上，德沃金对法律的描述，在其为全体公民产生关联道德义务的野心中，隐含着深刻的大众宪政主义。在这一点上，德沃金和实证主义者之间存在一个迄今未被注意到的分歧。对于这种分歧，我的解决方案是，通过提供一种与群体相关的法律解释，消解这种分歧——对于根深蒂固的大众立宪主义者与根深蒂固的官方或司法至上主义者之间的辩论。社会规范，如着装或饮食规范，显然是群体相关的。一个特定的穿着或饮食行为可能相对于一个群体的社会规范是合适的，但相对于另一个群体的社会规范是不合适的。本文将群体相关的观点从社会规范扩展到法律本身，并特别关注美国法律和宪政。第一部分是法学文献综述。它显示了哈特和后继者实证主义者是如何将承认规则视为官员或官员的某些子集(法官)所从事的社会实践，而不是一般的公民，并认为德沃金相反地将公民视为一个整体作为他的承认共同体。第二部分和第三部分对法律的群体相关解释进行了辩护。第二部分以美国的经验为参照，论证了多个群体可以同时实例化支撑法律的社会事实，可能是惯例、社会规范、共享合作活动(SCA)或其他东西。在美国宪法历史上的许多时期，按照部门、党派、地区、州-联邦、宗教或其他界线界定的多个官方或公民团体，都接受了相互竞争的美国法律承认规则。第三部分认为，法律的功能，主要是作为一个解释性或规范性的结构，坚持一个单一的承认共同体为每一个法律制度将是武断的，无论是解释的目的和规范的目的。第四部分考虑了群体相对解释对美国宪法理论的许多影响，特别是对大众宪政的影响。
{"title":"Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?","authors":"M. Adler","doi":"10.2139/SSRN.603442","DOIUrl":"https://doi.org/10.2139/SSRN.603442","url":null,"abstract":"The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, \"The Concept of Law,\" by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts.But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law.This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism.Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism.Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. exp","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2004-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67773416","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}
Elizabeth Magill, M. E. Magilt, Eric Claeys, John Harrison, John Jeffries, Mike Klarman, Daryl Levinson
I. INTRODUCTION A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what has happened, and the wisdom of what has happened. But they all agree that something has happened. There has been genuine innovation in this area of constitutional law. Not so with separation of powers doctrine. Commentators do not perceive important shifts in the doctrine. Nor should they-the reasoning and results in the Rehnquist Court cases are of a piece with what came before. Lack of "revolution" (using the term loosely) was not for lack of opportunity. The Supreme Court had many opportunities to revise its doctrines. And, from the perspective that the Court has invoked in explaining many of its federalism cases, there is much-very much, in fact-that is not right about the structure of the federal government and the constitutional rules that permit that structure. This paper asks why there has been no "revolution" in separation of powers jurisprudence during the Rehnquist Court. Many would expect doctrinal developments in federalism and separation of powers to track one another. Investigating why they have not done so reveals, in fact, that the internal and external factors that influence the developments in the two areas are quite different. II. READING THE REHNQUIST` COURT A. A Federalism Revolution The Rehnquist Court has worked important changes in the doctrines relating to federalism. For the first time since the post-New Deal period, the Court has invalidated some acts of Congress as beyond the scope of the commerce power, making clear in the process that there are some judicially enforceable outer limits on the scope of that power.1 It has also invalidated some acts of Congress on Tenth2 and Eleventh Amendment3 grounds. And it has held invalid some exercises of Congress's power under Section 5 of the Fourteenth Amendment.4 While their long-range effects are not entirely clear, taken together the Court's rulings plainly restrict the scope of federal power. B. Separation of Powers The Rehnquist Court had a steady stream of separation of powers cases,5 and it becomes a flood if one includes Article III standing cases.6 Several of the cases were high-profile and politically salient. The Court validated the Independent Counsel Act7 and the creation of the U.S. Sentencing Commission;8 it invalidated the line-item veto9 and rebuffed President Clinton's executive-power based claim that he was entitled to a stay in a civil suit arising out of actions he took before he was President.10 There were low-profile cases as well, some of them consequential. The Court invalidated a statute extending the statute of limitations for securities fraud cases;" it rejected a challenge to a statute on Origination Clause grounds;12 it sustained delegations of authority from Congress to the executive13 and the j
{"title":"The Revolution That Wasn't","authors":"Elizabeth Magill, M. E. Magilt, Eric Claeys, John Harrison, John Jeffries, Mike Klarman, Daryl Levinson","doi":"10.2307/j.ctt20bbwnm.4","DOIUrl":"https://doi.org/10.2307/j.ctt20bbwnm.4","url":null,"abstract":"I. INTRODUCTION A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what has happened, and the wisdom of what has happened. But they all agree that something has happened. There has been genuine innovation in this area of constitutional law. Not so with separation of powers doctrine. Commentators do not perceive important shifts in the doctrine. Nor should they-the reasoning and results in the Rehnquist Court cases are of a piece with what came before. Lack of \"revolution\" (using the term loosely) was not for lack of opportunity. The Supreme Court had many opportunities to revise its doctrines. And, from the perspective that the Court has invoked in explaining many of its federalism cases, there is much-very much, in fact-that is not right about the structure of the federal government and the constitutional rules that permit that structure. This paper asks why there has been no \"revolution\" in separation of powers jurisprudence during the Rehnquist Court. Many would expect doctrinal developments in federalism and separation of powers to track one another. Investigating why they have not done so reveals, in fact, that the internal and external factors that influence the developments in the two areas are quite different. II. READING THE REHNQUIST` COURT A. A Federalism Revolution The Rehnquist Court has worked important changes in the doctrines relating to federalism. For the first time since the post-New Deal period, the Court has invalidated some acts of Congress as beyond the scope of the commerce power, making clear in the process that there are some judicially enforceable outer limits on the scope of that power.1 It has also invalidated some acts of Congress on Tenth2 and Eleventh Amendment3 grounds. And it has held invalid some exercises of Congress's power under Section 5 of the Fourteenth Amendment.4 While their long-range effects are not entirely clear, taken together the Court's rulings plainly restrict the scope of federal power. B. Separation of Powers The Rehnquist Court had a steady stream of separation of powers cases,5 and it becomes a flood if one includes Article III standing cases.6 Several of the cases were high-profile and politically salient. The Court validated the Independent Counsel Act7 and the creation of the U.S. Sentencing Commission;8 it invalidated the line-item veto9 and rebuffed President Clinton's executive-power based claim that he was entitled to a stay in a civil suit arising out of actions he took before he was President.10 There were low-profile cases as well, some of them consequential. The Court invalidated a statute extending the statute of limitations for securities fraud cases;\" it rejected a challenge to a statute on Origination Clause grounds;12 it sustained delegations of authority from Congress to the executive13 and the j","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68739016","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 paper engages one of the fastest-growing topics in property theory, the anticommons. The anticommons idea originated in Frank Michelman's description of a regulatory regime in which nobody could use a particular resource without the permission of everyone else. Michael Heller's subsequent construction of a category of anticommons property corresponding to recognizable resource problems sparked a surge of scholarly interest in the notion. The anticommons template has now been applied in many property contexts, from patents to land use. However, some of the key criteria scholars have offered for identifying an anticommons and distinguishing it from an ordinary commons collapse upon scrutiny. The fragility of the existing boundaries between commons and anticommons suggests a larger question that takes center stage here: How might the universe of common and interdependent resource problems be most usefully carved up? In addressing that question, the paper makes three contributions. First, it develops a functional taxonomy for categorizing common interest tragedies. This taxonomy breaks tragedies into categories at the macro level based on the pattern of strategic interaction they embody, and further differentiates among tragedies at the micro level based on the shape of the production function for the resulting surplus or deficit. Second, the paper explores underappreciated connections between types of resource-related dilemmas, and highlights the choices that often must be made between two potential tragedies in complex, interdependent settings. Third, the paper shows how the taxonomy developed here offers access to analytic tools for making such choices. The approach taken here is therefore designed to provide greater analytical traction on resource allocation problems, as well as to advance dialogue in this area of property theory.
{"title":"Common Interest Tragedies","authors":"L. Fennell","doi":"10.2139/SSRN.474380","DOIUrl":"https://doi.org/10.2139/SSRN.474380","url":null,"abstract":"This paper engages one of the fastest-growing topics in property theory, the anticommons. The anticommons idea originated in Frank Michelman's description of a regulatory regime in which nobody could use a particular resource without the permission of everyone else. Michael Heller's subsequent construction of a category of anticommons property corresponding to recognizable resource problems sparked a surge of scholarly interest in the notion. The anticommons template has now been applied in many property contexts, from patents to land use. However, some of the key criteria scholars have offered for identifying an anticommons and distinguishing it from an ordinary commons collapse upon scrutiny. The fragility of the existing boundaries between commons and anticommons suggests a larger question that takes center stage here: How might the universe of common and interdependent resource problems be most usefully carved up? In addressing that question, the paper makes three contributions. First, it develops a functional taxonomy for categorizing common interest tragedies. This taxonomy breaks tragedies into categories at the macro level based on the pattern of strategic interaction they embody, and further differentiates among tragedies at the micro level based on the shape of the production function for the resulting surplus or deficit. Second, the paper explores underappreciated connections between types of resource-related dilemmas, and highlights the choices that often must be made between two potential tragedies in complex, interdependent settings. Third, the paper shows how the taxonomy developed here offers access to analytic tools for making such choices. The approach taken here is therefore designed to provide greater analytical traction on resource allocation problems, as well as to advance dialogue in this area of property theory.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744256","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 revisits the debate over the institutional foundations of the efficiency in the common law by examining the supply-side conditions of the production of common law legal rules. Previous models of efficiency in the common law, such as those proposed by Paul Rubin and George Priest, have stressed the "demand" side of the production of common law legal rules. They have argued that the driving force in the evolution of the common law are the actions of private litigants that generate a "demand" for the production of legal rules. It has been argued that these litigation efforts by private parties can explain both the common law's historic tendency to produce efficient rules as well as its more recent evolution away from efficiency in favor of wealth redistribution. This article does not directly challenge the traditional "demand side" model, but it proposes to supplement the model with a "supply side" model of the evolution of the common law that examines the institutional incentives and constraints of common law judges over time. It is argued that the traditional efficiency of the common law arose in the context of a particular historical institutional setting and that changes in that institutional framework have made the common law more susceptible to rent-seeking pressures and thereby undermined its pro-efficiency orientation. The article first describes the traditional demand-side explanation for the rise and fall of efficiency in the common law. The article then distinguishes a supply-side model of efficiency in the common law, examining the historical institutional framework that generated the common law. It will be argued that the common law evolved in a particular institutional framework that differed substantially from the modern set of institutional constraints faced by judges and which render the modern understanding of judicial constraints quite anachronistic. The article argues that there were certain characteristics of the institutional structure that produced the common law that tended to encourage the production of efficient common law rules: (1) the doctrine of "weak precedent" under the common law, (2) the polycentric legal order of the judicial system in the era in which the common law was formed, and (3) the reliance of the common law on private ordering, including freedom of contract and custom. The article then explains how changes in this institutional framework has generated a decline of the efficiency of the common law and a rise in rent-seeking pressures that has caused the common law's evolutionary path to deviate in recent decades.
{"title":"The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis","authors":"Todd J. Zywicki","doi":"10.2139/SSRN.326740","DOIUrl":"https://doi.org/10.2139/SSRN.326740","url":null,"abstract":"This article revisits the debate over the institutional foundations of the efficiency in the common law by examining the supply-side conditions of the production of common law legal rules. Previous models of efficiency in the common law, such as those proposed by Paul Rubin and George Priest, have stressed the \"demand\" side of the production of common law legal rules. They have argued that the driving force in the evolution of the common law are the actions of private litigants that generate a \"demand\" for the production of legal rules. It has been argued that these litigation efforts by private parties can explain both the common law's historic tendency to produce efficient rules as well as its more recent evolution away from efficiency in favor of wealth redistribution. This article does not directly challenge the traditional \"demand side\" model, but it proposes to supplement the model with a \"supply side\" model of the evolution of the common law that examines the institutional incentives and constraints of common law judges over time. It is argued that the traditional efficiency of the common law arose in the context of a particular historical institutional setting and that changes in that institutional framework have made the common law more susceptible to rent-seeking pressures and thereby undermined its pro-efficiency orientation. The article first describes the traditional demand-side explanation for the rise and fall of efficiency in the common law. The article then distinguishes a supply-side model of efficiency in the common law, examining the historical institutional framework that generated the common law. It will be argued that the common law evolved in a particular institutional framework that differed substantially from the modern set of institutional constraints faced by judges and which render the modern understanding of judicial constraints quite anachronistic. The article argues that there were certain characteristics of the institutional structure that produced the common law that tended to encourage the production of efficient common law rules: (1) the doctrine of \"weak precedent\" under the common law, (2) the polycentric legal order of the judicial system in the era in which the common law was formed, and (3) the reliance of the common law on private ordering, including freedom of contract and custom. The article then explains how changes in this institutional framework has generated a decline of the efficiency of the common law and a rise in rent-seeking pressures that has caused the common law's evolutionary path to deviate in recent decades.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.326740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68580116","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 uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.
{"title":"The President's Power to Detain \"Enemy Combatants\": Modern Lessons from Mr. Madison's Forgotten War","authors":"I. Wuerth","doi":"10.2139/SSRN.467344","DOIUrl":"https://doi.org/10.2139/SSRN.467344","url":null,"abstract":"This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of \"enemy combatants\" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed \"Mr. Madison's War\" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war on terrorism. It is the only declared war of the new republic that offers founding-era views on military authority under the Constitution. And the cases themselves have not been overruled or rendered obsolete in the intervening years; instead they illustrate the enduring importance of congressional authorization and international law in setting the scope of the President's war powers. Considered as a whole, the War of 1812 cases thus provide strong reasons to reconsider the courts' recent enemy combatant jurisprudence.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67743252","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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