The liberal political theory that was used to rationalize the apportionment jurisprudence of the 1960s suggests--with a little republican help from the notion of "virtual representation"--the possibility of extra votes for parents on account of their children. It suggests the notion so clearly that the almost complete absence of the idea from American political discourse is something of a mystery. The mystery is deepened by the fact that apportionment is usually done according to total population. Extra voting power is thus already being cast on account of children, but by the district population as a whole, rather than parents. The extra votes idea has surfaced recently, but barely. This Article explores the implications of its mysterious obscurity. The Article proposes a conversational theory of American democracy, in which public involvement in democratic conversation is the glue that holds the system together. Competitive elections are an essential stimulus for this conversation. The conversational theory is descriptive rather than normative. This accounts for a good deal of its superior descriptive force when compared with liberal and republican theories, which are normative in inspiration and are then turned to descriptive tasks, often without an appreciation of the shift. The conversational theory comfortably accommodates the continued obscurity of the extra votes possibilities, as well as many other aspects of American political life that cry out for explanation in liberal (or republican) terms. It explains, for instance, the apparent success of the United States Senate, an institution well-suited to democratic conversation, but quite awkward in liberal terms. The extra votes idea may yet catch on, because American democracy is influenced by normative visions. Whether that happens or not, however, there is much to be learned from the fact that the idea remains largely unattended.
{"title":"Should Parents Be Given Extra Votes on Account of Their Children?: Toward a Conversational Understanding of American Democracy","authors":"R. Bennett","doi":"10.2139/SSRN.186071","DOIUrl":"https://doi.org/10.2139/SSRN.186071","url":null,"abstract":"The liberal political theory that was used to rationalize the apportionment jurisprudence of the 1960s suggests--with a little republican help from the notion of \"virtual representation\"--the possibility of extra votes for parents on account of their children. It suggests the notion so clearly that the almost complete absence of the idea from American political discourse is something of a mystery. The mystery is deepened by the fact that apportionment is usually done according to total population. Extra voting power is thus already being cast on account of children, but by the district population as a whole, rather than parents. The extra votes idea has surfaced recently, but barely. This Article explores the implications of its mysterious obscurity. The Article proposes a conversational theory of American democracy, in which public involvement in democratic conversation is the glue that holds the system together. Competitive elections are an essential stimulus for this conversation. The conversational theory is descriptive rather than normative. This accounts for a good deal of its superior descriptive force when compared with liberal and republican theories, which are normative in inspiration and are then turned to descriptive tasks, often without an appreciation of the shift. The conversational theory comfortably accommodates the continued obscurity of the extra votes possibilities, as well as many other aspects of American political life that cry out for explanation in liberal (or republican) terms. It explains, for instance, the apparent success of the United States Senate, an institution well-suited to democratic conversation, but quite awkward in liberal terms. The extra votes idea may yet catch on, because American democracy is influenced by normative visions. Whether that happens or not, however, there is much to be learned from the fact that the idea remains largely unattended.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"503-565"},"PeriodicalIF":1.9,"publicationDate":"2000-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67763648","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":"Mothers and doctors' orders: unmasking the doctor's fiduciary role in maternal-fetal conflicts.","authors":"M Oberman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 2","pages":"451-501"},"PeriodicalIF":1.9,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22132342","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}
Statutory interpretation has been a fertile area of scholarship, but we know relatively little about the practical impact of various theories of interpretation. The ideal test would involve presenting randomly selected cases to two judges who are similar in most other respects but have sharply different theories of interpretation. As it happens, such a situation is presented by Judges Posner and Easterbrook, who have sat together on over 800 reported panel decisions. (Because en banc cases are subject to selection bias, they are discussed separately in the paper.) Posner is a leading advocate of pragmatism, while Easterbrook is equally well-known for his support of formalism. As it turns out, the two judges voted differently in only one percent of these roughly 800 cases. This is substantially below the average level of disagreement among Seventh Circuit judges, and is also below the average rate for courts of appeals generally. Moreover, a careful examination of the statutory cases in which the two judges disagreed confirms that their theoretical disputes were not outcome determinative. Because Posner and Easterbrook have shown particularly serious interests in theories of interpretation (compared to most judges), the apparently slight level of impact on outcomes seems especially surprising. While far from definitive, this study suggests strongly that the conventional wisdom on this point significantly overestimates the impact of a judge's theoretical stances on voting behavior.
{"title":"Do Theories of Statutory Interpretation Matter? A Case Study","authors":"D. Farber","doi":"10.2139/SSRN.186135","DOIUrl":"https://doi.org/10.2139/SSRN.186135","url":null,"abstract":"Statutory interpretation has been a fertile area of scholarship, but we know relatively little about the practical impact of various theories of interpretation. The ideal test would involve presenting randomly selected cases to two judges who are similar in most other respects but have sharply different theories of interpretation. As it happens, such a situation is presented by Judges Posner and Easterbrook, who have sat together on over 800 reported panel decisions. (Because en banc cases are subject to selection bias, they are discussed separately in the paper.) Posner is a leading advocate of pragmatism, while Easterbrook is equally well-known for his support of formalism. As it turns out, the two judges voted differently in only one percent of these roughly 800 cases. This is substantially below the average level of disagreement among Seventh Circuit judges, and is also below the average rate for courts of appeals generally. Moreover, a careful examination of the statutory cases in which the two judges disagreed confirms that their theoretical disputes were not outcome determinative. Because Posner and Easterbrook have shown particularly serious interests in theories of interpretation (compared to most judges), the apparently slight level of impact on outcomes seems especially surprising. While far from definitive, this study suggests strongly that the conventional wisdom on this point significantly overestimates the impact of a judge's theoretical stances on voting behavior.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"1409"},"PeriodicalIF":1.9,"publicationDate":"1999-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67763342","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 introduces an informal model of contracting where courts are assumed to be radically incompetent, that is, they are unable to determine whether a party in a contract dispute has engaged in opportunistic behavior (breach), although they can determine whether parties intended to enter a legally enforceable contract. Under this assumption courts cannot perform their normal function in standard economic analysis of contract law, where they deter opportunistic breach because they can verify the promisor's behavior. Nonetheless, the model shows that despite judicial incompetence people will voluntarily enter legally enforceable, jointly valuable contracts. The reason is that when parties care about their reputations, and are engaged in repeated interaction, they can deter certain forms of otherwise profitable opportunism by credibly threatening a mutually destructive lawsuit. The law, on this theory, generates value not by directly deterring bad behavior, but by supplying parties with the ability to retaliate when they are harmed. The paper explores the model's implications for understanding contracting and contract law.
{"title":"A Theory of Contract Law under Conditions of Radical Judicial Error","authors":"E. Posner","doi":"10.2139/SSRN.173788","DOIUrl":"https://doi.org/10.2139/SSRN.173788","url":null,"abstract":"This paper introduces an informal model of contracting where courts are assumed to be radically incompetent, that is, they are unable to determine whether a party in a contract dispute has engaged in opportunistic behavior (breach), although they can determine whether parties intended to enter a legally enforceable contract. Under this assumption courts cannot perform their normal function in standard economic analysis of contract law, where they deter opportunistic breach because they can verify the promisor's behavior. Nonetheless, the model shows that despite judicial incompetence people will voluntarily enter legally enforceable, jointly valuable contracts. The reason is that when parties care about their reputations, and are engaged in repeated interaction, they can deter certain forms of otherwise profitable opportunism by credibly threatening a mutually destructive lawsuit. The law, on this theory, generates value not by directly deterring bad behavior, but by supplying parties with the ability to retaliate when they are harmed. The paper explores the model's implications for understanding contracting and contract law.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"749"},"PeriodicalIF":1.9,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.173788","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67730909","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":"Twerski and Cohen's second revolution: a systems/strategic perspective.","authors":"L M LoPucki","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"55-75"},"PeriodicalIF":1.9,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22418674","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":"The second revolution in informed consent: comparing physicians to each other.","authors":"A D Twerski, N B Cohen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"1-54"},"PeriodicalIF":1.9,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22131281","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":"Regulating scientific research: intellectual property rights and the norms of science.","authors":"A K Rai","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":"77-152"},"PeriodicalIF":1.9,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22418675","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}
Jury nullification, an issue that has received much public attention, has been used loosely to describe verdicts with which members of the press and public disagree. One aim of this article is to explain what nullification is and to identify and describe three different situations in which nullification is likely to arise. Another aim is to offer two conceptions of the jury before assessing whether nullification is helpful or harmful to the judicial system. One conception, "a conventional view," largely held by judges, regards the jury as a fact-finding body and little more. My own conception, which I have labeled "a process view," envisions a much broader role for the jury, including interpretive and political functions. Under this broader view of the jury, nullification is not always harmful, as it is under the conventional view, but is even beneficial.
{"title":"The Myth of the Nullifying Jury","authors":"Nancy S. Marder","doi":"10.4324/9781315085401-6","DOIUrl":"https://doi.org/10.4324/9781315085401-6","url":null,"abstract":"Jury nullification, an issue that has received much public attention, has been used loosely to describe verdicts with which members of the press and public disagree. One aim of this article is to explain what nullification is and to identify and describe three different situations in which nullification is likely to arise. Another aim is to offer two conceptions of the jury before assessing whether nullification is helpful or harmful to the judicial system. One conception, \"a conventional view,\" largely held by judges, regards the jury as a fact-finding body and little more. My own conception, which I have labeled \"a process view,\" envisions a much broader role for the jury, including interpretive and political functions. Under this broader view of the jury, nullification is not always harmful, as it is under the conventional view, but is even beneficial.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"93 1","pages":"877"},"PeriodicalIF":1.9,"publicationDate":"1998-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70627471","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 reports the results of an examination of the effects of a decade's worth of D.C. Circuit remands of informal rules under the "hard look" doctrine. The research identified 71 such remands. Of those, 34 are characterized for a variety of reasons as having essentially no impact on the agency's ability to achieve its goals through the informal rulemaking process. The reasons include the court's explicit refusal to vacate the rule, the court's willingness to delay imposition of the mandate until the agency had recovered, and the insignificant nature of the remand itself. The author examined the aftermath of the remaining 37 remands to determine whether and to what extent the agency was able to recover. The results show that agencies usually succeed in achieving their regulatory goals through informal rulemaking. The author argues that these results challenge the ossification critique of hard look review, at least to the extent that the critique asserts that hard look review significantly interferes with agency pursuit of regulatory goals through informal rulemaking. He suggests that the real story of agency reliance upon informal rulemaking is one of substantial success despite hard look review, and that we should consider returning to a cooperative partnership model to characterize the agency-court relationship with respect to arbitrary and capricious review of agency rules.
{"title":"Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere With Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?","authors":"Jordan, S. William","doi":"10.2139/SSRN.140798","DOIUrl":"https://doi.org/10.2139/SSRN.140798","url":null,"abstract":"This article reports the results of an examination of the effects of a decade's worth of D.C. Circuit remands of informal rules under the \"hard look\" doctrine. The research identified 71 such remands. Of those, 34 are characterized for a variety of reasons as having essentially no impact on the agency's ability to achieve its goals through the informal rulemaking process. The reasons include the court's explicit refusal to vacate the rule, the court's willingness to delay imposition of the mandate until the agency had recovered, and the insignificant nature of the remand itself. The author examined the aftermath of the remaining 37 remands to determine whether and to what extent the agency was able to recover. The results show that agencies usually succeed in achieving their regulatory goals through informal rulemaking. The author argues that these results challenge the ossification critique of hard look review, at least to the extent that the critique asserts that hard look review significantly interferes with agency pursuit of regulatory goals through informal rulemaking. He suggests that the real story of agency reliance upon informal rulemaking is one of substantial success despite hard look review, and that we should consider returning to a cooperative partnership model to characterize the agency-court relationship with respect to arbitrary and capricious review of agency rules.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"94 1","pages":""},"PeriodicalIF":1.9,"publicationDate":"1998-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176739","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":"Tragic choices: state discretion over organ transplant funding for Medicaid recipients.","authors":"D L Weigert","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"89 ","pages":"268-317"},"PeriodicalIF":1.9,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25235190","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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