The optimal response to a financial crisis entails addressing two, often conflicting, demands: stopping the panic and starting the clock. When short-term depositors flee, banks can be forced to sell assets at fire-sale prices, causing credit to contract and real economic activity to decline. To reduce these adverse spillover effects, policymakers routinely intervene to stop systemic runs. All too often, however, policymakers deploy stopgap measures that allow the underlying problems to fester. To promote long-term economic health, they must also ferret out the underlying problems and allocate the losses that cannot be avoided. A well-designed guarantor of last resort can help address these conflicting demands. Just-in-time guarantees keep private capital in the system, providing policymakers the time that they need to develop a viable plan to address deficiencies. A strict time limit on those guarantees ensures that policymakers and market participants remain motivated to devise such a plan, avoiding the alternative pitfall of excessive forbearance.
{"title":"Guarantor of Last Resort","authors":"Kathryn Judge","doi":"10.2139/SSRN.3247265","DOIUrl":"https://doi.org/10.2139/SSRN.3247265","url":null,"abstract":"The optimal response to a financial crisis entails addressing two, often conflicting, demands: stopping the panic and starting the clock. When short-term depositors flee, banks can be forced to sell assets at fire-sale prices, causing credit to contract and real economic activity to decline. To reduce these adverse spillover effects, policymakers routinely intervene to stop systemic runs. All too often, however, policymakers deploy stopgap measures that allow the underlying problems to fester. To promote long-term economic health, they must also ferret out the underlying problems and allocate the losses that cannot be avoided. A well-designed guarantor of last resort can help address these conflicting demands. Just-in-time guarantees keep private capital in the system, providing policymakers the time that they need to develop a viable plan to address deficiencies. A strict time limit on those guarantees ensures that policymakers and market participants remain motivated to devise such a plan, avoiding the alternative pitfall of excessive forbearance.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"97 1","pages":"707"},"PeriodicalIF":1.6,"publicationDate":"2019-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48766577","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 phenomenon of nationwide injunctions — when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy — has spawned a vigorous debate. Scholars overwhelmingly reject this practice, arguing that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” This Article shows why these arguments are not persuasive. This piece offers one of the few defenses of nationwide injunctions and is grounded in a unique theory deriving from preclusion. A rich and nuanced preclusion jurisprudence has developed to answer the very question that the current debate raises: who should be bound by the results of litigation? Preclusion principles help explain why there are no constitutional or structural impediments to courts’ power to issue a nationwide injunction. These principles also reveal the circumstances under which such an injunction is (and is not) appropriate. Specifically, they suggest that while a nationwide injunction should not issue as a matter of course, it is permissible when the government acts in bad faith, including most notably when government officials fail to abide by settled law.
{"title":"Demystifying Nationwide Injunctions","authors":"Alan M. Trammell","doi":"10.2139/SSRN.3290838","DOIUrl":"https://doi.org/10.2139/SSRN.3290838","url":null,"abstract":"The phenomenon of nationwide injunctions — when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy — has spawned a vigorous debate. Scholars overwhelmingly reject this practice, arguing that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” This Article shows why these arguments are not persuasive. \u0000 \u0000This piece offers one of the few defenses of nationwide injunctions and is grounded in a unique theory deriving from preclusion. A rich and nuanced preclusion jurisprudence has developed to answer the very question that the current debate raises: who should be bound by the results of litigation? Preclusion principles help explain why there are no constitutional or structural impediments to courts’ power to issue a nationwide injunction. These principles also reveal the circumstances under which such an injunction is (and is not) appropriate. Specifically, they suggest that while a nationwide injunction should not issue as a matter of course, it is permissible when the government acts in bad faith, including most notably when government officials fail to abide by settled law.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.6,"publicationDate":"2018-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47358241","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}
Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, by Naomi Cahn, June Carbone, and Nancy Levit, offers a new account of the glass ceiling, connecting the phenomenon with shoddy corporate governance and rising income inequality in general. This Response asks some preliminary questions about the risks and rewards of Gender and the Tournament’s project for feminists. It concludes that feminists should take seriously the article’s call for a reinvigoration of disparate impact law, particularly considering the severe limitations of other Title VII theories in promoting sex equality in the workplace. Gender and the Tournament’s critical examination of the connections between destructive competition, growing income inequality, and women’s disadvantage in the workforce may have rewards for feminists in linking sex equality with progressive economic causes. But it also poses risks. This Response identifies two. First, the Article’s critique of the new economy’s tournament mentality may lack appeal for those men and women who love the competition and cannot envision a satisfactory way to restructure the labor market. Second, the argument that toxic competition is intrinsically gendered might be mistaken for the one that women are intrinsically uninterested in (and no good at) competition. This Response therefore urges feminists not to give up on challenging the double standards, double binds, and sex stereotypes that confront ambitious women, in addition to the disparate-impact strategies suggested by Gender and the Tournament.
{"title":"Feminism and the Tournament","authors":"Jessica A. Clarke","doi":"10.2139/SSRN.3180800","DOIUrl":"https://doi.org/10.2139/SSRN.3180800","url":null,"abstract":"Gender and the Tournament: Reinventing Antidiscrimination Law in the Age of Inequality, by Naomi Cahn, June Carbone, and Nancy Levit, offers a new account of the glass ceiling, connecting the phenomenon with shoddy corporate governance and rising income inequality in general. This Response asks some preliminary questions about the risks and rewards of Gender and the Tournament’s project for feminists. It concludes that feminists should take seriously the article’s call for a reinvigoration of disparate impact law, particularly considering the severe limitations of other Title VII theories in promoting sex equality in the workplace. Gender and the Tournament’s critical examination of the connections between destructive competition, growing income inequality, and women’s disadvantage in the workforce may have rewards for feminists in linking sex equality with progressive economic causes. But it also poses risks. This Response identifies two. First, the Article’s critique of the new economy’s tournament mentality may lack appeal for those men and women who love the competition and cannot envision a satisfactory way to restructure the labor market. Second, the argument that toxic competition is intrinsically gendered might be mistaken for the one that women are intrinsically uninterested in (and no good at) competition. This Response therefore urges feminists not to give up on challenging the double standards, double binds, and sex stereotypes that confront ambitious women, in addition to the disparate-impact strategies suggested by Gender and the Tournament.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"96 1","pages":"42"},"PeriodicalIF":1.6,"publicationDate":"2018-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46946203","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}
Law and economics scholars have long argued that efficiency is best served when a firm’s capital structure is arranged as a single hierarchical value waterfall. In such a regime, claimants with seniority are made whole before the next-junior stakeholders receive anything. To implement this single waterfall approach, those scholars envision a property-based mechanism: a blanket lien on all of a firm’s assets, and therefore all of its value (including as a going-concern). This view informs current proposals for contractual bankruptcy and relative priority. Coincident with this scholarship, lawyers, scholars, and judges have largely accepted at face value the proposition that Article 9 of the Uniform Commercial Code implements the single waterfall. In other words, they assume that the law allows a secured lender to write contracts that enable it to capture all of a distressed company’s going-concern value. This assumption has placed “senior” secured lenders firmly in the driver’s seat when a firm falls into distress. So-called “senior” creditors claim priority in all of the value, and control over all of the cash. They often advocate a quick sale of the firm as a going concern, or liquidation of its assets, followed by a structured dismissal of the case, giving all of the value to the secured lender. In this article, we illustrate that Article 9 does not, in fact, implement the single waterfall principle. Instead, both Article 9 and the federal Bankruptcy Code maintain a distinction between priority based on the firm’s assets and claims to the residual value of the firm. Whenever the firm continues in operation, there will be two value waterfalls – one tied to assets, and the other not. The second waterfall consists of the going-concern and other value of the firm Chapter 11 preserves. The key legal (often forgotten) concept that maintains this distinction is “equitable tracing” – required by both Article 9 and Chapter 11. The terms “equitable principles” in Article 9 and “equities of the case” in Chapter 11 refer to equitable tracing principles, that, in turn, inform secured creditors’ “fair and equitable” baseline entitlement in a Chapter 11 plan. On the petition date, the value of the firm is therefore divided into two categories: value traceable to encumbered assets; and, other value. This relationship must then be managed over time, as the value of the firm changes. Chapter 11, accordingly, treats realization of value as a two-step process that we call “Equitable Realization.” Equitable Realization uses tracing principles to allocate a firm’s value between asset-based and firm-based claimants and to preserve that allocation over time. First, it fixes the relative positions of secured and unsecured claims when a bankruptcy petition is filed. Second, it delays the fixing of the value of secured claims until collateral is sold or a Chapter 11 plan is confirmed. The value of the secured creditor’s collateral may increase, but the secured credito
{"title":"Tracing Equity: Realizing and Allocating Value in Chapter 11","authors":"M. Jacoby, E. Janger","doi":"10.2139/SSRN.3048336","DOIUrl":"https://doi.org/10.2139/SSRN.3048336","url":null,"abstract":"Law and economics scholars have long argued that efficiency is best served when a firm’s capital structure is arranged as a single hierarchical value waterfall. In such a regime, claimants with seniority are made whole before the next-junior stakeholders receive anything. To implement this single waterfall approach, those scholars envision a property-based mechanism: a blanket lien on all of a firm’s assets, and therefore all of its value (including as a going-concern). This view informs current proposals for contractual bankruptcy and relative priority. Coincident with this scholarship, lawyers, scholars, and judges have largely accepted at face value the proposition that Article 9 of the Uniform Commercial Code implements the single waterfall. In other words, they assume that the law allows a secured lender to write contracts that enable it to capture all of a distressed company’s going-concern value. This assumption has placed “senior” secured lenders firmly in the driver’s seat when a firm falls into distress. So-called “senior” creditors claim priority in all of the value, and control over all of the cash. They often advocate a quick sale of the firm as a going concern, or liquidation of its assets, followed by a structured dismissal of the case, giving all of the value to the secured lender. \u0000In this article, we illustrate that Article 9 does not, in fact, implement the single waterfall principle. Instead, both Article 9 and the federal Bankruptcy Code maintain a distinction between priority based on the firm’s assets and claims to the residual value of the firm. Whenever the firm continues in operation, there will be two value waterfalls – one tied to assets, and the other not. The second waterfall consists of the going-concern and other value of the firm Chapter 11 preserves. \u0000The key legal (often forgotten) concept that maintains this distinction is “equitable tracing” – required by both Article 9 and Chapter 11. The terms “equitable principles” in Article 9 and “equities of the case” in Chapter 11 refer to equitable tracing principles, that, in turn, inform secured creditors’ “fair and equitable” baseline entitlement in a Chapter 11 plan. On the petition date, the value of the firm is therefore divided into two categories: value traceable to encumbered assets; and, other value. This relationship must then be managed over time, as the value of the firm changes. \u0000Chapter 11, accordingly, treats realization of value as a two-step process that we call “Equitable Realization.” Equitable Realization uses tracing principles to allocate a firm’s value between asset-based and firm-based claimants and to preserve that allocation over time. First, it fixes the relative positions of secured and unsecured claims when a bankruptcy petition is filed. Second, it delays the fixing of the value of secured claims until collateral is sold or a Chapter 11 plan is confirmed. The value of the secured creditor’s collateral may increase, but the secured credito","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"96 1","pages":"673"},"PeriodicalIF":1.6,"publicationDate":"2018-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3048336","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44254615","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}
Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization. This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying. We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent prefere
{"title":"State Public-Law Litigation in an Age of Polarization","authors":"M. Lemos, E. A. Young","doi":"10.2139/SSRN.3137317","DOIUrl":"https://doi.org/10.2139/SSRN.3137317","url":null,"abstract":"Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization. \u0000This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying. \u0000We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent prefere","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"97 1","pages":"43"},"PeriodicalIF":1.6,"publicationDate":"2018-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3137317","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44073799","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}
IntroductionSovereignty is a funny thing. It is allegedly the foundation of the Westphalian order, but its exact contours are frustratingly indeterminate. When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by, among other things, hacking into the e-mail system of the Democratic National Committee (DNC) and releasing its e-mails, international lawyers were divided over whether the cyber attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of "established international norms of behavior" and pointedly declined to refer to the cyber attacks as a violation of international law.1Some international lawyers were more willing to describe the cyber attack as a violation of international law.2 However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps) shocking interference in the American political process-an intervention that nonlawyers would not hesitate to label a "violation of sovereignty" as that term is used in political or diplomatic discourse.3 The problem arises when one attempts to translate that commonsense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons.The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously apply to the facts in question. For example, the Russian interference could simply be viewed as an act of espionage, but it has long been understood (at least until recent controversies in human rights law) that spying violates domestic-but not international-law. An alternative rubric would focus on the intervention aspect of Russia's behavior. The problem here is that the standard-though by no means universally accepted-definition for what counts as an illegal intervention requires doctrinal elements such as coercion that may not be present in this case. So too with regard to the notion of an illegal "usurpation of an inherently governmental function,"4 a legal description that is a poor fit for Russia's hacking during the 2016 election, for reasons that will be more fully articulated below.That being said, it would be a mistake to hastily reject our commonsense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another State's sovereignty is simply an indication that the notions of "sovereignty" and "intervention"-though mainstays of contemporary public international law doctrine-are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements (a
{"title":"Did Russian Cyber Interference in the 2016 Election Violate International Law","authors":"J. Ohlin","doi":"10.31228/osf.io/3vuzf","DOIUrl":"https://doi.org/10.31228/osf.io/3vuzf","url":null,"abstract":"IntroductionSovereignty is a funny thing. It is allegedly the foundation of the Westphalian order, but its exact contours are frustratingly indeterminate. When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by, among other things, hacking into the e-mail system of the Democratic National Committee (DNC) and releasing its e-mails, international lawyers were divided over whether the cyber attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of \"established international norms of behavior\" and pointedly declined to refer to the cyber attacks as a violation of international law.1Some international lawyers were more willing to describe the cyber attack as a violation of international law.2 However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps) shocking interference in the American political process-an intervention that nonlawyers would not hesitate to label a \"violation of sovereignty\" as that term is used in political or diplomatic discourse.3 The problem arises when one attempts to translate that commonsense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons.The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously apply to the facts in question. For example, the Russian interference could simply be viewed as an act of espionage, but it has long been understood (at least until recent controversies in human rights law) that spying violates domestic-but not international-law. An alternative rubric would focus on the intervention aspect of Russia's behavior. The problem here is that the standard-though by no means universally accepted-definition for what counts as an illegal intervention requires doctrinal elements such as coercion that may not be present in this case. So too with regard to the notion of an illegal \"usurpation of an inherently governmental function,\"4 a legal description that is a poor fit for Russia's hacking during the 2016 election, for reasons that will be more fully articulated below.That being said, it would be a mistake to hastily reject our commonsense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another State's sovereignty is simply an indication that the notions of \"sovereignty\" and \"intervention\"-though mainstays of contemporary public international law doctrine-are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements (a","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"95 1","pages":"1579"},"PeriodicalIF":1.6,"publicationDate":"2017-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43110438","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}
Kent Greenawalt, Defender of the Faith Exemptions: Necessary, Justified, or Misguided? By Kent Greenawalt. Cambridge, Massachusetts: Harvard University Press, 2016. 288 pages. $49.95.IntroductionNot long ago almost everybody loved the idea of exempting religious objectors from generally applicable laws. In 1993, after the Supreme Court, abandoning a decades-old rule, noted that exemptions weren't constitutionally required,1 Congress was nearly unanimous in reversing that result by statute.2Two controversies have splintered that coalition. The 1993 law, the Religious Freedom Restoration Act (RFRA), has been deployed to challenge the so-called "contraception mandate," which requires employee and student health insurance plans to cover the costs of most forms of contraception.3 Litigants have sought, and some state legislatures have attempted to provide, religious exemptions from laws banning discrimination on the basis of sexual orientation.4More fundamental than either of these flashpoints is a growing sense that it is unfair to single out religion in this way-that religion is not distinctive enough to deserve special treatment by the law.5So Kent Greenawalt's defense of exemptions is well timed. For many years, Greenawalt has been a giant in the field of law and religion. His twovolume treatise, Religion and the Constitution,6 is the most comprehensive treatment of the law of the religion clauses. This new book takes on the specific issue of exemptions in shorter compass, centered on these newer controversies that have arisen since the earlier volumes were published. He has an easy mastery of this complex area. He writes beautifully.The book is a careful defense of exemptions against the new challenges. It does not offer any general theory of exemptions, instead focusing closely on the details of specific types of situations. The general lesson is that "no sensible person can suggest that all claims of exemption should be granted or refused."7The book ranges over a wide range of issues, though it is not quite as comprehensive as the first volume of his treatise.8 Its aim is "to explore the complexity of many concerns about exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight."9 Greenawalt selects his cases with that in mind.10A large literature of general theories of religious accommodation is on offer.11 He resists them all.No single theory covers everything; multiple reasons typically support a practice and carry varying weights in different contexts. This reality applies to many particular issues about government concessions not to perform general duties. Once this is recognized, people should not expect matters to reduce to a single justification that clearly warrants some exemptions and does not warrant others . . . .12If the book has a general thesis, it is that exemptions should not be rejected wholesale.Exempti
Kent Greenawalt，信仰豁免的捍卫者：必要的、正当的还是误导的？Kent Greenawalt著。马萨诸塞州剑桥：哈佛大学出版社，2016年。288页$49.95.引言不久前，几乎每个人都喜欢豁免宗教反对者遵守普遍适用法律的想法。1993年，最高法院放弃了一项已有数十年历史的规则，指出宪法不要求豁免，1国会几乎一致通过法律推翻了这一结果。2两个争议使该联盟分裂。1993年的《宗教自由恢复法》（RFRA）旨在挑战所谓的“避孕强制令”，该强制令要求员工和学生的健康保险计划支付大多数避孕形式的费用，禁止基于性取向的歧视的法律中的宗教豁免。4比这两个热点更根本的是，人们越来越意识到，以这种方式单独挑出宗教是不公平的，因为宗教不够独特，不值得法律给予特殊待遇。5因此，Kent Greenawalt对豁免的辩护恰逢其时。多年来，格里纳沃特一直是法律和宗教领域的巨人。他的两卷本专著《宗教与宪法》6是对宗教法条款最全面的论述。这本新书在较短的范围内探讨了豁免的具体问题，集中在自前几卷出版以来出现的这些新争议上。他轻而易举地掌握了这个复杂的领域。他写得很漂亮。这本书谨慎地为豁免辩护，以应对新的挑战。它没有提供任何豁免的一般理论，而是密切关注特定类型情况的细节。一般的教训是，“任何明智的人都不能建议批准或拒绝所有豁免申请。”7这本书涵盖了广泛的问题，尽管它没有他的论文第一卷那么全面。8它的目的是“探索许多关于豁免的担忧的复杂性，并含蓄地鼓励那些处于特定争议对立双方的人认识到，甚至承认，相互竞争的考虑确实有一定的分量。”。“9 Greenawalt在选择自己的案例时考虑到了这一点。10有大量关于宗教通融的一般理论文献。11他拒绝所有这些理论。没有一个单一的理论涵盖一切；多种原因通常支持一种做法，并在不同的背景下具有不同的分量。这一现实适用于许多关于政府不履行一般职责的让步的特定问题人们不应该期望事情变成一个单一的理由，明确地保证某些豁免，而不保证其他豁免。12如果这本书有一个一般性的论点，那就是豁免不应该被全盘拒绝。然而，对于许多人心中的更广泛的问题，豁免是故意无益的。为什么把宗教单独列为特殊待遇是公平的？如果立法机构或法院要临时制定豁免，他们应该遵循什么样的一般原则？为当代辩论量身定制的干预措施应该解决这些问题，这些问题已经变得如此突出。特殊待遇的总体模式产生了一种不公平感。即使细节可以清楚地累积起来，对豁免的辩护也需要说明累积的金额。因此，这本书是对豁免的重要但不完整的辩护。本评论将对Greenawalt所说的缺失原则进行说明。任何关于宗教的有价值的东西都是法律无法直接检测到的。人们彼此之间太不透明，国家无法评估每个人的依恋价值…
{"title":"Kent Greenawalt, Defender of the Faith","authors":"A. Koppelman","doi":"10.2139/SSRN.2911915","DOIUrl":"https://doi.org/10.2139/SSRN.2911915","url":null,"abstract":"Kent Greenawalt, Defender of the Faith Exemptions: Necessary, Justified, or Misguided? By Kent Greenawalt. Cambridge, Massachusetts: Harvard University Press, 2016. 288 pages. $49.95.IntroductionNot long ago almost everybody loved the idea of exempting religious objectors from generally applicable laws. In 1993, after the Supreme Court, abandoning a decades-old rule, noted that exemptions weren't constitutionally required,1 Congress was nearly unanimous in reversing that result by statute.2Two controversies have splintered that coalition. The 1993 law, the Religious Freedom Restoration Act (RFRA), has been deployed to challenge the so-called \"contraception mandate,\" which requires employee and student health insurance plans to cover the costs of most forms of contraception.3 Litigants have sought, and some state legislatures have attempted to provide, religious exemptions from laws banning discrimination on the basis of sexual orientation.4More fundamental than either of these flashpoints is a growing sense that it is unfair to single out religion in this way-that religion is not distinctive enough to deserve special treatment by the law.5So Kent Greenawalt's defense of exemptions is well timed. For many years, Greenawalt has been a giant in the field of law and religion. His twovolume treatise, Religion and the Constitution,6 is the most comprehensive treatment of the law of the religion clauses. This new book takes on the specific issue of exemptions in shorter compass, centered on these newer controversies that have arisen since the earlier volumes were published. He has an easy mastery of this complex area. He writes beautifully.The book is a careful defense of exemptions against the new challenges. It does not offer any general theory of exemptions, instead focusing closely on the details of specific types of situations. The general lesson is that \"no sensible person can suggest that all claims of exemption should be granted or refused.\"7The book ranges over a wide range of issues, though it is not quite as comprehensive as the first volume of his treatise.8 Its aim is \"to explore the complexity of many concerns about exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight.\"9 Greenawalt selects his cases with that in mind.10A large literature of general theories of religious accommodation is on offer.11 He resists them all.No single theory covers everything; multiple reasons typically support a practice and carry varying weights in different contexts. This reality applies to many particular issues about government concessions not to perform general duties. Once this is recognized, people should not expect matters to reduce to a single justification that clearly warrants some exemptions and does not warrant others . . . .12If the book has a general thesis, it is that exemptions should not be rejected wholesale.Exempti","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"95 1","pages":"821"},"PeriodicalIF":1.6,"publicationDate":"2017-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44848325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated — albeit incompletely — the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property — a phenomenon we call “Indian appropriation.” It then evaluates these claims vis-a-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.
{"title":"Owning Red: A Theory of Indian (Cultural) Appropriation","authors":"A. Riley, Kristen A. Carpenter","doi":"10.31228/osf.io/zbnuc","DOIUrl":"https://doi.org/10.31228/osf.io/zbnuc","url":null,"abstract":"In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated — albeit incompletely — the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property — a phenomenon we call “Indian appropriation.” It then evaluates these claims vis-a-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"49 1","pages":"859"},"PeriodicalIF":1.6,"publicationDate":"2015-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641196","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 role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora’s Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts’ review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency’s (EPA’s) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts’ review of scientific challenges to the EPA’s NAAQS over time that tracked the Agency’s own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts’ own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.
{"title":"Rethinking Judicial Review of Expert Agencies","authors":"E. Fisher, Pasky Pascual, W. Wagner","doi":"10.15781/T2267D","DOIUrl":"https://doi.org/10.15781/T2267D","url":null,"abstract":"The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora’s Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts’ review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency’s (EPA’s) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts’ review of scientific challenges to the EPA’s NAAQS over time that tracked the Agency’s own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts’ own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"93 1","pages":"1681-1721"},"PeriodicalIF":1.6,"publicationDate":"2015-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67096882","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 central themes in Brinig and Garnett’s Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America distill as easily as they haunt. Well-understood is that the United States needs to improve the quality of education as well as its equitable distribution across various sub-classes of students. Paradoxically, students most in need of high-quality education services — including minority students, particularly those from low-income households in urban areas — are more likely assigned to under-performing public schools. Historically, the nation’s Catholic schools provided urban students, including many minority students from low-income households, with more efficacious yet less expensive educational services than their urban public school counterparts. Brinig and Garnett’s book identifies and discusses an especially lethal interaction of an array of key trends: While the need for high-quality, low-cost education services continues its ascent, Catholic school closures accelerate and, in so doing, threaten efforts to help improve the urban education landscape. To make matters even worse, as Brinig and Garnett also argue, the consequences of Catholic school closures extend beyond the education realm and degrade the stability of urban communities. Brinig and Garnett’s work on this topic is important as the policy issues remain timely and novel, and they enlist data and empirical methods into their analyses. As a result, Brinig and Garnett’s book is not only important for what it says but also how it says it.
{"title":"Lost Ground: Catholic Schools, the Future of Urban School Reform, and Empirical Legal Scholarship","authors":"Michael Heise","doi":"10.2139/ssrn.2554048","DOIUrl":"https://doi.org/10.2139/ssrn.2554048","url":null,"abstract":"The central themes in Brinig and Garnett’s Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America distill as easily as they haunt. Well-understood is that the United States needs to improve the quality of education as well as its equitable distribution across various sub-classes of students. Paradoxically, students most in need of high-quality education services — including minority students, particularly those from low-income households in urban areas — are more likely assigned to under-performing public schools. Historically, the nation’s Catholic schools provided urban students, including many minority students from low-income households, with more efficacious yet less expensive educational services than their urban public school counterparts. Brinig and Garnett’s book identifies and discusses an especially lethal interaction of an array of key trends: While the need for high-quality, low-cost education services continues its ascent, Catholic school closures accelerate and, in so doing, threaten efforts to help improve the urban education landscape. To make matters even worse, as Brinig and Garnett also argue, the consequences of Catholic school closures extend beyond the education realm and degrade the stability of urban communities. Brinig and Garnett’s work on this topic is important as the policy issues remain timely and novel, and they enlist data and empirical methods into their analyses. As a result, Brinig and Garnett’s book is not only important for what it says but also how it says it.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"93 1","pages":"1499"},"PeriodicalIF":1.6,"publicationDate":"2015-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68201363","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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