American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.
{"title":"Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice","authors":"James Q. Whitman","doi":"10.2139/SSRN.2587092","DOIUrl":"https://doi.org/10.2139/SSRN.2587092","url":null,"abstract":"American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"94 1","pages":"933"},"PeriodicalIF":1.6,"publicationDate":"2015-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68213991","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}
Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.
{"title":"Institutional Flip-Flops","authors":"E. Posner, C. Sunstein","doi":"10.2139/SSRN.2553285","DOIUrl":"https://doi.org/10.2139/SSRN.2553285","url":null,"abstract":"Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"94 1","pages":"485"},"PeriodicalIF":1.6,"publicationDate":"2015-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2553285","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68201075","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}
Corey Brettschneider, Corey Brettschneider, Dave McNamee, Dave McNamee
Sovereign immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular sovereignty and democratic self-rule. It is hardly surprising, then, that sovereign immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions — to revisit the fundamental question of sovereignty in a democracy. In this paper, we aim to reconcile the doctrine of sovereign immunity with the Constitution’s core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic sovereign. This includes the authority to make what we will call “sovereign mistakes.” For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the sovereign power of the purse. But a necessary condition for democratic legitimacy is that the sovereign must respect citizens’ fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic sovereign, and it does not enjoy immunity from suit. The mantle of democratic sovereignty passes to the citizen-plaintiff, instead. Part I considers and rejects the all-or-nothing approaches to sovereign immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of sovereign immunity to breathe new life into the doctrine — providing a normative justification for immunity where it lies while also carving out its limits.
{"title":"Sovereign and State: A Democratic Theory of Sovereign Immunity","authors":"Corey Brettschneider, Corey Brettschneider, Dave McNamee, Dave McNamee","doi":"10.2139/SSRN.2387666","DOIUrl":"https://doi.org/10.2139/SSRN.2387666","url":null,"abstract":"Sovereign immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular sovereignty and democratic self-rule. It is hardly surprising, then, that sovereign immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions — to revisit the fundamental question of sovereignty in a democracy. In this paper, we aim to reconcile the doctrine of sovereign immunity with the Constitution’s core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic sovereign. This includes the authority to make what we will call “sovereign mistakes.” For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the sovereign power of the purse. But a necessary condition for democratic legitimacy is that the sovereign must respect citizens’ fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic sovereign, and it does not enjoy immunity from suit. The mantle of democratic sovereignty passes to the citizen-plaintiff, instead. Part I considers and rejects the all-or-nothing approaches to sovereign immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of sovereign immunity to breathe new life into the doctrine — providing a normative justification for immunity where it lies while also carving out its limits.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"93 1","pages":"1229"},"PeriodicalIF":1.6,"publicationDate":"2014-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2387666","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168356","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 reviews two volumes that emphasize the role of inter-branch dialogue as a way of fulfilling the original constitutional design regarding the deployment of military force: Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority and Stephen M. Griffin’s Long Wars and the Constitution. Both authors argue that the robustness of deliberations between Congress and the President, rather than the legality of military intervention per-se, ought to be the focus of the public’s concern with regard to war making. The Zeisberg and Griffin volumes tackle the problem of constructing constitutional meaning for a critical aspect of the government’s founding document—its allocation of war authorities—that generally escapes judicial interpretation and enforcement. This article argues that both books are too quick to dismiss law as a significant force for the very kind of institutional behavior they so urgently seek. Because Congress and the Executive are routinely involved in the production, review, and application of law—even when their interpretations are unlikely to be reviewed in court—they consequently do and should think of themselves as obligated to frame within a principled legal framework their deliberations over the exercise of government power, and this legal framing is critical to understanding the institutional dynamics and substantive outcomes that attend such deliberations. Further, this article questions whether these legally informed inter-branch negotiation practices can be institutionalized.
{"title":"Constitutionalism and War Making","authors":"P. Shane","doi":"10.31228/osf.io/a5pjv","DOIUrl":"https://doi.org/10.31228/osf.io/a5pjv","url":null,"abstract":"This article reviews two volumes that emphasize the role of inter-branch dialogue as a way of fulfilling the original constitutional design regarding the deployment of military force: Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority and Stephen M. Griffin’s Long Wars and the Constitution. Both authors argue that the robustness of deliberations between Congress and the President, rather than the legality of military intervention per-se, ought to be the focus of the public’s concern with regard to war making. The Zeisberg and Griffin volumes tackle the problem of constructing constitutional meaning for a critical aspect of the government’s founding document—its allocation of war authorities—that generally escapes judicial interpretation and enforcement. This article argues that both books are too quick to dismiss law as a significant force for the very kind of institutional behavior they so urgently seek. Because Congress and the Executive are routinely involved in the production, review, and application of law—even when their interpretations are unlikely to be reviewed in court—they consequently do and should think of themselves as obligated to frame within a principled legal framework their deliberations over the exercise of government power, and this legal framing is critical to understanding the institutional dynamics and substantive outcomes that attend such deliberations. Further, this article questions whether these legally informed inter-branch negotiation practices can be institutionalized.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"92 1","pages":"689"},"PeriodicalIF":1.6,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639608","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}
“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.
{"title":"Antislavery Women and the Origins of American Jurisprudence","authors":"A. Brophy","doi":"10.2139/SSRN.2635248","DOIUrl":"https://doi.org/10.2139/SSRN.2635248","url":null,"abstract":"“Antislavery Women and the Origins of American Jurisprudence\" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"94 1","pages":"115"},"PeriodicalIF":1.6,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68233877","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 termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President — and the lawyers who advise them — have generally treated this issue as a matter of constitutional law, rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings, but also how these understandings can change. Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination. This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction. An examination of the way in which historical practice has shaped the constitutional debates and understandings concerning this issue can help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.
{"title":"Treaty Termination and Historical Gloss","authors":"C. Bradley","doi":"10.2139/SSRN.2308004","DOIUrl":"https://doi.org/10.2139/SSRN.2308004","url":null,"abstract":"The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President — and the lawyers who advise them — have generally treated this issue as a matter of constitutional law, rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings, but also how these understandings can change. Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination. This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction. An examination of the way in which historical practice has shaped the constitutional debates and understandings concerning this issue can help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"92 1","pages":"773"},"PeriodicalIF":1.6,"publicationDate":"2013-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68084460","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}
Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account. In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification. We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.
{"title":"The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap","authors":"James E. Pfander, N. Nazemi","doi":"10.2139/SSRN.2268770","DOIUrl":"https://doi.org/10.2139/SSRN.2268770","url":null,"abstract":"Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account. In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification. We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"92 1","pages":"1-73"},"PeriodicalIF":1.6,"publicationDate":"2013-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68047492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-03-01DOI: 10.5040/9781472547774.ch-008
K. Anderson
Time Out of Joint WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. By Mary L. Dudziak. New York, New York: Oxford University Press, 2012. 221 pages. $24.95.The eminent legal historian Mary L. Dudziak has written a book on the meaning of time in war. The separation of the words as found in the title, War and Time, appears to be deliberate.1 Dudziak's essay proposes to isolate and identify the effects of time as it passes during war-particularly when it is a long and indefinite time-upon a society and ultimately upon a culture. Time in the course of war is, in this telling, both jaws and tail of the dragon. It is both cause and effect, within and upon culture and society.2This plays out in a special way for Americans, however. The American cultural conception of "time" in "war" seeks to confine war to a presumably temporary emergency.3 Policies that would otherwise be legally, politically, socially, and culturally unacceptable-encroachments upon civil rights and liberties, most prominently, but also encroachments upon property rights, and regulatory changes of many kinds from taxation to price controls-become accepted as legitimate, extraordinary measures "for the duration." An uncertain duration, perhaps, but a duration nonetheless assumed in a culturally deep way to be temporary.4 The legitimacy of these war measures is accepted not just because they are claimed to be "necessary" in exceptional circumstances. They are also accepted because-independently-American cultural assumptions about the nature of war define them as not merely necessary exceptions, but as temporally confined.5 War in the American historical imagination is temporary.6Necessity in war, then, is the hard master pressing exceptional measures upon society.7 Time, and the assumed temporary nature of war as a state of exception, however, soothes their acceptance and helps establish their legitimacy by contrasting them with "normal" times.8 Peace is defined as normality; it is defined as "normal" time.9 And yet the rub: the passage of time in war, when it goes on and on (and particularly when it goes on without discernible end or even a way to define an end) tends to harden effects that were supposed to be temporary, confined to the emergency of war, into permanent changes in society and culture.10 Time in war-the passage of time in war-is an independent social cause with its own social and cultural effects. We should therefore not be comforted quite so much as Americans are by the culturally reinforced belief that war, or at any rate, war's effects upon the ordinary life of peacetime, is temporary.In war, Dudziak writes, "regular time" is thought to be "interrupted, and time is out of order." 11 The distinction between time "out of order," established by the social condition of war, and regular time, leads to the category of "wartime," which functions as both a passive historical descriptor and a causal cultural actor.12 If the book's title initially deliberately separates the two
联合战争时期之外的时间:一个想法，它的历史，它的后果。玛丽·l·杜济亚克著。纽约:牛津大学出版社，2012。221页。24.95美元。著名的法律历史学家Mary L. Dudziak写了一本关于战争中时间意义的书。从书名《战争与时间》中可以看出，这两个词的分离似乎是有意为之杜齐亚克的文章提出孤立并确定战争期间时间流逝的影响——特别是当战争持续时间很长且不确定时——对一个社会，最终对一种文化的影响。在这个故事中，战争中的时间是龙的下巴和尾巴。它既是文化和社会内部的原因，也是文化和社会之上的结果。然而，这对美国人来说却有一种特殊的影响。美国文化对“战争”中的“时间”概念试图将战争限定为一种可能是暂时的紧急状态那些在法律上、政治上、社会上和文化上都无法被接受的政策——最显著的是侵犯公民权利和自由，但也包括侵犯财产权，以及从税收到价格控制等多种监管变化——都被视为合法的、“暂时”的特殊措施而被接受。也许是一个不确定的持续时间，但从文化的深度角度来看，这个持续时间被认为是暂时的这些战争措施的合法性之所以被接受，不仅仅是因为它们被认为是在特殊情况下“必要的”。它们被接受的另一个原因是——独立地——美国文化对战争本质的假设把它们定义为不仅是必要的例外，而且是暂时的限制在美国人的历史想象中，战争是暂时的。因此，战争的必要性是对社会施加特殊措施的严厉的主人然而，时间，以及战争作为一种例外状态的假定的暂时性质，缓和了人们对它们的接受，并通过将它们与“正常”时期进行对比，帮助确立了它们的合法性和平被定义为常态;它被定义为“正常”时间然而，问题是:战争中时间的流逝，当战争持续不断时(特别是当战争没有明显的结束，甚至没有办法定义结束的时候)，往往会使本应是暂时的、仅限于战争紧急情况的影响，变成社会和文化的永久变化战争中的时间——战争中的时间流逝——是一个独立的社会原因，有其自身的社会和文化影响。因此，我们不应该像美国人那样，因为文化上强化了一种信念，即战争，或者至少是战争对和平时期普通生活的影响是暂时的，而感到宽慰。杜齐亚克写道，在战争中，“正常时间”被认为是“中断的，时间失去了秩序”。由战争的社会条件所建立的“无序”时间与正常时间之间的区别，导致了“战时”的范畴，它既是被动的历史描述者，也是因果文化行动者如果这本书的标题一开始就有意将这两个类别分开，这是为了看到它们随后在文本中的组合表明了一个独特的社会类别，一个由战争事实和社会对时间的看法建立起来的社会类别，它对社会有独立的影响。杜齐亚克指出，在大的历史层面上，战争将“人类的经历划分为不同的时代，创造了一个之前和一个之后”——例如，内战前和战后的美国内战，或者二战后的“战后”。然而，战争不仅仅是一种描述历史分期的方式——一系列方便的前后路标——它还起着“抽象的历史角色，推动和改变社会，创造特殊的治理条件”的作用。《战争时期》是一本优秀的书，在文化批判和思想史方面进行了雄心勃勃的尝试。文化批评的类型通常以使用文化材料为特征，这些文化材料的范围跨越文学和艺术，高级和流行文化，提供和解释文化的比喻，以揭示对文化和社会的一些更深层次的看法。…
{"title":"Time out of Joint","authors":"K. Anderson","doi":"10.5040/9781472547774.ch-008","DOIUrl":"https://doi.org/10.5040/9781472547774.ch-008","url":null,"abstract":"Time Out of Joint WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. By Mary L. Dudziak. New York, New York: Oxford University Press, 2012. 221 pages. $24.95.The eminent legal historian Mary L. Dudziak has written a book on the meaning of time in war. The separation of the words as found in the title, War and Time, appears to be deliberate.1 Dudziak's essay proposes to isolate and identify the effects of time as it passes during war-particularly when it is a long and indefinite time-upon a society and ultimately upon a culture. Time in the course of war is, in this telling, both jaws and tail of the dragon. It is both cause and effect, within and upon culture and society.2This plays out in a special way for Americans, however. The American cultural conception of \"time\" in \"war\" seeks to confine war to a presumably temporary emergency.3 Policies that would otherwise be legally, politically, socially, and culturally unacceptable-encroachments upon civil rights and liberties, most prominently, but also encroachments upon property rights, and regulatory changes of many kinds from taxation to price controls-become accepted as legitimate, extraordinary measures \"for the duration.\" An uncertain duration, perhaps, but a duration nonetheless assumed in a culturally deep way to be temporary.4 The legitimacy of these war measures is accepted not just because they are claimed to be \"necessary\" in exceptional circumstances. They are also accepted because-independently-American cultural assumptions about the nature of war define them as not merely necessary exceptions, but as temporally confined.5 War in the American historical imagination is temporary.6Necessity in war, then, is the hard master pressing exceptional measures upon society.7 Time, and the assumed temporary nature of war as a state of exception, however, soothes their acceptance and helps establish their legitimacy by contrasting them with \"normal\" times.8 Peace is defined as normality; it is defined as \"normal\" time.9 And yet the rub: the passage of time in war, when it goes on and on (and particularly when it goes on without discernible end or even a way to define an end) tends to harden effects that were supposed to be temporary, confined to the emergency of war, into permanent changes in society and culture.10 Time in war-the passage of time in war-is an independent social cause with its own social and cultural effects. We should therefore not be comforted quite so much as Americans are by the culturally reinforced belief that war, or at any rate, war's effects upon the ordinary life of peacetime, is temporary.In war, Dudziak writes, \"regular time\" is thought to be \"interrupted, and time is out of order.\" 11 The distinction between time \"out of order,\" established by the social condition of war, and regular time, leads to the category of \"wartime,\" which functions as both a passive historical descriptor and a causal cultural actor.12 If the book's title initially deliberately separates the two","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"35 1","pages":"859"},"PeriodicalIF":1.6,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70511449","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}
IntroductionAccording to her congressional testimony, when Jamie Leigh Jones arrived in Baghdad to work for Halliburton, she was housed in a barracks with four hundred male coworkers1 and was almost immediately sexually harassed.2 When she complained to managers, she was told to "go to the spa."3 The very next evening, she was "drugged, beaten, and gang-raped by several [Halliburton] employees."4 After the incident, Halliburton kept her in a container under armed guard.5 When she finally returned to the United States, Jones was initially denied her day in court because her employment contract included an arbitration clause.6 Although the jury found against Ms. Jones in her civil trial,7 her story and a recent Supreme Court decision8 have cast the public spotlight on arbitration, and arbitration is under siege.9 At the center of the controversy is a fundamental question that has divided scholars for the past decade: Should arbitration clauses in employment and consumer contracts be enforced despite the risk of unequal bargaining?10Scholars have mostly divided into two camps on this complicated question.11 In one camp, supporters of binding arbitration argue that the problem of unfair bargaining is overstated, and that arbitration has significant benefits for employees and consumers that increase overall social welfare.12 The other camp opposes the enforcement of binding arbitration agreements, pointing to the Jones case and other arbitration horror stories that demonstrate that binding arbitration for consumers and employees can lead to disastrous and inequitable results.13 After Jones and Concepcion, this academic debate has spilled over into the political arena with potentially meaningful and lasting consequences. And (as is often the case) the entry into the political debate has done little to moderate either camp; if anything, it has crystalized and polarized the sides further.14In addition to the divide in the scholarship, a divide has emerged between two branches of government. The Supreme Court has expanded the enforcement of arbitration clauses, under increasingly broad interpretations of the Federal Arbitration Act. As a result of decisions like ATT however, consumer and employment arbitration must be seriously reformed. The reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.The main thrust of this Note is to propose meaningful reform that balances the competing social interests. This Note argues three main points. First, arbitration clauses in employment and consumer contracts are not per se the problem-the real problem is unfair arbitration as a result of inadequate procedural guarantees that result from disparities not only in bargaining power (as other scholars have argued), but in access to information about disputes (commonly formulated as a "repeat-player problem")16 that causes procedural dif
{"title":"Arbitration under Siege: Reforming Consumer and Employment Arbitration and Class Actions*","authors":"George M. Padis","doi":"10.2139/ssrn.2147605","DOIUrl":"https://doi.org/10.2139/ssrn.2147605","url":null,"abstract":"IntroductionAccording to her congressional testimony, when Jamie Leigh Jones arrived in Baghdad to work for Halliburton, she was housed in a barracks with four hundred male coworkers1 and was almost immediately sexually harassed.2 When she complained to managers, she was told to \"go to the spa.\"3 The very next evening, she was \"drugged, beaten, and gang-raped by several [Halliburton] employees.\"4 After the incident, Halliburton kept her in a container under armed guard.5 When she finally returned to the United States, Jones was initially denied her day in court because her employment contract included an arbitration clause.6 Although the jury found against Ms. Jones in her civil trial,7 her story and a recent Supreme Court decision8 have cast the public spotlight on arbitration, and arbitration is under siege.9 At the center of the controversy is a fundamental question that has divided scholars for the past decade: Should arbitration clauses in employment and consumer contracts be enforced despite the risk of unequal bargaining?10Scholars have mostly divided into two camps on this complicated question.11 In one camp, supporters of binding arbitration argue that the problem of unfair bargaining is overstated, and that arbitration has significant benefits for employees and consumers that increase overall social welfare.12 The other camp opposes the enforcement of binding arbitration agreements, pointing to the Jones case and other arbitration horror stories that demonstrate that binding arbitration for consumers and employees can lead to disastrous and inequitable results.13 After Jones and Concepcion, this academic debate has spilled over into the political arena with potentially meaningful and lasting consequences. And (as is often the case) the entry into the political debate has done little to moderate either camp; if anything, it has crystalized and polarized the sides further.14In addition to the divide in the scholarship, a divide has emerged between two branches of government. The Supreme Court has expanded the enforcement of arbitration clauses, under increasingly broad interpretations of the Federal Arbitration Act. As a result of decisions like ATT however, consumer and employment arbitration must be seriously reformed. The reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.The main thrust of this Note is to propose meaningful reform that balances the competing social interests. This Note argues three main points. First, arbitration clauses in employment and consumer contracts are not per se the problem-the real problem is unfair arbitration as a result of inadequate procedural guarantees that result from disparities not only in bargaining power (as other scholars have argued), but in access to information about disputes (commonly formulated as a \"repeat-player problem\")16 that causes procedural dif","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"665"},"PeriodicalIF":1.6,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67950049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.This Article aspires to help theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. In turn, it suggests an interpretive method that defies both orthodox textualism and purposivism in that it may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of purpose or equity. Such a model accounts for state court practice at the intersection of statutes and common law that recent work on state court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts at the intersection of statutes and pockets of federal common law.The framework this Article constructs to approach the common law question can also help organize the fledgling field of state–federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor — an advance that can aid state and federal jurisprudence alike.
{"title":"Statutes in Common Law Courts","authors":"Jeffrey A. Pojanowski","doi":"10.2139/ssrn.2023527","DOIUrl":"https://doi.org/10.2139/ssrn.2023527","url":null,"abstract":"The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in the theory of statutory interpretation. While debate about federal statutory interpretation has settled into a holding pattern, scholars have begun to consider whether state courts should interpret statutes differently than federal courts and, if so, the implications of that fact for federal and general interpretation.This Article aspires to help theorize this emerging field as a whole while making progress on one of its most important parts, namely the question of the difference that common law powers make to statutory interpretation. This inquiry takes us beyond the familiar moves in federal debates on interpretation. In turn, it suggests an interpretive method that defies both orthodox textualism and purposivism in that it may permit courts to extend statutory rules and principles by analogy while prohibiting courts from narrowing the scope of statutes in the name of purpose or equity. Such a model accounts for state court practice at the intersection of statutes and common law that recent work on state court textualism neither confronts nor explains. This model also informs federal theorization, both by challenging received wisdom about the relationship between common law and statutes and by offering guidance to federal courts at the intersection of statutes and pockets of federal common law.The framework this Article constructs to approach the common law question can also help organize the fledgling field of state–federal comparison more generally. With this framework, we can begin to sort out the conflicting and overlapping strands of argument already in the literature while also having a template for future inquiries. At the same time, this framework can help us think about intersystemic interpretation with greater rigor — an advance that can aid state and federal jurisprudence alike.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"479"},"PeriodicalIF":1.6,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67862321","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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