Pub Date : 2013-01-01DOI: 10.1093/acprof:oso/9780199793372.003.0001
J. Fleming
In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things — in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called “constructivist.” I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we — self-styled originalists no less than the rest of us — always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend — in the name of originalism — that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to ab
{"title":"Are We All Originalists Now? I Hope Not!","authors":"J. Fleming","doi":"10.1093/acprof:oso/9780199793372.003.0001","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199793372.003.0001","url":null,"abstract":"In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things — in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called “constructivist.” I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we — self-styled originalists no less than the rest of us — always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend — in the name of originalism — that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to ab","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"1785"},"PeriodicalIF":1.6,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60653556","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}
Courts and commentators are sharply divided about how to assess “reverse payment” patent settlements under antitrust law. The essential problem is that a PTO-issued patent provides only a probabilistic indication that courts would hold that the patent is actually valid and infringed, and parties have incentives to structure reverse payment settlements to exclude entry for longer than this patent probability would merit. Some favor comparing the settlement exclusion period to the expected litigation exclusion period, but this requires difficult case-by-case assessments of the probabilities of patent victory. Others instead favor a formal “scope of the patent” test that allows such settlements for nonsham patents if the settlement does not delay entry beyond the patent term, preclude noninfringing products, or delay nonsettling entrants. However, the formal scope of the patent test excludes entry for longer than merited by the patent strength, and it provides no solution when there is either a significant dispute about infringement or a bottleneck issue delaying other entrants. This Article provides a way out of this dilemma. It proves that when the reverse payment amount exceeds the patent holder’s anticipated litigation costs, then under standard conditions the settlement will, according to the patent holder’s own probability estimate, exclude entry for longer than both the expected litigation exclusion period and the optimal patent exclusion period, and thus will both harm consumer welfare and undermine optimal innovation incentives. Further, whenever a reverse payment is necessary for settlement, it will also have those same anticompetitive effects according to the entrant’s probability estimate. This proof thus provides an easily administrable way to determine when a reverse payment settlement is necessarily anticompetitive, without requiring any probabilistic inquiry into the patent merits. We also show that, contrary to conventional wisdom, patent settlements without any reverse payment usually (but not always) exceed both the expected litigation exclusion period and the optimal patent exclusion period, and we suggest a procedural solution to resolve such cases.
{"title":"Solving the Patent Settlement Puzzle","authors":"E. Elhauge, Alexander Krueger","doi":"10.2139/SSRN.2125456","DOIUrl":"https://doi.org/10.2139/SSRN.2125456","url":null,"abstract":"Courts and commentators are sharply divided about how to assess “reverse payment” patent settlements under antitrust law. The essential problem is that a PTO-issued patent provides only a probabilistic indication that courts would hold that the patent is actually valid and infringed, and parties have incentives to structure reverse payment settlements to exclude entry for longer than this patent probability would merit. Some favor comparing the settlement exclusion period to the expected litigation exclusion period, but this requires difficult case-by-case assessments of the probabilities of patent victory. Others instead favor a formal “scope of the patent” test that allows such settlements for nonsham patents if the settlement does not delay entry beyond the patent term, preclude noninfringing products, or delay nonsettling entrants. However, the formal scope of the patent test excludes entry for longer than merited by the patent strength, and it provides no solution when there is either a significant dispute about infringement or a bottleneck issue delaying other entrants. This Article provides a way out of this dilemma. It proves that when the reverse payment amount exceeds the patent holder’s anticipated litigation costs, then under standard conditions the settlement will, according to the patent holder’s own probability estimate, exclude entry for longer than both the expected litigation exclusion period and the optimal patent exclusion period, and thus will both harm consumer welfare and undermine optimal innovation incentives. Further, whenever a reverse payment is necessary for settlement, it will also have those same anticompetitive effects according to the entrant’s probability estimate. This proof thus provides an easily administrable way to determine when a reverse payment settlement is necessarily anticompetitive, without requiring any probabilistic inquiry into the patent merits. We also show that, contrary to conventional wisdom, patent settlements without any reverse payment usually (but not always) exceed both the expected litigation exclusion period and the optimal patent exclusion period, and we suggest a procedural solution to resolve such cases.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"283"},"PeriodicalIF":1.6,"publicationDate":"2012-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67926066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-11-01DOI: 10.5040/9780755621415.ch-013
K. Roosevelt
This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin chooses the Declaration instead because it has a universal appeal that the Reconstruction Amendments do not. But by making his theory consistent with our national mythology of a successful constitutional experiment — a mythology that slights the Civil War and Reconstriction — Balkin actually accedes to a political program he probably does not endorse.
{"title":"Reconstruction and Resistance","authors":"K. Roosevelt","doi":"10.5040/9780755621415.ch-013","DOIUrl":"https://doi.org/10.5040/9780755621415.ch-013","url":null,"abstract":"This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin chooses the Declaration instead because it has a universal appeal that the Reconstruction Amendments do not. But by making his theory consistent with our national mythology of a successful constitutional experiment — a mythology that slights the Civil War and Reconstriction — Balkin actually accedes to a political program he probably does not endorse.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"121"},"PeriodicalIF":1.6,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70498283","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 of Japan is widely and justifiably considered the most conservative constitutional court in the world. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars - including seven current and former members of the Supreme Court itself- this Article offers a and institutional account of why the Court has failed to take an active role in the enforcement of Japan 's postwar constitution. This account yields a number of insights into the relationship between judicial politics and electoral and the role of institutional design in mediating between the two. The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the center-right Democratic Party (LDP) has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself- namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of the Court's law clerks, who are themselves elite career judges with both the ability and the inclination to oppose any liberal escapades on the part of the justices. The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Supreme Court of Japan illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensures a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the
{"title":"The Anatomy of a Conservative Court: Judicial Review in Japan","authors":"David S. Law","doi":"10.4324/9781315089263-1","DOIUrl":"https://doi.org/10.4324/9781315089263-1","url":null,"abstract":"The Supreme Court of Japan is widely and justifiably considered the most conservative constitutional court in the world. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars - including seven current and former members of the Supreme Court itself- this Article offers a and institutional account of why the Court has failed to take an active role in the enforcement of Japan 's postwar constitution. This account yields a number of insights into the relationship between judicial politics and electoral and the role of institutional design in mediating between the two. The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the center-right Democratic Party (LDP) has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself- namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of the Court's law clerks, who are themselves elite career judges with both the ability and the inclination to oppose any liberal escapades on the part of the justices. The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Supreme Court of Japan illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensures a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"87 1","pages":"1545"},"PeriodicalIF":1.6,"publicationDate":"2012-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628219","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}
What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists offered their arguments solely in the context of the hard or indeterminate cases likely to find their way into appellate courts. Llewellyn, for example, made clear that his claims were restricted to “any case doubtful enough to make litigation respectable,” and Max Radin limited his Realist claims to “marginal cases.” Thus, a “tamed” version of Realism limits the Realists’ claims to the self-selected but non-representative group of disputes that are the stuff of reported appellate decisions. And this version is “tamed” because it is compatible with the view that standard legal sources determine the outcome in the cases that are not doubtful and would be futile to litigate. Indeed, the version is so tamed that it is largely compatible with Hart’s own response to the Realists. But although many commentators, including this author, have at times subscribed to this effort to tame Realism, that effort may understate the magnitude of the Realist challenge by understating the effect of the gap between paper rules and real rules, to use Llewellyn’s terminology, on the makeup of the array of cases that are or are not doubtful. If, as Llewellyn and others argued, factors other than the standard (or literal) reading of standard legal sources determine the outcome even when the standard legal sources are clear, then the existence of such non-standard sources will make cases that are not doubtful under the traditional picture doubtful – and thus worth litigating. And if this is so, then the divergence between real rule and paper rule will be relevant not only in doubtful cases, but also in determining which cases are doubtful and which not. Realism would then be a claim not merely about doubtful cases, but a claim pervading the entire operation of a system of legal rules. To the extent that the claim is true, therefore, it represents a serious attack on the traditional picture of law throughout its operation, and not simply in the doubtful cases. To the extent that easy cases are easy not because of the plain meaning of the language of a written-down or black-letter legal rule, and thus to the extent that hard cases are hard not because of the indeterminacy of the language of such rules, the entire array of cases selected for litigation, and deselected from litigation, will be determined by factors not to be found in the paper rules. In this sense, American Legal Realism constitutes a less bounded -- and thus untamed -- attack on the traditional picture of law, although the ultimate soundness of the challenge still depends on empirical facts about the relationship, if any, between the paper rules and the real rules.
{"title":"Legal Realism Untamed","authors":"F. Schauer","doi":"10.2139/SSRN.2064837","DOIUrl":"https://doi.org/10.2139/SSRN.2064837","url":null,"abstract":"What makes hard cases hard, and what makes easy cases easy? A common response to H.L.A. Hart’s (mis)reading of Legal Realist is that the Realists offered their arguments solely in the context of the hard or indeterminate cases likely to find their way into appellate courts. Llewellyn, for example, made clear that his claims were restricted to “any case doubtful enough to make litigation respectable,” and Max Radin limited his Realist claims to “marginal cases.” Thus, a “tamed” version of Realism limits the Realists’ claims to the self-selected but non-representative group of disputes that are the stuff of reported appellate decisions. And this version is “tamed” because it is compatible with the view that standard legal sources determine the outcome in the cases that are not doubtful and would be futile to litigate. Indeed, the version is so tamed that it is largely compatible with Hart’s own response to the Realists. But although many commentators, including this author, have at times subscribed to this effort to tame Realism, that effort may understate the magnitude of the Realist challenge by understating the effect of the gap between paper rules and real rules, to use Llewellyn’s terminology, on the makeup of the array of cases that are or are not doubtful. If, as Llewellyn and others argued, factors other than the standard (or literal) reading of standard legal sources determine the outcome even when the standard legal sources are clear, then the existence of such non-standard sources will make cases that are not doubtful under the traditional picture doubtful – and thus worth litigating. And if this is so, then the divergence between real rule and paper rule will be relevant not only in doubtful cases, but also in determining which cases are doubtful and which not. Realism would then be a claim not merely about doubtful cases, but a claim pervading the entire operation of a system of legal rules. To the extent that the claim is true, therefore, it represents a serious attack on the traditional picture of law throughout its operation, and not simply in the doubtful cases. To the extent that easy cases are easy not because of the plain meaning of the language of a written-down or black-letter legal rule, and thus to the extent that hard cases are hard not because of the indeterminacy of the language of such rules, the entire array of cases selected for litigation, and deselected from litigation, will be determined by factors not to be found in the paper rules. In this sense, American Legal Realism constitutes a less bounded -- and thus untamed -- attack on the traditional picture of law, although the ultimate soundness of the challenge still depends on empirical facts about the relationship, if any, between the paper rules and the real rules.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"53 1","pages":"749"},"PeriodicalIF":1.6,"publicationDate":"2012-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67895719","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}
When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that the longstanding debate about whether constitutional speech protections primarily serve collectivist or individualist purposes models a useful approach for interpreting the Second Amendment. Under that approach, the language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest. Many gun rights advocates urge that the Second Amendment serves a collective interest in deterring – and, if necessary, violently deposing – a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a longstanding choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. The article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.
{"title":"Speaking Truth to Firepower: How the First Amendment Destabilizes the Second","authors":"Gregory P. Magarian","doi":"10.2139/SSRN.2009125","DOIUrl":"https://doi.org/10.2139/SSRN.2009125","url":null,"abstract":"When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that the longstanding debate about whether constitutional speech protections primarily serve collectivist or individualist purposes models a useful approach for interpreting the Second Amendment. Under that approach, the language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest. Many gun rights advocates urge that the Second Amendment serves a collective interest in deterring – and, if necessary, violently deposing – a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a longstanding choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. The article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"49-99"},"PeriodicalIF":1.6,"publicationDate":"2012-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847870","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 doctrine of 'severability' permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. Severability figures centrally in a broad array of constitutional litigation, including the litigation over the 'individual mandate' provision of the Patient Protection and Affordable Care Act. Nevertheless, the doctrine remains underexplored. In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application. This Article aims to fill that void. The Article contends that in recent decisions the Supreme Court has quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest. The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.
{"title":"The New General Common Law of Severability","authors":"Ryan M. Scoville","doi":"10.2139/SSRN.1939944","DOIUrl":"https://doi.org/10.2139/SSRN.1939944","url":null,"abstract":"The doctrine of 'severability' permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. Severability figures centrally in a broad array of constitutional litigation, including the litigation over the 'individual mandate' provision of the Patient Protection and Affordable Care Act. Nevertheless, the doctrine remains underexplored. In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application. This Article aims to fill that void. The Article contends that in recent decisions the Supreme Court has quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest. The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"91 1","pages":"543"},"PeriodicalIF":1.6,"publicationDate":"2011-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67803183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper demonstrates that there is a distinctive style of presidentialism in Latin American constitutional design. While early constitutions in the region tended to follow the US model of presidency, subsequent constitutions evolved away from this model in favor of giving the president more authority in lawmaking. We demonstrate a substantial amount of convergence over time. This analysis has three important implications. First, it calls attention to geography as an important predictor of constitutional design. Second, our analysis emphasizes change rather than continuity and convergence over time. This approach contrasts with the recent emphasis in comparative law on - legal origins as determinants of contemporary outcomes. Finally, while the legal-origins analysts emphasize the importance of French law in Latin America, we show that at a constitutional level (surely important for economic outcomes), the influence of Spain and the United States was also significant in the early years. But while the legal-origins school argues for long-range consequences of initial choices, we observe a gradual process of constitutional updating in which constitutions within the region grow more similar to each other, and a move away from the models from which they were initially drawn.
{"title":"Latin American Presidentialism in Comparative and Historical Perspective","authors":"J. Cheibub, Zachary Elkins, Tom Ginsburg","doi":"10.26153/TSW/1476","DOIUrl":"https://doi.org/10.26153/TSW/1476","url":null,"abstract":"This paper demonstrates that there is a distinctive style of presidentialism in Latin American constitutional design. While early constitutions in the region tended to follow the US model of presidency, subsequent constitutions evolved away from this model in favor of giving the president more authority in lawmaking. We demonstrate a substantial amount of convergence over time. This analysis has three important implications. First, it calls attention to geography as an important predictor of constitutional design. Second, our analysis emphasizes change rather than continuity and convergence over time. This approach contrasts with the recent emphasis in comparative law on - legal origins as determinants of contemporary outcomes. Finally, while the legal-origins analysts emphasize the importance of French law in Latin America, we show that at a constitutional level (surely important for economic outcomes), the influence of Spain and the United States was also significant in the early years. But while the legal-origins school argues for long-range consequences of initial choices, we observe a gradual process of constitutional updating in which constitutions within the region grow more similar to each other, and a move away from the models from which they were initially drawn.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"89 1","pages":"1707-1739"},"PeriodicalIF":1.6,"publicationDate":"2011-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69258356","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 proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by reviewing the extensive literature about how courts should treat non-legislative rules. Because such rules play an important role in assuring coherence and accountability of agency policies and interpretations and in communicating the views of agencies about such matters the article agrees with those who advocate ex-post monitoring of agency use of rules issued without notice and comment procedures. Recognizing that ex-post monitoring leaves much leeway for agencies to abuse guidance documents by depriving stakeholders of opportunities to participate in their development and of obtaining substantive judicial review of them, the article advocates that non-legislative rules generally should be subject to arbitrary and capricious review when issued. The article proceeds to explain why other proposals to rein in agency discretion to use guidance documents – in particular making the agency explain its decision to proceed by this mode and forcing the agency to consider timely petitions for reconsideration of such documents – are likely to have less effect with greater cost than its proposal for direct review of guidance documents. In advocating for such review, however, the article contends that courts will need to massage doctrines governing availability of review, such as those governing finality and ripeness of guidance documents. Even more significantly, the article argues that review for reasoned decision-making will have to be modified to avoid seriously compromising the speed and procedural flexibility which makes guidance documents an attractive means for agencies to communicate their views of policy and interpretation. It therefore develops a variant on arbitrary and capricious review that would require agencies to explain issuance of guidance in terms of factors that are relevant and alternatives that are plausible given the state of knowledge available to the agency when it acted. The article concludes that such a doctrine can encourage agencies to solicit input even from stakeholders outside the issue networks affected by the guidance document, while preserving sufficient flexibility for the agency to issue the document quickly and without undue procedural burden.
{"title":"Substituting Substantive for Procedural Review of Guidance Documents","authors":"M. Seidenfeld","doi":"10.2139/SSRN.1748731","DOIUrl":"https://doi.org/10.2139/SSRN.1748731","url":null,"abstract":"This article proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by reviewing the extensive literature about how courts should treat non-legislative rules. Because such rules play an important role in assuring coherence and accountability of agency policies and interpretations and in communicating the views of agencies about such matters the article agrees with those who advocate ex-post monitoring of agency use of rules issued without notice and comment procedures. Recognizing that ex-post monitoring leaves much leeway for agencies to abuse guidance documents by depriving stakeholders of opportunities to participate in their development and of obtaining substantive judicial review of them, the article advocates that non-legislative rules generally should be subject to arbitrary and capricious review when issued. The article proceeds to explain why other proposals to rein in agency discretion to use guidance documents – in particular making the agency explain its decision to proceed by this mode and forcing the agency to consider timely petitions for reconsideration of such documents – are likely to have less effect with greater cost than its proposal for direct review of guidance documents. In advocating for such review, however, the article contends that courts will need to massage doctrines governing availability of review, such as those governing finality and ripeness of guidance documents. Even more significantly, the article argues that review for reasoned decision-making will have to be modified to avoid seriously compromising the speed and procedural flexibility which makes guidance documents an attractive means for agencies to communicate their views of policy and interpretation. It therefore develops a variant on arbitrary and capricious review that would require agencies to explain issuance of guidance in terms of factors that are relevant and alternatives that are plausible given the state of knowledge available to the agency when it acted. The article concludes that such a doctrine can encourage agencies to solicit input even from stakeholders outside the issue networks affected by the guidance document, while preserving sufficient flexibility for the agency to issue the document quickly and without undue procedural burden.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"90 1","pages":"331"},"PeriodicalIF":1.6,"publicationDate":"2011-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67732486","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}
For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.
{"title":"On the Origins of Originalism","authors":"J. Greene","doi":"10.7916/D8JD4VWN","DOIUrl":"https://doi.org/10.7916/D8JD4VWN","url":null,"abstract":"For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"88 1","pages":"1-89"},"PeriodicalIF":1.6,"publicationDate":"2009-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71366271","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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