{"title":"Introduction. \"Paying the alligator\": precommitment in law, bioethics, and constitutions.","authors":"John A Robertson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1729-49"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Commitment problems in the theory of rational choice.","authors":"Robert H Frank","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1789-804"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Precommitment analysis and societal moral identity.","authors":"Richard S Markovits","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 7","pages":"1877-927"},"PeriodicalIF":1.6,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40914698","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}
Avoiding "Lochner's error" remains a primary focus of constitutional law and constitutional scholarship. Debate, however, continues regarding just what that error was. In Cass Sunstein's oft-cited 1987 Columbia Law Review article, Lochner's Legacy, Sunstein argues that the Lochner era Court's primary error was not its purported "judicial activism." Rather, the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional. Lochner's Legacy's understanding of the Lochner era has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue to battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal Justices have adopted Lochner's Legacy's historical thesis. This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood the common law "to be part of nature rather than a legal construct"; (2) that the Lochner era Court sought to preserve what it saw as the "natural," "status quo" distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the "baseline" to determine the constitutionality of government regulations. This Article argues that all three of these propositions are demonstrably incorrect.
{"title":"Lochner's Legacy's Legacy","authors":"D. Bernstein","doi":"10.2139/SSRN.394861","DOIUrl":"https://doi.org/10.2139/SSRN.394861","url":null,"abstract":"Avoiding \"Lochner's error\" remains a primary focus of constitutional law and constitutional scholarship. Debate, however, continues regarding just what that error was. In Cass Sunstein's oft-cited 1987 Columbia Law Review article, Lochner's Legacy, Sunstein argues that the Lochner era Court's primary error was not its purported \"judicial activism.\" Rather, the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional. Lochner's Legacy's understanding of the Lochner era has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue to battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal Justices have adopted Lochner's Legacy's historical thesis. This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood the common law \"to be part of nature rather than a legal construct\"; (2) that the Lochner era Court sought to preserve what it saw as the \"natural,\" \"status quo\" distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the \"baseline\" to determine the constitutionality of government regulations. This Article argues that all three of these propositions are demonstrably incorrect.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"82 1","pages":"1"},"PeriodicalIF":1.6,"publicationDate":"2003-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68669286","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 explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property - in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.
{"title":"The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections","authors":"S. Issacharoff","doi":"10.2139/SSRN.399480","DOIUrl":"https://doi.org/10.2139/SSRN.399480","url":null,"abstract":"This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property - in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 1","pages":"1985"},"PeriodicalIF":1.6,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68677521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this essay, I respond to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez, 122 S.Ct. 2326 (2002) and by Professor Steven Clymer in 112 Yale L.J. 447 (2003), that the police are free to disgregard Miranda. I suggest that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. I further argue that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, I suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.
{"title":"No Time for Silence","authors":"S. Klein","doi":"10.2139/SSRN.385724","DOIUrl":"https://doi.org/10.2139/SSRN.385724","url":null,"abstract":"In this essay, I respond to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez, 122 S.Ct. 2326 (2002) and by Professor Steven Clymer in 112 Yale L.J. 447 (2003), that the police are free to disgregard Miranda. I suggest that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. I further argue that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, I suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"63 1","pages":"1337-1360"},"PeriodicalIF":1.6,"publicationDate":"2003-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68660228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I. Introduction When passing legislation, Congress routinely delegates considerable discretionary authority to administrative agencies. To control its grant of power, Congress relies primarily on two instruments: statutory language limiting agency discretion and ex post oversight by congressional committees. Political scientists who study these forms of control disagree about their relative effectiveness, but they tend to assume that committees work on behalf of Congress to see that agencies remain faithful to the majority's preferences. Thus, in the conventional understanding, the internal delegation of oversight authority to congressional committees helps to regulate the external delegation of authority from Congress to administrative agencies. We argue that this use of internal delegation is a gamble. Contrary to the conventional view, committee members sometimes defy majority preferences rather than reinforce them. This split occurs because individual committee members, to further their own interests, vie for control over agencies, both with each other and with past enacting majorities. Just as Congress creates a principal-agent problem when it delegates administrative power to agencies, so does it create an internal accountability problem when it delegates oversight power to committees. Indeed, one delegation might exacerbate the other. Together, this "double delegation" creates a significant risk that sub-majorities of Congress will ultimately direct agency implementation of statutes in a way not only unforeseen by the enacting majority, which expresses its preferences in law, but also unapproved by the current majority due to imperfect control over committees.1 We call the former problem "disjointed majoritarianism"2 because it arises when congressional majorities shift over time. Playing off Alexander Bickel's famous characterization of the judiciary, we call the latter problem the sub-majoritarian difficulty.3 In this Article, we challenge the undifferentiated view of congressional control over delegated power, which assumes that oversight committees will enforce the wishes of a congressional majority.4 Our argument arises against the backdrop of three decades of debate over whether agencies are sufficiently accountable to Congress. While some scholars argue that Congress effectively controls agency discretion,5 others insist that agencies remain substantially autonomous despite congressional efforts to rein them in.6 The worry animating this scholarship is that agencies, insulated from direct electoral sanction and equipped with informational advantages their overseers lack, will drift from their statutory obligations out of self-interest, vulnerability, or ineptitude.7 To mitigate this risk, Congress relies heavily on its committees. Because members of these committees are members of, and deputies for, the larger Congress, commentators tend to treat them as if the two sets of preferences perfectly align. As a result, when an agency is
{"title":"The Congressional Competition to Control Delegated Power","authors":"J. Deshazo, J. Freeman","doi":"10.2139/SSRN.324482","DOIUrl":"https://doi.org/10.2139/SSRN.324482","url":null,"abstract":"I. Introduction When passing legislation, Congress routinely delegates considerable discretionary authority to administrative agencies. To control its grant of power, Congress relies primarily on two instruments: statutory language limiting agency discretion and ex post oversight by congressional committees. Political scientists who study these forms of control disagree about their relative effectiveness, but they tend to assume that committees work on behalf of Congress to see that agencies remain faithful to the majority's preferences. Thus, in the conventional understanding, the internal delegation of oversight authority to congressional committees helps to regulate the external delegation of authority from Congress to administrative agencies. We argue that this use of internal delegation is a gamble. Contrary to the conventional view, committee members sometimes defy majority preferences rather than reinforce them. This split occurs because individual committee members, to further their own interests, vie for control over agencies, both with each other and with past enacting majorities. Just as Congress creates a principal-agent problem when it delegates administrative power to agencies, so does it create an internal accountability problem when it delegates oversight power to committees. Indeed, one delegation might exacerbate the other. Together, this \"double delegation\" creates a significant risk that sub-majorities of Congress will ultimately direct agency implementation of statutes in a way not only unforeseen by the enacting majority, which expresses its preferences in law, but also unapproved by the current majority due to imperfect control over committees.1 We call the former problem \"disjointed majoritarianism\"2 because it arises when congressional majorities shift over time. Playing off Alexander Bickel's famous characterization of the judiciary, we call the latter problem the sub-majoritarian difficulty.3 In this Article, we challenge the undifferentiated view of congressional control over delegated power, which assumes that oversight committees will enforce the wishes of a congressional majority.4 Our argument arises against the backdrop of three decades of debate over whether agencies are sufficiently accountable to Congress. While some scholars argue that Congress effectively controls agency discretion,5 others insist that agencies remain substantially autonomous despite congressional efforts to rein them in.6 The worry animating this scholarship is that agencies, insulated from direct electoral sanction and equipped with informational advantages their overseers lack, will drift from their statutory obligations out of self-interest, vulnerability, or ineptitude.7 To mitigate this risk, Congress relies heavily on its committees. Because members of these committees are members of, and deputies for, the larger Congress, commentators tend to treat them as if the two sets of preferences perfectly align. As a result, when an agency is ","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"81 1","pages":"1443"},"PeriodicalIF":1.6,"publicationDate":"2002-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68576584","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 empirical studies of litigation costs for the purpose of learning whether they support a particular version of the claim that civil justice processes consume too many resources. The inefficiency claim considered posits that these processes could transfer the same number of dollars to the same recipients at far less cost. The belief that costs can be reduced while keeping redistributive effects constant is a mainstay of the tort reform movement and the movement for alternative dispute resolution. The article argues that it should not be possible to reduce dollar-transfer costs dramatically without also changing distributive outcomes because parties should already be acting rationally to minimize these costs. Settlements and judgments are exchanges at prices set by parties or courts. Therefore, it is reasonable to expect litigants to act like exchange partners more generally and to minimize the cost of transacting. The review of empirical studies of discovery costs, alternative dispute resolution, litigation costs, and other subjects supports the suggestion that parties are acting rationally.
{"title":"Does Civil Justice Cost Too Much","authors":"C. Silver","doi":"10.2139/SSRN.314964","DOIUrl":"https://doi.org/10.2139/SSRN.314964","url":null,"abstract":"This article reviews empirical studies of litigation costs for the purpose of learning whether they support a particular version of the claim that civil justice processes consume too many resources. The inefficiency claim considered posits that these processes could transfer the same number of dollars to the same recipients at far less cost. The belief that costs can be reduced while keeping redistributive effects constant is a mainstay of the tort reform movement and the movement for alternative dispute resolution. The article argues that it should not be possible to reduce dollar-transfer costs dramatically without also changing distributive outcomes because parties should already be acting rationally to minimize these costs. Settlements and judgments are exchanges at prices set by parties or courts. Therefore, it is reasonable to expect litigants to act like exchange partners more generally and to minimize the cost of transacting. The review of empirical studies of discovery costs, alternative dispute resolution, litigation costs, and other subjects supports the suggestion that parties are acting rationally.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"2073"},"PeriodicalIF":1.6,"publicationDate":"2002-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.314964","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68566398","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}
Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal resources. The consideration of race also allows for an examination of other critical issues ignored by reformers, such as racially selective enforcement of campaign finance regulations and the adverse impact of some reform provisions on minority political participation.
{"title":"But Some are More Equal: Race, Exclusion, and Campaign Finance","authors":"Spencer A. Overton","doi":"10.2139/SSRN.309701","DOIUrl":"https://doi.org/10.2139/SSRN.309701","url":null,"abstract":"Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal resources. The consideration of race also allows for an examination of other critical issues ignored by reformers, such as racially selective enforcement of campaign finance regulations and the adverse impact of some reform provisions on minority political participation.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"987"},"PeriodicalIF":1.6,"publicationDate":"2002-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561255","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 Article surveys the growing law and finance literature providing evidence that legal protections for minority investors (and accompanying private and public institutions) correlate with various indices of financial development. Evidence in particular exists that countries with a common law origin enjoy both strong levels of investor protection as well as superior financial performance compared with civil law origin countries. Correlation does not mean causation, however. The Article examines the evidence related to whether the legal regime in fact causes financial development. Even if the legal regime does in fact cause such development, a question remains: How to generate investor-friendly legal regimes. Evidence on the efficacy of top-down reforms, including the transplant of laws from one regime to another, is examined. As an alternative, the Article puts forth the hypothesis that increased competition (whether product market, capital market, or regulatory competition) may have a greater ability to generate lasting changes in a country's legal environment to the benefit of investors and overall welfare.
{"title":"Law, Finance, and Path Dependence: Developing Strong Securities Markets","authors":"Stephen Choi","doi":"10.2139/SSRN.299386","DOIUrl":"https://doi.org/10.2139/SSRN.299386","url":null,"abstract":"The Article surveys the growing law and finance literature providing evidence that legal protections for minority investors (and accompanying private and public institutions) correlate with various indices of financial development. Evidence in particular exists that countries with a common law origin enjoy both strong levels of investor protection as well as superior financial performance compared with civil law origin countries. Correlation does not mean causation, however. The Article examines the evidence related to whether the legal regime in fact causes financial development. Even if the legal regime does in fact cause such development, a question remains: How to generate investor-friendly legal regimes. Evidence on the efficacy of top-down reforms, including the transplant of laws from one regime to another, is examined. As an alternative, the Article puts forth the hypothesis that increased competition (whether product market, capital market, or regulatory competition) may have a greater ability to generate lasting changes in a country's legal environment to the benefit of investors and overall welfare.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"1657"},"PeriodicalIF":1.6,"publicationDate":"2002-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.299386","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68465006","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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