Traditional criminal law theories provide little account of third-party interests injured from punishment of offenders. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law - deterrence, retribution, or some mixture of the two - as guides for when and how much to punish. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for punishment?s collateral consequences to third parties. Third-party interests now appear in both prosecutorial charging guidelines and judicial sentencing decisions as rationales for leniency. This intermittent concern for collateral harms poses practical problems of defining which third-party interests. It also leads to treating like cases differently. We accommodate third-party interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice. Conceptually, mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of dominant theories of criminal law, deontological retributivism and deterrence-oriented utilitarianism. Our practical concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Mitigating third-party interests is likely necessary at times to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice and crime prevention sometimes necessitate punishment. This essay explores the problems of third-party interests and describes some implications for criminal justice of downgrading the primacy of retributivism and deterrence in order to view criminal law more as a pragmatic, administrative process that accommodates multiple, conflicting policy interests.
{"title":"Third-Party Interests in Criminal Law","authors":"Darryl K. Brown","doi":"10.2139/SSRN.295639","DOIUrl":"https://doi.org/10.2139/SSRN.295639","url":null,"abstract":"Traditional criminal law theories provide little account of third-party interests injured from punishment of offenders. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law - deterrence, retribution, or some mixture of the two - as guides for when and how much to punish. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for punishment?s collateral consequences to third parties. Third-party interests now appear in both prosecutorial charging guidelines and judicial sentencing decisions as rationales for leniency. This intermittent concern for collateral harms poses practical problems of defining which third-party interests. It also leads to treating like cases differently. We accommodate third-party interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice. Conceptually, mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of dominant theories of criminal law, deontological retributivism and deterrence-oriented utilitarianism. Our practical concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Mitigating third-party interests is likely necessary at times to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice and crime prevention sometimes necessitate punishment. This essay explores the problems of third-party interests and describes some implications for criminal justice of downgrading the primacy of retributivism and deterrence in order to view criminal law more as a pragmatic, administrative process that accommodates multiple, conflicting policy interests.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"1383"},"PeriodicalIF":1.6,"publicationDate":"2002-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.295639","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68445387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The right to know one's genetic origin: can, should, or must a state that extends this right to adoptees extend an analogous right to children conceived with donor gametes?","authors":"E S Chestney","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 2","pages":"365-91"},"PeriodicalIF":1.6,"publicationDate":"2001-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22328055","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}
Most accounts of the power of Congress over the appellate jurisdiction of the Supreme Court focus on the Exceptions and Regulations Clause and the degree to which it authorizes Congress to restrict the Court's role as the ultimate interpreter of federal law. [This Article] proposes to broaden the debate over jurisdiction stripping to include a consideration of the constitutional significance of the Court's required "supremacy." Beginning with the text of Articles I and III, [the Article] notes the requirement that any federal courts that Congress creates must remain "inferior" to the one Supreme Court that the Constitution itself requires. [It] shows that the framers of the Constitution were likely to have understood the required relationship of supremacy and inferiority to entail a power in the Supreme Court to supervise lower courts through the issuance of the supervisory writs of mandamus, prohibition, and habeas corpus. Building on this supervisory understanding of the Court's supremacy, [the Article] reviews the historical and doctrinal case for a constitutional power of supervision. Finding broad support for such a power in the adoption and interpretation of the statutory precursors of the modern All Writs Act, [it] concludes that Congress may not place the work of lower federal courts beyond the supervisory authority of the Court.
{"title":"Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals","authors":"James E. Pfander","doi":"10.2139/SSRN.289355","DOIUrl":"https://doi.org/10.2139/SSRN.289355","url":null,"abstract":"Most accounts of the power of Congress over the appellate jurisdiction of the Supreme Court focus on the Exceptions and Regulations Clause and the degree to which it authorizes Congress to restrict the Court's role as the ultimate interpreter of federal law. [This Article] proposes to broaden the debate over jurisdiction stripping to include a consideration of the constitutional significance of the Court's required \"supremacy.\" Beginning with the text of Articles I and III, [the Article] notes the requirement that any federal courts that Congress creates must remain \"inferior\" to the one Supreme Court that the Constitution itself requires. [It] shows that the framers of the Constitution were likely to have understood the required relationship of supremacy and inferiority to entail a power in the Supreme Court to supervise lower courts through the issuance of the supervisory writs of mandamus, prohibition, and habeas corpus. Building on this supervisory understanding of the Court's supremacy, [the Article] reviews the historical and doctrinal case for a constitutional power of supervision. Finding broad support for such a power in the adoption and interpretation of the statutory precursors of the modern All Writs Act, [it] concludes that Congress may not place the work of lower federal courts beyond the supervisory authority of the Court.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"78 1","pages":""},"PeriodicalIF":1.6,"publicationDate":"2001-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.289355","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68423375","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}
Two goods commonly provided by local governments - education and neighborhood security - have an enormous impact on day-to-day quality of life and generate a great deal of debate. Because legal structures, institutions, and rules determine how these goods will be provided, funded, and consumed, one might expect legal academics to be important participants in the public discourse surrounding these goods. In fact, the legal academy's contribution has been limited because legal scholars have failed to generate a convincing descriptive account of how the quality of these goods is determined and how people make choices about them. Legal scholarship has typically assumed that the quality of local public goods is driven by some combination of market-like consumer behavior ("exit") and political activity ("voice"). Although the "exit-voice" framework is useful, it is incomplete with respect to goods like education and neighborhood security. It overlooks the critical role of user behavior - the acts and omissions of the school's students and the neighborhood's residents - in determining the quality of such goods. If participation is central to quality and users are heterogeneous in their participation, then understanding the formation, membership, and internal behavior of user pools (individual neighborhoods and schools) is crucial for law and policy. For example, an understanding of these dynamics would transform the current debate over education vouchers and shed new light on practices of residential zoning. This paper uses game theory to systematically work through the implications of user participation for education and neighborhood security. I examine two related collective action problems: the first involving an individual's choice of a consumption community or user pool, and the second involving an individual's choice of action within a particular user pool. I then explore how these two games interact with each other and with legal rules to generate real-world outcomes. Finally, I briefly consider two legal mechanisms - education vouchers and residential zoning - through the lens of user participation.
{"title":"Beyond Exit and Voice: User Participation in the Production of Local Public Goods","authors":"L. Fennell","doi":"10.2139/SSRN.288807","DOIUrl":"https://doi.org/10.2139/SSRN.288807","url":null,"abstract":"Two goods commonly provided by local governments - education and neighborhood security - have an enormous impact on day-to-day quality of life and generate a great deal of debate. Because legal structures, institutions, and rules determine how these goods will be provided, funded, and consumed, one might expect legal academics to be important participants in the public discourse surrounding these goods. In fact, the legal academy's contribution has been limited because legal scholars have failed to generate a convincing descriptive account of how the quality of these goods is determined and how people make choices about them. Legal scholarship has typically assumed that the quality of local public goods is driven by some combination of market-like consumer behavior (\"exit\") and political activity (\"voice\"). Although the \"exit-voice\" framework is useful, it is incomplete with respect to goods like education and neighborhood security. It overlooks the critical role of user behavior - the acts and omissions of the school's students and the neighborhood's residents - in determining the quality of such goods. If participation is central to quality and users are heterogeneous in their participation, then understanding the formation, membership, and internal behavior of user pools (individual neighborhoods and schools) is crucial for law and policy. For example, an understanding of these dynamics would transform the current debate over education vouchers and shed new light on practices of residential zoning. This paper uses game theory to systematically work through the implications of user participation for education and neighborhood security. I examine two related collective action problems: the first involving an individual's choice of a consumption community or user pool, and the second involving an individual's choice of action within a particular user pool. I then explore how these two games interact with each other and with legal rules to generate real-world outcomes. Finally, I briefly consider two legal mechanisms - education vouchers and residential zoning - through the lens of user participation.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"1"},"PeriodicalIF":1.6,"publicationDate":"2001-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68419602","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 law of restitution is said to embody a principle against unjust enrichment: one person should not be unjustly enriched at the expense of another. This article is a study of the principle against unjust enrichment and its connection, if any, to "equity." The principle against unjust enrichment can be understood in at least three ways. First, it can be interpreted as a principle of Aristotelian equity, providing correction when normally sound rules produce unjust results in particular cases. Second, the principle against unjust enrichment can be characterized as a "legal principle" incorporating a broad ideal of justice, from which courts can deduce solutions to particular restitution problems. Finally, the principle can be understood simply as expressing a common theme of restitution cases; on this view, unjust enrichment is a descriptive and organizational concept, which plays no direct role in judicial decision-making. The first two interpretations associate unjust enrichment, and hence the law of restitution, with equity. The third view does not imply a special affinity between restitution and equity, in contrast to other areas of law. The article concludes that restitution should not be confused with Aristotelian equity, because there is nothing both unique to restitution and common to all instances of restitution that justifies courts in according less respect to rules than they would in other areas of law. Although the second interpretation of the principle against unjust enrichment, as a principle from which courts can deduce outcomes, is more plausible, it seems unwise to confer authoritative legal status to a notion as vague as unjust enrichment. Accordingly, the third interpretation is the most appealing.
{"title":"Restitution and Equity: An Analysis of the Principle of Unjust Enrichment","authors":"Emily L. Sherwin","doi":"10.2139/SSRN.285563","DOIUrl":"https://doi.org/10.2139/SSRN.285563","url":null,"abstract":"The law of restitution is said to embody a principle against unjust enrichment: one person should not be unjustly enriched at the expense of another. This article is a study of the principle against unjust enrichment and its connection, if any, to \"equity.\" The principle against unjust enrichment can be understood in at least three ways. First, it can be interpreted as a principle of Aristotelian equity, providing correction when normally sound rules produce unjust results in particular cases. Second, the principle against unjust enrichment can be characterized as a \"legal principle\" incorporating a broad ideal of justice, from which courts can deduce solutions to particular restitution problems. Finally, the principle can be understood simply as expressing a common theme of restitution cases; on this view, unjust enrichment is a descriptive and organizational concept, which plays no direct role in judicial decision-making. The first two interpretations associate unjust enrichment, and hence the law of restitution, with equity. The third view does not imply a special affinity between restitution and equity, in contrast to other areas of law. The article concludes that restitution should not be confused with Aristotelian equity, because there is nothing both unique to restitution and common to all instances of restitution that justifies courts in according less respect to rules than they would in other areas of law. Although the second interpretation of the principle against unjust enrichment, as a principle from which courts can deduce outcomes, is more plausible, it seems unwise to confer authoritative legal status to a notion as vague as unjust enrichment. Accordingly, the third interpretation is the most appealing.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"79 1","pages":"2083"},"PeriodicalIF":1.6,"publicationDate":"2001-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.285563","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68392654","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}
Foreign relations law presents a particularly fertile field in which to explore constitutional dynamics. This article uses the recent debate over the constitutional interchangeability of Article II treaties (requiring supermajority approval of the Senate) and congressional-executive agreements (approved with a bicameral majority) as a case study in constitutional method. The article first critiques arguments by Laurence Tribe, who on a textual basis argues the constitutional illegitimacy of the North American Free Trade Agreement and the World Trade Organization Uruguay Round, both approved as congressional-executive agreements; and by Bruce Ackerman and David Golove, who assert their constitutionality in all cases as grounded in a constitutional moment following World War II. This article argues that the constitutionality of congressional-executive agreements can be established, but only at the end of an accretive historical practice and only in a narrow range of substantive contexts. In contrast to Tribe, the article demonstrates the constitutionality of congressional-executive agreements; in contrast to Ackerman and Golove, it denies the full interchangeability of congressional-executive agreements with treaties. The article uses post-war developments to show that the congressional-executive agreement form is acceptable in some contexts (with respect to trade agreements, where it may in fact be mandatory) and not in others (most notably with respect to arms control agreements, where the Senate has maintained an institutional opposition to submitting such agreement via any route other than Article II). The article uses this case study to pose a model of constitutional increments. In contrast to the moments approach, the increments model accepts the evolutionary, episodic development of constitutional norms. The model offers four metrics for assessing the constitutional significance of any particular constitutional episode: acceptance by relevant actors, including non-judicial and, in some cases, non-governmental actors; the degree of contestedness evidenced in an episode (the more contested a principle, the greater significance afforded the resolution of that contest); the age of the episode (older episodes being less significant, at least as unsupported by more recent practice); and the pedigree of the principle for which the episode is offered. This model, the article asserts, offers greater constitutional determinacy than competing models of constitutional development. The model also better advances the central normative virtue of constitutionalism, namely of facilitating recognition of long-term community aspirations through the constraint of shorter-term continuity.
{"title":"Treaties, Executive Agreements, and Constitutional Method","authors":"Peter J. Spiro","doi":"10.2139/SSRN.266969","DOIUrl":"https://doi.org/10.2139/SSRN.266969","url":null,"abstract":"Foreign relations law presents a particularly fertile field in which to explore constitutional dynamics. This article uses the recent debate over the constitutional interchangeability of Article II treaties (requiring supermajority approval of the Senate) and congressional-executive agreements (approved with a bicameral majority) as a case study in constitutional method. The article first critiques arguments by Laurence Tribe, who on a textual basis argues the constitutional illegitimacy of the North American Free Trade Agreement and the World Trade Organization Uruguay Round, both approved as congressional-executive agreements; and by Bruce Ackerman and David Golove, who assert their constitutionality in all cases as grounded in a constitutional moment following World War II. This article argues that the constitutionality of congressional-executive agreements can be established, but only at the end of an accretive historical practice and only in a narrow range of substantive contexts. In contrast to Tribe, the article demonstrates the constitutionality of congressional-executive agreements; in contrast to Ackerman and Golove, it denies the full interchangeability of congressional-executive agreements with treaties. The article uses post-war developments to show that the congressional-executive agreement form is acceptable in some contexts (with respect to trade agreements, where it may in fact be mandatory) and not in others (most notably with respect to arms control agreements, where the Senate has maintained an institutional opposition to submitting such agreement via any route other than Article II). The article uses this case study to pose a model of constitutional increments. In contrast to the moments approach, the increments model accepts the evolutionary, episodic development of constitutional norms. The model offers four metrics for assessing the constitutional significance of any particular constitutional episode: acceptance by relevant actors, including non-judicial and, in some cases, non-governmental actors; the degree of contestedness evidenced in an episode (the more contested a principle, the greater significance afforded the resolution of that contest); the age of the episode (older episodes being less significant, at least as unsupported by more recent practice); and the pedigree of the principle for which the episode is offered. This model, the article asserts, offers greater constitutional determinacy than competing models of constitutional development. The model also better advances the central normative virtue of constitutionalism, namely of facilitating recognition of long-term community aspirations through the constraint of shorter-term continuity.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"79 1","pages":"961"},"PeriodicalIF":1.6,"publicationDate":"2001-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68248251","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 builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with the characteristics of a person observed in a second observation to determine whether they are the same person. From the theory it follows that a characteristic used for identification in the credit reporting system, such as social security number, mother's maiden name and date of birth, must be known to all entities participating in that system. Because those characteristics - and any substitute for them - must be distributed so widely, it is unrealistic to think they can at the same time remain secret. Hence the current efforts to curb identity theft by keeping personal information secret are doomed to failure. As an alternative solution to the identity theft problem, this paper proposes a system by which persons concerned about identity theft can register their identities through a government agency that will make their names, social security numbers, and non-sensitive contact information publicly available on an open-access website. Credit grantors and credit reporting agencies would have the option to contact the registrant to verify that he or she is in fact the credit applicant. Creditors who opted to use the system to identify a borrower would retain their current exemption from legal liability for misidentification. Those who did not would be liable for misidentification under common law principles, including theories of defamation, invasion of privacy, and negligence. In cases in which credit grantors and credit reporting agencies used the system, the effect would be to give the individual person control over the process of his or her own identification in credit transactions, with no meaningful loss of privacy.
{"title":"Human Identification Theory and the Identity Theft Problem","authors":"Lynn M. LoPucki","doi":"10.2139/SSRN.263213","DOIUrl":"https://doi.org/10.2139/SSRN.263213","url":null,"abstract":"This paper builds on the theory of human identification proposed by Professor Roger Clarke and uses the product as the basis for a proposed solution to the identity theft problem. The expanded theory holds that all human identification fits a single model. The identifior matches the characteristics of a person observed in a first observation with the characteristics of a person observed in a second observation to determine whether they are the same person. From the theory it follows that a characteristic used for identification in the credit reporting system, such as social security number, mother's maiden name and date of birth, must be known to all entities participating in that system. Because those characteristics - and any substitute for them - must be distributed so widely, it is unrealistic to think they can at the same time remain secret. Hence the current efforts to curb identity theft by keeping personal information secret are doomed to failure. As an alternative solution to the identity theft problem, this paper proposes a system by which persons concerned about identity theft can register their identities through a government agency that will make their names, social security numbers, and non-sensitive contact information publicly available on an open-access website. Credit grantors and credit reporting agencies would have the option to contact the registrant to verify that he or she is in fact the credit applicant. Creditors who opted to use the system to identify a borrower would retain their current exemption from legal liability for misidentification. Those who did not would be liable for misidentification under common law principles, including theories of defamation, invasion of privacy, and negligence. In cases in which credit grantors and credit reporting agencies used the system, the effect would be to give the individual person control over the process of his or her own identification in credit transactions, with no meaningful loss of privacy.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"80 1","pages":"89"},"PeriodicalIF":1.6,"publicationDate":"2001-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.263213","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232429","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 theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the constitutional structure, as does Kramer's provocative theory that the extra-constitutional role of the national political parties can serve as a complete substitute for judicial review of federalism questions. Finally, we show that the original understanding of the Constitution cannot support any theory that insists that the national political process's presence as a possible safeguard permits the exclusion of judicial review over federalism questions.
{"title":"The Puzzling Persistence of Process-Based Federalism Theories","authors":"S. Prakash, J. Yoo","doi":"10.2139/SSRN.268862","DOIUrl":"https://doi.org/10.2139/SSRN.268862","url":null,"abstract":"The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the constitutional structure, as does Kramer's provocative theory that the extra-constitutional role of the national political parties can serve as a complete substitute for judicial review of federalism questions. Finally, we show that the original understanding of the Constitution cannot support any theory that insists that the national political process's presence as a possible safeguard permits the exclusion of judicial review over federalism questions.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"79 1","pages":"1459"},"PeriodicalIF":1.6,"publicationDate":"2001-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68255440","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 twin problems of displaced homemaker indigency and the general devaluation of women?s work may be alleviated by commercializing marriage through premarital security agreements ("PSAs"). PSAs are modeled on commercial security agreements, and import the rights and duties of creditors and debtors to the marital relationship. This importation is justified because in a typical marriage the primary homemaker contributes substantially to the primary wage-earner?s stream of income, but post-divorce stream of income usually is not distributed upon divorce (even though it is often the most important asset in a marriage). This inequitable distribution of marital assets often leaves the homemaker in significantly worse financial shape than her former spouse. PSAs seek to remedy this situation by designating the primary homemaker as a creditor in relation to her primary wage-earning spouse on the theory that she gives value to her wage-earning spouse in the form of homemaking services and lost opportunity costs that facilitate maximization of his wage-earning potential. She does so in the expectation that she will share this stream of income throughout the wage-earner?s career, but this expectation is frustrated upon divorce. PSAs would explicitly recognize this debtor/creditor relationship between traditionalist spouses by calculating a debt that the primary-wage earner owes to the primary homemaker based on the duration of the marriage, the difference between the spouses? wages, and the age of any minor children. PSAs would secure the primary homemaker?s interest in repayment of this loan with collateral (50% of marital property, which is defined to include the primary wage-earner?s post-divorce income). Upon default, the homemaker, like a commercial secured creditor, would have the option to repossess or garnish the collateral to satisfy the unpaid portion of the debt. "Commercializing Marriage" suggests that PSAs have cross over potential in that they cohere with the approaches of disparate ideological approaches, including those of legal economic, as well as liberal, cultural, and radical feminist scholars. PSAs offer a new approach and thus contribute to a broad scholarly discourse searching for a theory justifying alimony that is consistent with contemporary understandings of gender. "Commercializing Marriage" analyzes how PSAs cohere with the approaches of disparate ideologies, including legal economics and liberal, cultural, and radical feminism. Legal economists would appreciate PSAs? commercial origins, and their power to efficiently deter opportunism. Cultural feminists might like the way PSAs increase the value of caretaking. While liberal feminist concerns are likely to arise around PSAs? potential to create incentives to adopt traditional gender roles, liberal feminists might appreciate PSAs? parallel potential to create incentives for more equal distribution of homemaking and wage labor. PSAs also serve the interests of radical feminism b
{"title":"Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements","authors":"Martha M. Ertman","doi":"10.2139/SSRN.148048","DOIUrl":"https://doi.org/10.2139/SSRN.148048","url":null,"abstract":"The twin problems of displaced homemaker indigency and the general devaluation of women?s work may be alleviated by commercializing marriage through premarital security agreements (\"PSAs\"). PSAs are modeled on commercial security agreements, and import the rights and duties of creditors and debtors to the marital relationship. This importation is justified because in a typical marriage the primary homemaker contributes substantially to the primary wage-earner?s stream of income, but post-divorce stream of income usually is not distributed upon divorce (even though it is often the most important asset in a marriage). This inequitable distribution of marital assets often leaves the homemaker in significantly worse financial shape than her former spouse. PSAs seek to remedy this situation by designating the primary homemaker as a creditor in relation to her primary wage-earning spouse on the theory that she gives value to her wage-earning spouse in the form of homemaking services and lost opportunity costs that facilitate maximization of his wage-earning potential. She does so in the expectation that she will share this stream of income throughout the wage-earner?s career, but this expectation is frustrated upon divorce. PSAs would explicitly recognize this debtor/creditor relationship between traditionalist spouses by calculating a debt that the primary-wage earner owes to the primary homemaker based on the duration of the marriage, the difference between the spouses? wages, and the age of any minor children. PSAs would secure the primary homemaker?s interest in repayment of this loan with collateral (50% of marital property, which is defined to include the primary wage-earner?s post-divorce income). Upon default, the homemaker, like a commercial secured creditor, would have the option to repossess or garnish the collateral to satisfy the unpaid portion of the debt. \"Commercializing Marriage\" suggests that PSAs have cross over potential in that they cohere with the approaches of disparate ideological approaches, including those of legal economic, as well as liberal, cultural, and radical feminist scholars. PSAs offer a new approach and thus contribute to a broad scholarly discourse searching for a theory justifying alimony that is consistent with contemporary understandings of gender. \"Commercializing Marriage\" analyzes how PSAs cohere with the approaches of disparate ideologies, including legal economics and liberal, cultural, and radical feminism. Legal economists would appreciate PSAs? commercial origins, and their power to efficiently deter opportunism. Cultural feminists might like the way PSAs increase the value of caretaking. While liberal feminist concerns are likely to arise around PSAs? potential to create incentives to adopt traditional gender roles, liberal feminists might appreciate PSAs? parallel potential to create incentives for more equal distribution of homemaking and wage labor. PSAs also serve the interests of radical feminism b","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"77 1","pages":"17"},"PeriodicalIF":1.6,"publicationDate":"1998-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186080","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 : 1997-12-01DOI: 10.1093/acprof:oso/9780199206490.003.0003
B. Leiter
I. Introduction Considering the enormous influence Legal Realism has exercised upon American law and legal education over the last sixty years, and considering, too, as the cliche has it, that "we are all realists now," it remains surprising how inadequate-indeed inaccurate-most descriptions of Realism turn out to be. Ronald Dworkin, for example, claims that according to Realism, "judges actually decide cases according to their own political or moral tastes, and then choose an appropriate legal rule as a rationalization."1 Dworkin is echoed by Judge Jon Newman of the Second Circuit who asserts that Realists believe that "the judge simply selects the result that best comports with personal values and then enlists, sometimes brutally, whatever doctrines arguably support the result."2 John Hart Ely says the Realists "'discovered' that judges were human and therefore were likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasoning. "3 Steven Burton remarks that it is often "claimed, in legal realist fashion, that judges decide whatever they want to decide when the law is unclear (and it is often or always unclear)."4 Fred Schauer describes Realists as holding "that legal decision-makers are largely unconstrained by forces external to their own decision-making preferences. "5 And Robert Satter, a Connecticut trial judge, says in a recent popular work that Realists "assert that a judge exercises unbridled discretion in making decisions; he works backward from conclusion to principles and uses principles only to rationalize his conclusions. [Realists] consider the judge's values all-important. "6 Glosses on Realism like these are surely familiar to every student of the literature. But it may help to recast them in a slightly more systematic form to understand precisely what picture of Realism so powerfully grips the legal imagination. According to what I will call the "Received View," Legal Realism is fundamentally: (1) a descriptive theory about the nature of judicial decision, according to which, (2) judges exercise unfettered discretion, in order (3) to reach results based on their personal tastes and values, which (4) they then rationalize after-the-fact with appropriate legal rules and reasons. Like much "conventional wisdom," the Received View of Realism has an element of truth: the core of Realism is, indeed, a certain sort of descriptive claim about how judges decide cases, according to which judges rationalize, after the fact, decisions reached on other grounds. But it is, or so I shall argue, quite misleading to think of Realism as committed to the claim that judges exercise "unfettered" discretion7 or that they make choices based on "personal" values and tastes. That Realism has been saddled with these claims-what I shall call the claims of "Judicial Volition" and "Judicial Idiosyncrasy"-has contributed in no small measure to the frequent reduction of Realism to a whipping boy fo
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