Ours is an era of fraying constitutional norms. Norms that long governed the conduct of public officials have in recent years been violated by the White House, in Congress, and in the states. In the face of threats to constitutional norms, some have proposed codifying constitutional norms—that is, enacting their content into law. This Article examines the dynamics around codifying constitutional norms. It begins by showing that codification efforts face both practical and legal barriers. Practically, it can be difficult to define the precise contours of a constitutional norm and to codify a norm in a polarized political environment. Legally, constitutional law precludes Congress from codifying many of the most important constitutional norms. The Article then shows that codifying constitutional norms can have significant potential benefits, but that codification is not without costs. Codification holds the promise of promoting greater compliance with norms, typically by making them legally enforceable, but codification can have unintended consequences and in some cases may actually weaken norms. Codification can clarify and stabilize norms that might otherwise be vague or unstable, but codification also risks ossifying norms by denying them the ability to evolve. And codifying a norm can shift power among institutional actors, including by giving courts a role where they previously had none. Finally, the Article contends that understanding the benefits and costs of codification provides insight into when and how codification is appropriate. The desirability of codification will depend on the institution doing the codifying and the legal vehicle being used for codification. Codification will be more appropriate for rule-like norms than for standard-like norms. Codification through soft law or rules internal to a branch of government may sometimes be superior to codification via a judicially enforceable statute. And norms can be protected indirectly, rather than through directly codifying their content. Even when codifying norms is possible and advisable, however, codification cannot serve as a substitute for better politics.
{"title":"Codifying Constitutional Norms","authors":"Jon B. Gould","doi":"10.2139/SSRN.3769465","DOIUrl":"https://doi.org/10.2139/SSRN.3769465","url":null,"abstract":"Ours is an era of fraying constitutional norms. Norms that long governed the conduct of public officials have in recent years been violated by the White House, in Congress, and in the states. In the face of threats to constitutional norms, some have proposed codifying constitutional norms—that is, enacting their content into law. \u0000 \u0000This Article examines the dynamics around codifying constitutional norms. It begins by showing that codification efforts face both practical and legal barriers. Practically, it can be difficult to define the precise contours of a constitutional norm and to codify a norm in a polarized political environment. Legally, constitutional law precludes Congress from codifying many of the most important constitutional norms. \u0000 \u0000The Article then shows that codifying constitutional norms can have significant potential benefits, but that codification is not without costs. Codification holds the promise of promoting greater compliance with norms, typically by making them legally enforceable, but codification can have unintended consequences and in some cases may actually weaken norms. Codification can clarify and stabilize norms that might otherwise be vague or unstable, but codification also risks ossifying norms by denying them the ability to evolve. And codifying a norm can shift power among institutional actors, including by giving courts a role where they previously had none. \u0000 \u0000Finally, the Article contends that understanding the benefits and costs of codification provides insight into when and how codification is appropriate. The desirability of codification will depend on the institution doing the codifying and the legal vehicle being used for codification. Codification will be more appropriate for rule-like norms than for standard-like norms. Codification through soft law or rules internal to a branch of government may sometimes be superior to codification via a judicially enforceable statute. And norms can be protected indirectly, rather than through directly codifying their content. Even when codifying norms is possible and advisable, however, codification cannot serve as a substitute for better politics.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"29 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83359353","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}
As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court? This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decision making for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive. Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.
{"title":"Precedent, Three-Judge District Courts, and the Law of Democracy","authors":"Joshua A. Douglas, Michael E. Solimine","doi":"10.2139/SSRN.3099771","DOIUrl":"https://doi.org/10.2139/SSRN.3099771","url":null,"abstract":"As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court? \u0000 \u0000This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decision making for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive. \u0000 \u0000Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"120 1","pages":"413"},"PeriodicalIF":2.0,"publicationDate":"2019-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88306700","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}
As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.
{"title":"Privatizing Criminal Procedure","authors":"John D. King","doi":"10.2139/SSRN.3156230","DOIUrl":"https://doi.org/10.2139/SSRN.3156230","url":null,"abstract":"As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"4 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2018-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88763840","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 American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence). Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia. However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings. Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline. I examine additional data from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.
{"title":"The Decline of the Virginia (and American) Death Penalty","authors":"Brandon L. Garrett","doi":"10.2139/SSRN.2674604","DOIUrl":"https://doi.org/10.2139/SSRN.2674604","url":null,"abstract":"The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in decades. Public support for the death penalty has declined. More states have abolished the death penalty or imposed de facto moratoria. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty. Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence). Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004. The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia. However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings. Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline. I examine additional data from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"51 1","pages":"661"},"PeriodicalIF":2.0,"publicationDate":"2017-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83246439","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}
Humans and the effects of their activities now substantially influence the entire planet, including its oceans, its climate, its atmosphere, and its lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period, the Anthropocene. The Anthropocene will surely have substantial effects on human societies and economies, and law will be no exception. The Anthropocene is the product of the aggregation of millions and billions of individual human actions, and human effects on global systems are exponentially increasing because of growing technology and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the major changes in oceans, climate, biodiversity, and other critical functions that human society depends upon. Human responses to the Anthropocene will ineluctably lead to greater government involvement in a wide range of human activities, and constant updating of government laws and regulations to respond to new challenges. The result will be pressures on a wide range of legal doctrines in public and private law, including torts, property, constitutional law, administrative law, and criminal law. These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries. Just as with those legal changes, the legal changes of the Anthropocene will put pressure on normative commitments at the heart of American law, including that classical liberal paradigm that government intrusion into individual action should be the exception, rather than the norm. Managing the impacts of these legal changes will be a key challenge for the legal system in the next century.
{"title":"Law in the Anthropocene Epoch","authors":"Eric Biber","doi":"10.2139/SSRN.2834037","DOIUrl":"https://doi.org/10.2139/SSRN.2834037","url":null,"abstract":"Humans and the effects of their activities now substantially influence the entire planet, including its oceans, its climate, its atmosphere, and its lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period, the Anthropocene. The Anthropocene will surely have substantial effects on human societies and economies, and law will be no exception. The Anthropocene is the product of the aggregation of millions and billions of individual human actions, and human effects on global systems are exponentially increasing because of growing technology and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the major changes in oceans, climate, biodiversity, and other critical functions that human society depends upon. Human responses to the Anthropocene will ineluctably lead to greater government involvement in a wide range of human activities, and constant updating of government laws and regulations to respond to new challenges. The result will be pressures on a wide range of legal doctrines in public and private law, including torts, property, constitutional law, administrative law, and criminal law. These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries. Just as with those legal changes, the legal changes of the Anthropocene will put pressure on normative commitments at the heart of American law, including that classical liberal paradigm that government intrusion into individual action should be the exception, rather than the norm. Managing the impacts of these legal changes will be a key challenge for the legal system in the next century.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"6 1","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2016-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85389387","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}
Legal scholars have long assumed that the 1866 Civil Rights Act protected rights uniquely associated with national citizenship. Accordingly, most scholars assume that the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause provided after-the-fact authority for the 1866 Civil Rights Act. A close look at the original sources, however, reveals that key players in the Thirty-Ninth Congress viewed the Civil Rights Act as protecting rights associated with the Fifth Amendment’s Due Process Clause. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly viewed the Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Bingham opposed the Civil Rights Act, however, because he believed an amendment must first be adopted granting Congress power to enforce the equal rights of due process. Following the ratification of the Fourteenth Amendment, Congress (now with Bingham’s support) repassed the Civil Rights Act and extended the majority of its protections to “all persons” — an extension authorized by the “all persons” Due Process Clause but not by the “citizens only” Privileges or Immunities Clause. Understanding the original link between the 1866 Civil Rights Act and the 1868 Due Process Clause requires rethinking a number of commonly accepted assumptions about the original Fourteenth Amendment. Much of the current Supreme Court’s “equal laws” doctrine may be supported by the original meaning of the Due Process Clause, while the Equal Protection Clause itself may communicate an altogether different principle of “equal protection.” Disentangling the Privileges or Immunities Clause from the Civil Rights Act also supports reading the Privileges or Immunities Clause as protecting the nationally enumerated rights of citizenship and not the unenumerated subjects of state-level civil rights now covered by the Due Process and Equal Protection Clauses.
{"title":"Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act","authors":"Kurt T. Lash","doi":"10.2139/SSRN.2801688","DOIUrl":"https://doi.org/10.2139/SSRN.2801688","url":null,"abstract":"Legal scholars have long assumed that the 1866 Civil Rights Act protected rights uniquely associated with national citizenship. Accordingly, most scholars assume that the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause provided after-the-fact authority for the 1866 Civil Rights Act. A close look at the original sources, however, reveals that key players in the Thirty-Ninth Congress viewed the Civil Rights Act as protecting rights associated with the Fifth Amendment’s Due Process Clause. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly viewed the Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Bingham opposed the Civil Rights Act, however, because he believed an amendment must first be adopted granting Congress power to enforce the equal rights of due process. Following the ratification of the Fourteenth Amendment, Congress (now with Bingham’s support) repassed the Civil Rights Act and extended the majority of its protections to “all persons” — an extension authorized by the “all persons” Due Process Clause but not by the “citizens only” Privileges or Immunities Clause. Understanding the original link between the 1866 Civil Rights Act and the 1868 Due Process Clause requires rethinking a number of commonly accepted assumptions about the original Fourteenth Amendment. Much of the current Supreme Court’s “equal laws” doctrine may be supported by the original meaning of the Due Process Clause, while the Equal Protection Clause itself may communicate an altogether different principle of “equal protection.” Disentangling the Privileges or Immunities Clause from the Civil Rights Act also supports reading the Privileges or Immunities Clause as protecting the nationally enumerated rights of citizenship and not the unenumerated subjects of state-level civil rights now covered by the Due Process and Equal Protection Clauses.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"120 1","pages":"1389"},"PeriodicalIF":2.0,"publicationDate":"2016-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72612604","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}
Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Lack of agent accountability encourages the patterns of fraud that caused the financial crisis in which forty-five percent of the world’s wealth disappeared, and which continue to be repeated. The article reveals how making the corporate form more opaque has led to the destruction of corporate conspiracy charges for individuals and now the implosion of securities law as a method of disciplining agents. The article concludes with a call for both watching the paper dragon and the need to track the dancers who move its feet.
{"title":"Paper Dragon Thieves","authors":"J. Nelson","doi":"10.2139/SSRN.2739013","DOIUrl":"https://doi.org/10.2139/SSRN.2739013","url":null,"abstract":"Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Lack of agent accountability encourages the patterns of fraud that caused the financial crisis in which forty-five percent of the world’s wealth disappeared, and which continue to be repeated. The article reveals how making the corporate form more opaque has led to the destruction of corporate conspiracy charges for individuals and now the implosion of securities law as a method of disciplining agents. The article concludes with a call for both watching the paper dragon and the need to track the dancers who move its feet.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"64 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2016-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76351847","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}
A fanciful trademark – a made-up word like SWIFFER for mops, or XEROX for photocopiers – is presumed neither to describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (‘tree’) and the thing signified by the word (‘a large woody plant’). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use, and receives broader protection against infringement than other categories of trademarks. Research into sound symbolism challenges the theory of linguistic arbitrariness and thus the accepted gap between fanciful mark and product. Multiple studies demonstrate the existence of sound symbolism – connections between the individual sounds that constitute a given word and the meanings that a reader or listener ascribes to that word. Marketers often consider sound symbolism when coining a fanciful mark. Consumers are more likely to favor a new trademark when trademark meaning links to product type, even if they are not conscious of the link. Courts often assume that adopting a mark similar to a fanciful mark is evidence of bad faith, but a new entrant might reasonably desire to use sounds that convey product information. Overprotecting fanciful trademarks could thus impose unjustified costs on competitors, at least when sound symbolism connects the mark to the product offered for sale. Broad protection for fanciful marks that benefit from sound symbolism may therefore be misguided. Courts should instead engage in a more nuanced inquiry, accounting for sound symbolism when assessing the validity and scope of a fanciful mark.
{"title":"Are Trademarks Ever Fanciful","authors":"J. Linford","doi":"10.2139/SSRN.2732582","DOIUrl":"https://doi.org/10.2139/SSRN.2732582","url":null,"abstract":"A fanciful trademark – a made-up word like SWIFFER for mops, or XEROX for photocopiers – is presumed neither to describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (‘tree’) and the thing signified by the word (‘a large woody plant’). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use, and receives broader protection against infringement than other categories of trademarks. Research into sound symbolism challenges the theory of linguistic arbitrariness and thus the accepted gap between fanciful mark and product. Multiple studies demonstrate the existence of sound symbolism – connections between the individual sounds that constitute a given word and the meanings that a reader or listener ascribes to that word. Marketers often consider sound symbolism when coining a fanciful mark. Consumers are more likely to favor a new trademark when trademark meaning links to product type, even if they are not conscious of the link. Courts often assume that adopting a mark similar to a fanciful mark is evidence of bad faith, but a new entrant might reasonably desire to use sounds that convey product information. Overprotecting fanciful trademarks could thus impose unjustified costs on competitors, at least when sound symbolism connects the mark to the product offered for sale. Broad protection for fanciful marks that benefit from sound symbolism may therefore be misguided. Courts should instead engage in a more nuanced inquiry, accounting for sound symbolism when assessing the validity and scope of a fanciful mark.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"40 1","pages":"731"},"PeriodicalIF":2.0,"publicationDate":"2016-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85851985","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}
Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings.We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.
{"title":"The Votes of Other Judges","authors":"E. Posner, Adrian Vermeule","doi":"10.2139/SSRN.2723957","DOIUrl":"https://doi.org/10.2139/SSRN.2723957","url":null,"abstract":"Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings.We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"63 1","pages":"159"},"PeriodicalIF":2.0,"publicationDate":"2016-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83233901","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}
Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support non-legal but obligatory norms of proper governmental behavior, something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.
学者们越来越关注建国后历史实践的相关性，以辨别国会和行政部门之间的权力分立，最高法院最近认可了这种实践的相关性。然而，历史实践与区分政治部门和联邦司法机构之间的权力分立的相关性——即本文所称的“司法权力分立”——却很少受到关注。正如文章所解释的那样，历史实践可能有两种方式与司法三权分立相关。首先，这种做法可能会被援引为对“历史解释”的诉求，即这种做法会影响宪法的内容。其次，历史实践可能会被用来支持非法律但必须遵守的政府行为规范，联邦理论家称之为“宪法惯例”。为了说明解释和惯例如何丰富了我们对司法三权分立的理解，该条考虑了国会“包装”最高法院的权力，以及国会“剥夺”最高法院上诉管辖权的权力。本文表明，尽管1937年富兰克林·罗斯福的法院填塞计划的失败几乎完全是从政治角度来研究的，但对该计划的许多批评都涉及对历史粉饰的主张;其他批评包括诉诸宪法公约;还有一些人模糊了这两个类别之间的界限，或者在两者之间来回切换。在1957年至1958年的国会辩论中，以及在20世纪80年代初的司法部内部，都出现了惊人相似的主题，即国会是否有权通过限制最高法院的上诉管辖权来阻止最高法院裁决宪法问题。根据此前未被发现或在文献中讨论过的行政部门内部文件，这篇文章还显示，首席大法官约翰·罗伯茨(John Roberts)在司法部工作期间，与法律顾问办公室负责人西奥多·奥尔森(Theodore Olson)辩论时，未能说服司法部长威廉·弗兰奇·史密斯(William French Smith)相信，国会拥有剥夺最高法院上诉管辖权的广泛权力。然后，文章更广泛地反映了光泽和惯例对司法三权分立的影响。
{"title":"Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers","authors":"C. Bradley, Neil S. Siegel","doi":"10.2139/SSRN.2721346","DOIUrl":"https://doi.org/10.2139/SSRN.2721346","url":null,"abstract":"Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support non-legal but obligatory norms of proper governmental behavior, something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"17 1","pages":"255"},"PeriodicalIF":2.0,"publicationDate":"2016-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80295339","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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