Under the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. This Article argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. It illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, the Article proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.
根据严格判例原则，当法院在行政机关之前解释成文法时，即使国会已将主要解释权授予行政机关，司法解释也成为具有约束力的先例。本文认为，最高法院在解释行政法规时坚持这种严格的先例规则，破坏了机构行政的三权分立正当性，并危及有效的决策。它说明了最高法院在美国诉米德案(United States v. Mead)中的判决如何限制了值得司法尊重的机构解释类型，从而极大地增加了法院自行解释法规的机会。针对法官征用机构自由裁量权的能力增强所造成的宪法与规范脱节，本文提出了一种临时先例模式，作为严格判例的替代方案。这种方法基于联邦法院对州法律问题裁决的联邦制模式，只有在管理机构对自己的法律做出有约束力的解释之前，才会对监管法规的合理司法结构给予凝视决定效应。
{"title":"Provisional Precedent: Protecting Flexibility in Administrative Policymaking","authors":"K. Bamberger","doi":"10.2139/SSRN.363120","DOIUrl":"https://doi.org/10.2139/SSRN.363120","url":null,"abstract":"Under the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. This Article argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. It illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, the Article proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2002-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82380484","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}
Voting Technology and Democracy, 77 N.Y.U. L. Rev. 625 (2002), examines a phenomenon that I term the "voting-technology divide." The "divide" was caused by the deployment of election technology in November 2000 with better and worse levels of feedback to voters. Through an analysis of data from the contested Florida election of November 2000, this article demonstrates the critical importance of feedback in informing voters whether the technology they use to vote will validate their ballots according to their intent -- an advantage I find to have been distributed on unequal terms. In this article, I also examine the various judicial opinions in the litigation following the Florida election and argue that they differed most dramatically in their embrace of competing epistemologies of technology. Finally, I evaluate the ongoing efforts to reform the unequal distribution of voting technology in the United States. Some efforts at litigation and legislation have promise, but in many instances they are stalled, and in many others they exhibit shortcomings that would leave the "voting technology divide" in place for future elections.
{"title":"Voting Technology and Democracy","authors":"P. Schwartz","doi":"10.2139/SSRN.325382","DOIUrl":"https://doi.org/10.2139/SSRN.325382","url":null,"abstract":"Voting Technology and Democracy, 77 N.Y.U. L. Rev. 625 (2002), examines a phenomenon that I term the \"voting-technology divide.\" The \"divide\" was caused by the deployment of election technology in November 2000 with better and worse levels of feedback to voters. Through an analysis of data from the contested Florida election of November 2000, this article demonstrates the critical importance of feedback in informing voters whether the technology they use to vote will validate their ballots according to their intent -- an advantage I find to have been distributed on unequal terms. In this article, I also examine the various judicial opinions in the litigation following the Florida election and argue that they differed most dramatically in their embrace of competing epistemologies of technology. Finally, I evaluate the ongoing efforts to reform the unequal distribution of voting technology in the United States. Some efforts at litigation and legislation have promise, but in many instances they are stalled, and in many others they exhibit shortcomings that would leave the \"voting technology divide\" in place for future elections.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2002-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83735022","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 thought of a large biotech company holding an exclusive right to research and manipulate human genetic material provokes many reactions--from moral revulsion to enthusiasm about the possibilities for therapeutic advancement. While most agree that such a right must exist, debate continues over the appropriate extent of its entitlements and preclusive effects. In this Article, Professor Donna Gitter addresses this multidimensional problem of patents on human deoxyribonucleic acid (DNA) sequences in the United States and the European Union. Professor Gitter chronicles not only the development of the law in this area, but also the array of policy and moral arguments that proponents and detractors of such patents raise. She emphasizes the specific issue of patents on DNA sequences whose function has not fully been identified, and the chilling effect these patents may have on beneficial research. From this discussion emerges a troubling realization: While the legal framework governing "life patents" may be similar in the United States and the European Union, the public perceptions and attitudes toward them are not. Professor Gitter thus proposes a dual reform: a compulsory licensing regime requiring holders of DNA sequence patents to license them to commercial researchers, in return for a royalty keyed to the financial success of the product that the licensee develops; and an experimental-use exemption from this regime for government and nonprofit researchers.
{"title":"International conflicts over patenting human DNA sequences in the United States and the European Union: an argument for compulsory licensing and a fair-use exemption.","authors":"D M Gitter","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The thought of a large biotech company holding an exclusive right to research and manipulate human genetic material provokes many reactions--from moral revulsion to enthusiasm about the possibilities for therapeutic advancement. While most agree that such a right must exist, debate continues over the appropriate extent of its entitlements and preclusive effects. In this Article, Professor Donna Gitter addresses this multidimensional problem of patents on human deoxyribonucleic acid (DNA) sequences in the United States and the European Union. Professor Gitter chronicles not only the development of the law in this area, but also the array of policy and moral arguments that proponents and detractors of such patents raise. She emphasizes the specific issue of patents on DNA sequences whose function has not fully been identified, and the chilling effect these patents may have on beneficial research. From this discussion emerges a troubling realization: While the legal framework governing \"life patents\" may be similar in the United States and the European Union, the public perceptions and attitudes toward them are not. Professor Gitter thus proposes a dual reform: a compulsory licensing regime requiring holders of DNA sequence patents to license them to commercial researchers, in return for a royalty keyed to the financial success of the product that the licensee develops; and an experimental-use exemption from this regime for government and nonprofit researchers.</p>","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2001-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22380819","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}
Mr. Sidak and Professor Spulber extend here the analysis in Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review. They respond to comments and criticisms raised not only by Professors Baumol and Merrill, but also by Judge Williams and Professor Williamson in their Comments published last year. Sidak and Spulber begin by exploring the constitutional limitations on the government's ability to redefine the public purpose to which a regulated utility has dedicated its private property. Then, the authors examine whether the government has made givings that implicitly compensate the regulated firm for its diminution in value owing to the imposition of policies mandating network unbundling at regulated prices. Sidak and Spulber refine the limiting principles for the recovery of stranded costs that they articulated in their earlier article and show how those principles reconcile with the actual treatment of losses from deregulation in disparate industries. Next, they expose the economic fallacies in the notion of forward-looking costs as that term has been used by the Federal Communications Commission and state public utility commissions to set prices for mandatory network access under the Telecommunications Act of 1996. The authors analyze the Supreme Courts 1996 decision in United States v. Winstar Corp. and argue that the reasoning employed by seven Justices in that case comports not only with earlier decisions of the Court construing the regulatory contract with public utilities, but also with the contemporary economic analysis of why the regulatory contract is essential and efficient. Sidak and Spulber explain how transition bonds may solve the stranded cost conundrum in the telecommunications and electric power industries by permitting the securitization of stranded costs in a manner that restores investors' faith in the state's ability to make credible commitments. Finally, the authors examine the significance of the Eighth Circuit's 1997 decision in Iowa Utilities Board v. FCC for the debate over deregulatory takings and breach of the regulatory contract.
{"title":"Givings, Takings, and the Fallacy of Forward-Looking Costs","authors":"J. Sidak, Daniel F. Spulber","doi":"10.2139/SSRN.257322","DOIUrl":"https://doi.org/10.2139/SSRN.257322","url":null,"abstract":"Mr. Sidak and Professor Spulber extend here the analysis in Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review. They respond to comments and criticisms raised not only by Professors Baumol and Merrill, but also by Judge Williams and Professor Williamson in their Comments published last year. Sidak and Spulber begin by exploring the constitutional limitations on the government's ability to redefine the public purpose to which a regulated utility has dedicated its private property. Then, the authors examine whether the government has made givings that implicitly compensate the regulated firm for its diminution in value owing to the imposition of policies mandating network unbundling at regulated prices. Sidak and Spulber refine the limiting principles for the recovery of stranded costs that they articulated in their earlier article and show how those principles reconcile with the actual treatment of losses from deregulation in disparate industries. Next, they expose the economic fallacies in the notion of forward-looking costs as that term has been used by the Federal Communications Commission and state public utility commissions to set prices for mandatory network access under the Telecommunications Act of 1996. The authors analyze the Supreme Courts 1996 decision in United States v. Winstar Corp. and argue that the reasoning employed by seven Justices in that case comports not only with earlier decisions of the Court construing the regulatory contract with public utilities, but also with the contemporary economic analysis of why the regulatory contract is essential and efficient. Sidak and Spulber explain how transition bonds may solve the stranded cost conundrum in the telecommunications and electric power industries by permitting the securitization of stranded costs in a manner that restores investors' faith in the state's ability to make credible commitments. Finally, the authors examine the significance of the Eighth Circuit's 1997 decision in Iowa Utilities Board v. FCC for the debate over deregulatory takings and breach of the regulatory contract.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2001-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88111010","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}
There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. The default rule can create an endowment effect, making employees value certain rights more simply because they have been granted such rights in the first instance. Similarly, the default rule for savings plans, set by employers or law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead employee confusion or bargaining strategy.
{"title":"Switching the Default Rule","authors":"C. Sunstein","doi":"10.2139/SSRN.255993","DOIUrl":"https://doi.org/10.2139/SSRN.255993","url":null,"abstract":"There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. The default rule can create an endowment effect, making employees value certain rights more simply because they have been granted such rights in the first instance. Similarly, the default rule for savings plans, set by employers or law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead employee confusion or bargaining strategy.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75016475","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 analyzes the voting rules of Chapter 11 using models from noncooperative game theory. Prior work has relied mainly on a model of bargaining between the debtor and a single creditor with perfect information. We expand on this work by considering two-party bargaining with imperfect information, and bargaining (with perfect and imperfect information) among a single debtor and multiple creditors. In addition, prior work has focused on explaining the role of the exclusivity period, the absolute priority rule, and the liquidation floor in Chapter 11 bargaining. We also consider the role of majoritarianism and supermajoritarianism, bicameralism, and classification, and the desirability of allowing creditors to purchase claims from each other.
{"title":"A Positive Theory of Chapter 11","authors":"Kevin A. Kordana, E. Posner","doi":"10.2139/SSRN.137897","DOIUrl":"https://doi.org/10.2139/SSRN.137897","url":null,"abstract":"This paper analyzes the voting rules of Chapter 11 using models from noncooperative game theory. Prior work has relied mainly on a model of bargaining between the debtor and a single creditor with perfect information. We expand on this work by considering two-party bargaining with imperfect information, and bargaining (with perfect and imperfect information) among a single debtor and multiple creditors. In addition, prior work has focused on explaining the role of the exclusivity period, the absolute priority rule, and the liquidation floor in Chapter 11 bargaining. We also consider the role of majoritarianism and supermajoritarianism, bicameralism, and classification, and the desirability of allowing creditors to purchase claims from each other.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"1998-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82834636","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 : 1998-01-01DOI: 10.4135/9781071800942.n30
R. Posner
{"title":"Against Constitutional Theory","authors":"R. Posner","doi":"10.4135/9781071800942.n30","DOIUrl":"https://doi.org/10.4135/9781071800942.n30","url":null,"abstract":"","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83131297","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}
Over the past century, as the regulatory state steadily expanded its reach, courts frequently addressed claims that regulatory actions amounted to an unconstitutional taking. Recently, however, legislation in the telecommunications and electric power industries have brought deregulatory concerns to the fore. In this landmark Article, Mr. Sidak and Professor Spulber present the first detailed analysis of the interaction between the Takings Clause, deregulation, network pricing, and contract law. In the typical case of regulated industries, firms and their investors agree to bear considerable incumbent burdens in exchange for a regulated rate of return. Sidak and Spulber first demonstrate that this arrangement represents a regulatory contract and find that recent deregulatory measures constitute breach. The authors then argue that, whether or not a regulatory contract in fact exists, recent mandatory unbundling in the electric power industry and open-access regulation in the telecommunications field effectuate a taking without just compensation. Finally, relying on concepts such as investment-backed expectations and the efficient component-pricing rule, the authors not only demonstrate that damages would be equivalent under either contract or takings theory, but also warn that governments could face enormous liability for their deregulatory measures.
{"title":"Deregulatory takings and breach of the regulatory contract","authors":"J. Sidak, Daniel F. Spulber","doi":"10.2139/SSRN.257311","DOIUrl":"https://doi.org/10.2139/SSRN.257311","url":null,"abstract":"Over the past century, as the regulatory state steadily expanded its reach, courts frequently addressed claims that regulatory actions amounted to an unconstitutional taking. Recently, however, legislation in the telecommunications and electric power industries have brought deregulatory concerns to the fore. In this landmark Article, Mr. Sidak and Professor Spulber present the first detailed analysis of the interaction between the Takings Clause, deregulation, network pricing, and contract law. In the typical case of regulated industries, firms and their investors agree to bear considerable incumbent burdens in exchange for a regulated rate of return. Sidak and Spulber first demonstrate that this arrangement represents a regulatory contract and find that recent deregulatory measures constitute breach. The authors then argue that, whether or not a regulatory contract in fact exists, recent mandatory unbundling in the electric power industry and open-access regulation in the telecommunications field effectuate a taking without just compensation. Finally, relying on concepts such as investment-backed expectations and the efficient component-pricing rule, the authors not only demonstrate that damages would be equivalent under either contract or takings theory, but also warn that governments could face enormous liability for their deregulatory measures.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"1996-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91277348","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}
Modern technology has wreaked havoc on conventional and legal notions of parenthood For example, the traditional legal presumption granting parental rights to a child's biological mother seems at least questionable when the biological mother differs from the intended mother. As a resul courts employing traditional constitutional and family law doctrines have not adequately sorted out the claims of biological, gestational, and intended parents In this Article Professor Hill argues that the claims of those who first intend to have a child should prevail over those who assert parental rights on the basis of a biological or gestational relation. Such a view, he argues, is consistent with existing case law on the constitutional rights to procreation and privacy and supported by moral theory and modern scientific evidence
{"title":"What does it mean to be a \"parent\"? The claims of biology as the basis for parental rights.","authors":"J. Hill","doi":"10.4324/9781315090085-3","DOIUrl":"https://doi.org/10.4324/9781315090085-3","url":null,"abstract":"Modern technology has wreaked havoc on conventional and legal notions of parenthood For example, the traditional legal presumption granting parental rights to a child's biological mother seems at least questionable when the biological mother differs from the intended mother. As a resul courts employing traditional constitutional and family law doctrines have not adequately sorted out the claims of biological, gestational, and intended parents In this Article Professor Hill argues that the claims of those who first intend to have a child should prevail over those who assert parental rights on the basis of a biological or gestational relation. Such a view, he argues, is consistent with existing case law on the constitutional rights to procreation and privacy and supported by moral theory and modern scientific evidence","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"1991-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87619731","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 : 1986-01-01DOI: 10.4324/9780429500480-18
E. Schneider
{"title":"The Dialectic of Rights and Politics: Perspectives from the Women’s Movement [1986]","authors":"E. Schneider","doi":"10.4324/9780429500480-18","DOIUrl":"https://doi.org/10.4324/9780429500480-18","url":null,"abstract":"","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"1986-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80021770","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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