Virginia Law Review最新文献

The God Cure: Spirituality as Therapy. 上帝的治疗：作为疗法的精神疗法》（The God Cure: Spirituality as Therapy）。

2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2022-09-01 eCollection Date: 2022-01-01 DOI: 10.1093/schizbullopen/sgac057

引用次数: 0

Designing Business Forms to Pursue Social Goals 设计商业形式以追求社会目标

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2020-06-05 DOI: 10.2139/SSRN.3369354

O. Eldar

The long-standing debate about the purpose and role of business firms has recently regained momentum. Business firms face growing pressure to pursue social goals and benefit corporation statutes proliferate across many U.S. states. This trend is largely based on the idea that firms increase long-term shareholder value when they contribute (or appear to contribute) to society. Contrary to this trend, this Article argues that the pressing issue is whether policies to create social impact actually generate value for third-party beneficiaries—rather than for shareholders. Because it is difficult to measure social impact with precision, the design of legal forms for firms that pursue social missions should incorporate organizational structures that generate both the incentives and competence to pursue such missions effectively. Specifically, firms that have a commitment to transacting with different types of disadvantaged groups demonstrate these attributes and should thus serve as the basis for designing legal forms. While firms with such a commitment may be created using a variety of control and contractual mechanisms, the related transaction costs tend to be very high. This Article develops a social enterprise legal form that draws on the legal regime for community development financial institutions (CDFIs) and European legal forms for work-integration social enterprises (WISEs). This form would certify to investors, consumers, and governments that designated firms have a commitment as social enterprises. By obviating the need for costly social impact measurement, this form would facilitate the provision of subsidy-donations to social enterprises from multiple groups, particularly investors (through below-market investment) and consumers (via premiums over market prices). Thus, this social enterprise form would be to altruistic investors and consumers what the nonprofit form is to donors. Moreover, the proposal could facilitate the flow of investments by foundations in social enterprises (known as program-related investments, “PRIs”) because it would help foundations verify the social impact of their investees. In addition, by giving subsidy-providers greater assurance that social enterprises pursue social missions effectively, the proposed legal form could facilitate public markets for social enterprises.

关于商业公司的目的和作用的长期争论最近又重新抬头。商业公司面临着越来越大的追求社会目标和利益的压力，公司法规在美国许多州激增。这种趋势很大程度上是基于这样一种观点:当企业对社会做出贡献(或表现出贡献)时，它们会增加长期股东价值。与这一趋势相反，本文认为，紧迫的问题是，创造社会影响的政策是否实际上为第三方受益人创造了价值，而不是为股东创造了价值。由于很难精确地衡量社会影响，追求社会使命的公司的法律形式的设计应该包含能够产生有效追求这种使命的激励和能力的组织结构。具体地说，承诺与不同类型的弱势群体进行交易的公司表现出这些属性，因此应作为设计法律形式的基础。虽然可以利用各种控制和契约机制创建具有这种承诺的公司，但相关的交易成本往往非常高。本文借鉴了社区发展金融机构(CDFIs)的法律制度和欧洲工作一体化社会企业(WISEs)的法律形式，开发了一种社会企业的法律形式。该表格将向投资者、消费者和政府证明，指定公司有社会企业的承诺。由于不需要进行昂贵的社会影响评估，这种形式将有利于向社会企业提供补贴——来自多个群体的捐赠，尤其是投资者(通过低于市场的投资)和消费者(通过高于市场价格的溢价)。因此，这种社会企业形式对于无私的投资者和消费者来说，就像非营利形式对于捐赠者一样重要。此外，该提案可以促进基金会对社会企业的投资流动(称为项目相关投资，简称pri)，因为它可以帮助基金会核实其投资对象的社会影响。此外，拟议的法律形式使资助机构更确信社会企业能有效地履行社会使命，从而为社会企业的公开市场提供便利。

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引用次数: 7

Isolated Lambdoid Craniosynostosis. 孤立的羔羊状颅畸形。

IF 0.9 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2019-11-01 DOI: 10.1097/SCS.0000000000006058

Vedant Borad, Emma J Cordes, Katie M Liljeberg, Tonye S Sylvanus, Paul K Lim, Robert J Wood

Introduction: Lambdoid craniosynostosis is an extremely rare anomaly in which there is premature fusion of one or both lambdoid sutures. The mainstay of treatment is surgical intervention, for which various procedures have been described, but there is a paucity of data on long-term outcomes. This study examines the long-term outcomes in the surgical management of this challenging condition, showing that accurate diagnosis and careful planning can lead to safe and consistent results.

Materials and methods: A retrospective chart review was performed looking at all cases of isolated lambdoid craniosynostosis treated with surgical intervention by the senior author from 1999 to 2016. Data collected included gender, age at diagnosis, age at surgery, length of follow up, method of diagnosis, side of affected suture, pre-operative and post-operative physical exam findings, surgical technique, complications, re-operation rate, and associated torticollis.

Results: Twenty-five patients (N = 25) were included in the study. All patients underwent posterior calvarial remodeling with/without barrel stave osteotomies and full thickness calvarial bone grafts. Mean length of follow up after operative intervention was 43.8 months (+/- 23.2 months). All patients were judged to have significantly improved head contour which was near-normal at conversational distance during post-operative follow up by the senior author. Residual plagiocephaly was present in 24% of patients. There were no major complications in this series. Reoperation rate was 8%. Seventy-six percent of patients also presented with torticollis, of which 37% had refractory torticollis that required sternocleidomastoid (SCM) release by the senior author.

Discussion: The authors present one of the largest series of operative cases of isolated lambdoid craniosynostosis to date. Our data show that with accurate diagnosis and careful planning, safe and consistent long-term results can be achieved with surgical intervention. A significant number of patients in our series also presented with concomitant torticollis. The authors recommend that all patients being evaluated for posterior plagiocephaly should also be evaluated for torticollis, because without recognition and intervention, patients may continue to have residual facial asymmetry and head shape abnormalities despite optimal surgical correction of the lambdoid synostosis.

简介羔状颅畸形是一种极为罕见的畸形，患者的一条或两条羔状缝会过早融合。治疗的主要方法是手术干预，目前已有多种手术方法，但有关长期疗效的数据却很少。本研究探讨了手术治疗这种具有挑战性的疾病的长期疗效，表明准确的诊断和周密的计划可以带来安全、一致的疗效：本研究对资深作者在 1999 年至 2016 年期间通过手术治疗的所有孤立性羊角颅畸形病例进行了回顾性病历审查。收集的数据包括性别、诊断年龄、手术年龄、随访时间、诊断方法、受影响缝线的一侧、术前和术后体检结果、手术技术、并发症、再次手术率以及相关的扭颈症：研究共纳入 25 名患者（N = 25）。所有患者都接受了后腓骨重塑术，同时进行/不进行桶状截骨和全厚度腓骨植骨。手术干预后的平均随访时间为 43.8 个月（+/- 23.2 个月）。资深作者在术后随访中认为，所有患者的头部轮廓均有明显改善，在对话距离内接近正常。24%的患者存在残余的颅后凸。该系列手术未出现重大并发症。再次手术率为 8%。76%的患者还伴有扭颈，其中37%为难治性扭颈，需要由资深作者进行胸锁乳突肌（SCM）松解术：讨论：作者展示了迄今为止最大的孤立性羊角瘤颅骨发育不良手术病例系列之一。我们的数据显示，通过准确诊断和精心策划，手术干预可以获得安全、稳定的长期效果。在我们的系列研究中，有相当多的患者同时伴有肢体扭转。作者建议，所有接受后方颅畸形评估的患者都应同时接受扭转颈的评估，因为如果不加以识别和干预，尽管羊角状突触得到了最佳的手术矫正，患者仍可能继续存在残留的面部不对称和头形异常。

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引用次数: 0

Unconstitutionally Illegitimate Discrimination 违反宪法的歧视

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2018-12-23 DOI: 10.2139/SSRN.3120413

Brandon L. Garrett

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the Executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that a legitimacy-focused approach towards constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.

当政府官员表达蔑视或歧视某个群体的意图时，可能会产生严重的宪法后果，但很少会被强加于人。在这篇文章中，我认为歧视动机是而且应该足以宣布政府行为违宪。其次，笔者认为其主要原因是对政府合法性的损害。虽然有些人认为，对故意歧视的关注是其危害，比如它的污名化效应，但我认为，重点不应该放在危害上，而应该放在它如何使政府失去合法性上。我提出了一个描述性的主张，即宪法学说在其大致轮廓上反映了一种基于合法性的观点。在平等保护的背景下，法院已经阐明了歧视性目标如何不是合法的国家利益。在行政行为方面，法院指出，如果没有合法和善意的理由，行政部门可能没有从国会授权采取行动的权力。法院没有做的是具体说明当锤子落下时会发生什么:意图如何使政府的政策制定失效，以及失效多长时间。以合法性为中心的方法可以抵消政府的决定，即使政府试图重新制定政策并提出新的理由。第三，我认为，我在本文中提出的以合法性为中心的宪法意图原则在规范上是可取的。这种方法确实激励了政府采取行动的不真实理由。然而，我认为利大于弊。即使是不真诚地表达不歧视也有实际的好处。相反，当政府发表歧视性言论时，这是歧视性动机的有力证据。在移民权利、投票权和宗教非建制等领域的故意歧视索赔的全国性诉讼期间，阐明违反宪法的非法意图的原则、成本和后果从未像现在这样重要。

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引用次数: 0

Sovereign Immunity and the Constitutional Text 主权豁免与宪法文本

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2017-03-01 DOI: 10.2139/SSRN.2714540

William Baude

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule, a “backdrop,” that is not directly incorporated into the Constitution but is shielded by the Constitution from most kinds of change.That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt the Court nearly overruled Hall, and its future hangs by a single vote. The backdrops theory suggests that Nevada v. Hall is rightly decided, consistent with modern doctrine, and should not be overruled.

尽管最高法院的现代主权豁免学说遭到了谴责，但有一种理论对这一学说是有道理的，也使其与宪法文本相一致。理论上，主权豁免是一种普通法规则，是一种“背景”，它没有直接纳入宪法，但受到宪法的保护，不受大多数变化的影响。这一理论对主权豁免的未来也具有重要意义。最高法院在内华达州诉霍尔案中的裁决认为，州主权豁免不必在另一个州的法院得到尊重。上一届，在特许经营税委员会诉凯悦酒店案中，法院几乎推翻了霍尔的裁决，霍尔的未来只剩下一票。背景理论表明，内华达诉霍尔案的判决是正确的，符合现代学说，不应被推翻。

引用次数: 3

Textualism and Statutory Precedents 文本主义与法定先例

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2017-02-19 DOI: 10.2139/SSRN.2724077

Anita S. Krishnakumar

On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial discretion, and the need to preserve the legitimacy of the Court as an institution. Yet, in practice, textualist jurists — at least at the Supreme Court level — have proved quite willing to abandon statutory stare decisis and to argue in favor of overruling established statutory precedents. Why? This paper advances a twofold thesis. First, it argues that textualism suffers from a “correct answer” mindset, which makes it especially difficult for its proponents to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. While others have noted that this tension between accuracy and stare decisis poses problems for textualists, they have tended to brush it off as a tension that also affects other interpretive theories and to insist that textualism can and does give way to statutory stare decisis as a matter of necessity. Second, and more importantly, this paper argues that textualist jurists tend to view statutory precedents that create a test for implementing a statute as different from more ordinary parsing-the-text statutory interpretation. That is, textualist jurists regard implementation-test precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test” exception to the heightened stare decisis protection typically afforded to statutory precedents.The paper begins by providing several examples of cases in which textualist Justices on the U.S. Supreme Court have rejected statutory stare decisis and voted to overturn a statutory precedent. The argument is largely descriptive but has significant theoretical and normative implications. In particular, the implementation-test insight suggests a new and previously unexplored explanation for the judicial treatment of congressional overrides and the shadow precedent phenomenon that some scholars have observed. The distinction between implementation tests and text-parsing statutory construction also highlights important and underappreciated differences between textualist and purposivist visions of the judicial role in statutory interpretation. In the end, the paper both supports and critiques the implementation test exception to statutory stare decisis. It argues that the Supreme Court should be free to reexamine implementation tests that have been criticized by lower courts as confusing or unworkable in practice. But for separation of powers reasons, and in order to preserve stability and predictability, the Court should limit this implementation test exception to only those contexts in which substantial lower court criticism is present.

从表面上看，文本主义和法定凝视决策理论似乎有很多共同点——两者都受规则约束，强调法律的可预测性和稳定性、立法至上性、限制司法自由裁量权的必要性，以及维护法院作为一个机构的合法性的必要性。然而，在实践中，文本主义法学家——至少在最高法院一级——已经证明非常愿意放弃法定凝视判决，并主张推翻既定的法定先例。为什么？本文提出了一个双重命题。首先，它认为文本主义有一种“正确答案”的心态，这使得其支持者特别难以接受这样一种观点，即不正确的法律解释应该仅仅因为它是第一次出现就保留下来。虽然其他人注意到准确性和凝视决策之间的紧张关系给文本主义者带来了问题，但他们倾向于将其视为一种也影响其他解释理论的紧张关系，并坚持认为文本主义可以而且确实会让位于法定凝视决策。其次，也是更重要的一点，本文认为，文本主义法学家倾向于将为实施法规创造测试的法定先例视为不同于更普通的文本法定解释。也就是说，文本主义法学家将执行测试判例视为类似于普通法决策，而不是法定解释，并似乎为法定判例通常提供的强化凝视决策保护创造了一个事实上的“执行测试”例外。论文首先提供了几个案例，在这些案例中，美国最高法院的文本主义法官拒绝了法定的凝视判决，并投票推翻了一个法定先例。该论点在很大程度上是描述性的，但具有重要的理论和规范意义。特别是，实施测试的见解为一些学者观察到的国会否决和影子先例现象的司法处理提供了一种新的、以前未经探索的解释。实施测试和文本解析法定结构之间的区别也突显了文本主义和目的主义对法律解释中司法作用的看法之间的重要差异和未被充分认识的差异。最后，本文对法定凝视决策的实施测试例外提出了支持和批评。它认为，最高法院应该可以自由地重新审查被下级法院批评为在实践中令人困惑或不可行的执行测试。但出于分权的原因，为了保持稳定性和可预测性，最高法院应将这一执行测试例外情况限制在下级法院提出大量批评的情况下。

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引用次数: 0

A Declaratory Theory of State Accountability 国家问责的宣告论

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2016-01-22 DOI: 10.2139/SSRN.2722242

James E. Pfander, J. Dwinell

Debate persists over the meaning of the Eleventh Amendment and the degree to which it supports the lines drawn by the Supreme Court on fraught questions of state sovereign immunity and accountability. Scholars disagree both as to the legal and historical accuracy of the Court’s expansive conception of sovereign immunity and as to the proper scope of the Ex parte Young action, the primary tool for ensuring state accountability. Characterized as a body of law devoid of principle and subject to arbitrary stops in reasoning, the doctrine has yet to strike a balance between immunity and accountability that enjoys anything close to a consensus. In this Essay, we propose to blend current law and scholarship into a new, historically grounded, declaratory theory of state accountability. Our account builds on the willingness of federal courts to entertain applications for declaratory relief and their reluctance to entertain money claims against the states. We argue that the states should take responsibility for money claims, at least in cases where Congress cannot abrogate state immunity. We suggest a framework within which states give preclusive effect to federal declarations in follow-on suits brought by individuals who seek monetary relief in accordance with state law. Such an approach would honor a surprisingly strong tradition of reliance on declaratory judgments as a tool of government accountability, would preserve state control over the purse strings, and would give state governments a role in securing the effectiveness of judgments against the states comparable to that played by Congress and the executive branch in connection with judgments against the federal government.

关于第11修正案的含义以及它在多大程度上支持最高法院在令人担忧的国家主权豁免和问责制问题上所划的界线的争论仍在继续。学者们对法院扩大化的主权豁免概念在法律上和历史上的准确性，以及确保国家问责制的主要工具——杨氏单方面诉讼的适当范围，都持不同意见。该学说的特点是一套没有原则的法律，可以任意停止推理，因此尚未在豁免和问责制之间取得一种接近共识的平衡。在本文中，我们建议将现行法律和学术融合成一种新的、基于历史的、声明性的国家问责理论。我们的叙述建立在联邦法院愿意受理宣告性救济申请和不愿意受理针对各州的金钱索赔的基础上。我们认为，至少在国会不能废除州豁免权的情况下，各州应该对金钱索赔负责。我们建议建立一个框架，在该框架内，各州对根据州法律寻求金钱救济的个人提出的后续诉讼中的联邦声明给予排除效力。这种方法将尊重一个令人惊讶的强大传统，即依赖宣告性判决作为政府问责的工具，将保持国家对财政的控制，并将使州政府在确保对州的判决的有效性方面发挥作用，就像国会和行政部门在对联邦政府的判决中所发挥的作用一样。

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引用次数: 0

The Corporate Criminal as Scapegoat 作为替罪羊的企业罪犯

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2015-03-02 DOI: 10.2139/SSRN.2557465

Brandon L. Garrett

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop original empirical data detailing the path of individual prosecutions accompanying federal corporate prosecution agreements. Only 34 percent of federal corporate deferred and non-prosecution agreements from 2001-2014 were accompanied by charges against individuals. Those prosecutions produced uneven results. Only 42 percent of those charged received any jail time. There were large numbers of outright losses: 15 percent terminated in acquittals or dismissals. Only a handful of the cases involved high-level executives. These findings illustrate the challenges posed by organizational complexity and the manner in which it can obscure fault. Contrary to the calls of prominent critics, I argue that bringing more individual criminal cases cannot adequately substitute for prosecuting companies. Instead, corporate prosecutions should be leveraged to enhance individual accountability. In conclusion, I propose statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes.

司法部(Department of Justice)保证，公司不是替罪羊，因为首要任务是起诉有罪的个人，而不是人为的实体。然而，正如我在这项实证研究中所记录的那样，当最大的公司与联邦刑事案件达成和解时，往往没有个人受到指控。在全球金融危机之后，高调未能起诉高管，只会让这个问题更加紧迫。该公司似乎是一个替罪羊:不可能把人关进监狱，但能够承受指责和惩罚，而个别罪犯却逍遥法外。在这篇文章中，我开发了原始的经验数据，详细说明了伴随联邦公司起诉协议的个人起诉路径。从2001年到2014年，只有34%的联邦公司暂缓起诉和不起诉协议伴随着对个人的指控。这些起诉产生了参差不齐的结果。只有42%的被控者被判入狱。有大量的直接损失:15%以无罪释放或解雇告终。只有少数案件涉及高层管理人员。这些发现说明了组织复杂性所带来的挑战，以及它可以掩盖错误的方式。与著名批评人士的呼吁相反，我认为，提起更多个人刑事案件并不能充分取代对企业的起诉。相反，应该利用公司起诉来加强个人问责。最后，我建议修改法律、量刑和政策，以加强个人和企业对犯罪的责任之间的联系。

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引用次数: 19

Judicial Capacity and Executive Power 司法能力与行政权力

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2015-01-30 DOI: 10.2139/SSRN.2558177

Andrew Coan, Nicholas Bullard

The budget of the United States executive branch is roughly 500 times greater than that of the judicial branch. The executive workforce is more than 50 times greater. How do these enormous disparities affect the practical ability of courts to police executive power? Our judicial capacity model of Supreme Court decision-making is the first attempt to take this question seriously. Briefly, in most executive-power domains, the limits of judicial capacity create strong pressure on the Supreme Court to adopt hard-edged categorical rules, defer to the political process, or both. The reason is straightforward. In these domains, a departure from deferential or rule-based decisions would invite more litigation than the Court could handle without sacrificing minimum professional standards. Our model explains why the Supreme Court has historically deferred to congressional delegations of power and interference with presidential administration, despite significant ideological temptations to intervene. It also explains the few areas of executive power in which the Court has been willing to act aggressively, as well as the one area in which the Court has employed indeterminate standards — as opposed to categorical rules — to invalidate government action. In so doing, the judicial capacity model clarifies when, if at all, it is sensible to urge the courts to constrain executive power in future cases. Finally, the judicial capacity model sheds light on some of the most significant issues in constitutional theory, including judicial competence, judicial independence, and the formalist-functionalist divide in separation of powers. For all of these reasons, judicial capacity deserves a central place on the agenda of executive power scholarship and constitutional theory more generally.

美国行政部门的预算大约是司法部门的500倍。行政人员的数量是其50多倍。这些巨大的差异如何影响法院监督行政权力的实际能力?我们的最高法院决策的司法能力模型是第一次认真对待这个问题的尝试。简而言之，在大多数行政权力领域，司法能力的限制给最高法院带来了强大的压力，迫使其采用强硬的绝对规则，或服从政治程序，或两者兼而有之。原因很简单。在这些领域中，背离恭敬的或基于规则的决定将引起法院在不牺牲最低专业标准的情况下无法处理的更多诉讼。我们的模型解释了为什么最高法院在历史上一直服从国会的权力授权和对总统行政的干预，尽管存在重大的意识形态干预诱惑。它还解释了法院愿意积极采取行动的少数行政权力领域，以及法院采用不确定标准- -而不是绝对规则- -使政府行动无效的一个领域。在这样做的过程中，司法能力模型澄清了何时(如果有的话)敦促法院在未来的案件中限制行政权力是明智的。最后，司法能力模型揭示了宪法理论中一些最重要的问题，包括司法能力、司法独立以及三权分立中形式主义与功能主义的分歧。由于所有这些原因，司法能力理应在行政权力学术和更普遍的宪法理论的议程上占据中心位置。

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引用次数: 1

A Rule of Lenity for National Security Surveillance Law 《国家安全监督法》的宽大原则

IF 2.6 2区社会学 Q1 LAW

Virginia Law Review

Pub Date : 2014-10-20 DOI: 10.1017/9781316148488.020

Orin S. Kerr

This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “rule of lenity,” ambiguity in the powers granted to the executive branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the State. A rule of lenity would push Congress to be the primary decision maker to balance privacy and security when technology changes, limiting the rulemaking power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.

本文认为，国会在制定国家安全监控法规时应采取狭义构建规则。根据这一解释性规则(本文称之为“宽大规则”)，《美国法典》中有关国家安全监视的章节赋予行政部门的权力含糊不清，应引发有利于个人、不利于国家的狭隘司法解释。当技术发生变化时，宽大处理规则将迫使国会成为平衡隐私和安全的主要决策者，从而限制秘密的外国情报监视法院(Foreign Intelligence Surveillance Court)的规则制定权力。宽大处理将有助于将国家安全监控法律的权力恢复到它所属的地方:人民。

引用次数: 7