INTRODUCTION .............................................................................1094 I. LIFE TENURE: AN ESSENTIAL FEATURE OF THE CONSTITUTION?.........................................................................1098 II. THE PROBLEM..........................................................................1101 A. Strategic Retirements ............................................................ 1101 B. Incentives for Young Nominees........................................... 1110 C. Random Distribution of Appointments .............................. 1116 III. THE SOLUTION AND WHY IT SOLVES THE PROBLEM...........1119 A. Outline of the Proposed Constitutional Amendment........ 1119 B. The Proposed Constitutional Amendment Removes Incentives for Strategic Retirements..................................... 1120 C. The Proposed Constitutional Amendment Removes Incentives for Young Nominees........................................... 1122 D. The Proposed Constitutional Amendment Fairly Distributes Appointments..................................................... 1123 IV. WHY THE PROPOSED CONSTITUTIONAL AMENDMENT IS
介绍 ............................................................................. 1094年我终身任期:宪法的本质特征 ?......................................................................... 1098年2这个问题 .......................................................................... 1101年一个。战略退休 ............................................................1101 b .激励年轻的候选人 ...........................................1110 c .随机分布的任命 ..............................1116 III。解决方案及其原因...........1119一个。宪法修正案提纲........1119 B.拟议的宪法修正案取消了对战略性退休的激励.....................................1120 c提出宪法修正案将激励年轻的候选人 ...........................................1122 d拟议的宪法修正案相当分发任命 .....................................................(四)宪法修正案提议的理由
{"title":"Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms","authors":"James E. DiTullio, John B. Schochet","doi":"10.2307/3202417","DOIUrl":"https://doi.org/10.2307/3202417","url":null,"abstract":"INTRODUCTION .............................................................................1094 I. LIFE TENURE: AN ESSENTIAL FEATURE OF THE CONSTITUTION?.........................................................................1098 II. THE PROBLEM..........................................................................1101 A. Strategic Retirements ............................................................ 1101 B. Incentives for Young Nominees........................................... 1110 C. Random Distribution of Appointments .............................. 1116 III. THE SOLUTION AND WHY IT SOLVES THE PROBLEM...........1119 A. Outline of the Proposed Constitutional Amendment........ 1119 B. The Proposed Constitutional Amendment Removes Incentives for Strategic Retirements..................................... 1120 C. The Proposed Constitutional Amendment Removes Incentives for Young Nominees........................................... 1122 D. The Proposed Constitutional Amendment Fairly Distributes Appointments..................................................... 1123 IV. WHY THE PROPOSED CONSTITUTIONAL AMENDMENT IS","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1093"},"PeriodicalIF":2.6,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202417","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038929","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}
“During the Khmer Rouge period between April 1975 to January 1979, nearly a quarter of Cambodia’s population died as a result of extrajudicial executions, starvation and disease. In addition, tens of thousands of people were cruelly abused, enslaved, systematically tortured and killed. In this dark time, there was a generation of professional torturers. To date, not one of them has been brought to account for the suffering they caused.” – Amnesty International
{"title":"Crossroads in Cambodia: The United Nation's Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge","authors":"Scott Luftglass","doi":"10.2307/3202401","DOIUrl":"https://doi.org/10.2307/3202401","url":null,"abstract":"“During the Khmer Rouge period between April 1975 to January 1979, nearly a quarter of Cambodia’s population died as a result of extrajudicial executions, starvation and disease. In addition, tens of thousands of people were cruelly abused, enslaved, systematically tortured and killed. In this dark time, there was a generation of professional torturers. To date, not one of them has been brought to account for the suffering they caused.” – Amnesty International","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"893"},"PeriodicalIF":2.6,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202401","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"More Is Less","authors":"Philip A. Hamburger","doi":"10.2307/3202400","DOIUrl":"https://doi.org/10.2307/3202400","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"835"},"PeriodicalIF":2.6,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. "entitlements" approach, which looks only to political self-interest, with the dominant "fidelity" approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole. This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a "conservative" fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a "liberal" fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional "entitlements."
{"title":"Of Power and Responsibility: The Political Morality of Federal Systems","authors":"Daniel Halberstam","doi":"10.2307/3202399","DOIUrl":"https://doi.org/10.2307/3202399","url":null,"abstract":"This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. \"entitlements\" approach, which looks only to political self-interest, with the dominant \"fidelity\" approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole. This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a \"conservative\" fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a \"liberal\" fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional \"entitlements.\"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"731"},"PeriodicalIF":2.6,"publicationDate":"2004-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202399","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038968","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}
Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a concep
{"title":"Constitutional Decision Rules","authors":"Mitchell N. Berman","doi":"10.2307/3202427","DOIUrl":"https://doi.org/10.2307/3202427","url":null,"abstract":"Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a concep","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1-168"},"PeriodicalIF":2.6,"publicationDate":"2004-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202427","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038672","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}
While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an "emancipation proclamation" for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA's passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees' labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. By contrast, David Engle & Frank Munger's thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is "working," and in so doing provides an alternative appraisal of the statute's efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA's mere presence has changed disabled persons' identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statutes normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a "new theory" of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. This Essay seeks to bridge the in
在制定《美国残疾人法案》(ADA)时，参议员哈金和肯尼迪各自宣称该法案的通过是残疾人的“解放宣言”。14年后，人们不禁要问，究竟有多少(如果有的话)残疾人得到了解放。衡量《美国残疾人法》通过后，残疾人的社会和经济赋权是否有所增加的一种方法是考察他们的就业经历。到目前为止，对《美国残疾人法》后残疾员工的劳动力市场参与的实证研究并不令人鼓舞。值得注意的是，两项广为人知的关于《美国残疾人法》实施后对残疾工人就业影响的实证研究发现，他们的就业率下降了，同时对他们的工资产生了中性或有益的影响。这些研究在支持或质疑其发现的学者之间引发了越来越多的争论。然而，即使是那些试图在更广泛的经济影响背景下解释现有数据的经济学家，也承认《美国残疾人法》颁布后，与残疾有关的就业(广义定义)并没有显著改善。与此同时，原告在联邦法院主张《美国残疾人法》第一章就业歧视的胜诉率比除囚犯权利诉讼外的任何其他群体都要低。具体来说，美国律师协会(American Bar Association)的一份报告发现，在1992年至1997年期间，雇主在超过92%的第一修正案案件中获胜。尽管造成这一现象的原因可能有很多，但总的印象是可怕的。因此，从纯粹的定性角度来看，实证分析表明，《美国残疾人法》并没有履行其赋予残疾工人权力的承诺。相比之下，大卫·恩格尔和弗兰克·芒格的思想著作《包容的权利:美国残疾人生活故事中的法律和身份》(《包容的权利》)采用了一种非经济的衡量标准来衡量《美国残疾人法》是否“有效”，并以此提供了对该法规效力的另一种评估。利用定性分析，Engle & Munger采访了从未声称与残疾有关的就业歧视索赔的残疾工人。他们的结论是，《美国残疾人法》的存在改变了残疾人的身份，创造了一种有工作能力的人的形象，如果给予机会，包括适当的便利，他们可以成为成功和充满活力的员工，展示这些能力。与此同时，恩格尔和芒格认为，《美国残疾人法》中所体现的假定就业权利只有在残疾人理解并接受法规的规范性愿望的情况下才能实现。因此，他们对《美国残疾人法》的评估，以及他们随后提出的关于权利的“新理论”的建议，可以恰当地涵盖残疾身份形成的动态，对于那些生活故事在《包容性权利》中呈现的个人来说，既是内部的，也是背景的。本文试图通过提出第三条路径，将经济学(外部的、定量的实证雷达)和社会学(内部的、定性的权利话语评估)这两个通常相互排斥的学科所做的调查联系起来:对《美国法》进行初步的表达性法律分析(检查存在于实证雷达之下的现象)。这种方法考虑了(外部)法律如何通过改变更广泛的社会规范来影响(内部)个人行为，这是《包容权》中没有涉及的方法。在考虑这些规则时，我特别感兴趣的是建立在Alex Geisinger的“信念变化”理论中提出的表达性法律光泽的基础上，该理论确定并模拟了一个过程，通过这个过程，法规可以影响规范和偏好。第一部分阐述了恩格尔和芒格记录的残疾人生活故事，以及他们从这些经历中得出的关于身份和权利理论本质的结论。其次，第二部分描述了表达法学研究的总体目标，并对亚历克斯·盖辛格的“信念改变”理论进行了概述。第三部分描述了现有的关于残疾人的社会法律规范，以及《美国残疾人法》所载的愿望。第四部分对《美国残疾人法》的表达法进行了初步分析。文章最后从表达法的角度重新解读了《包容权》中一些残疾人的生活故事。
{"title":"Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA","authors":"M. Stein","doi":"10.2307/3202418","DOIUrl":"https://doi.org/10.2307/3202418","url":null,"abstract":"While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an \"emancipation proclamation\" for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA's passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees' labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. By contrast, David Engle & Frank Munger's thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is \"working,\" and in so doing provides an alternative appraisal of the statute's efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA's mere presence has changed disabled persons' identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statutes normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a \"new theory\" of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. This Essay seeks to bridge the in","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1151"},"PeriodicalIF":2.6,"publicationDate":"2004-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202418","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038989","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 Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution's explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.
{"title":"Thomas Jefferson Counts Himself into the Presidency","authors":"B. Ackerman, D. Fontana","doi":"10.2307/3202441","DOIUrl":"https://doi.org/10.2307/3202441","url":null,"abstract":"The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution's explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"551"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202441","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039234","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}
Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.
{"title":"Information Costs in Patent and Copyright","authors":"Clarisa Long","doi":"10.2307/3202440","DOIUrl":"https://doi.org/10.2307/3202440","url":null,"abstract":"Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"465"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202440","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039178","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}
EN years ago Professor Michael J. Klarman published an article entitled “Brown, Racial Change, and the Civil Rights Movement” in the Virginia Law Review. Portions of Professor Klarman’s argument were so notable that another discipline’s most widely read scholarly publication, the Journal of American History (“JAH”), printed a briefer version of Klarman’s interpretation just four months later. Professor Klarman’s Virginia Law Review article was accompanied by critical commentaries by this writer, Professor Gerald N. Rosenberg, and Professor Mark Tushnet, and a reply by Professor
十年前，Michael J. Klarman教授在《弗吉尼亚法律评论》上发表了一篇题为“布朗、种族变化和民权运动”的文章。克拉曼教授的部分观点是如此引人注目，以至于另一个学科最广泛阅读的学术出版物《美国历史杂志》(JAH)仅仅在四个月后就发表了克拉曼解释的简短版本。克拉曼教授在《弗吉尼亚法律评论》上发表的文章附有本文作者杰拉尔德·n·罗森伯格教授和马克·图什内特教授的批评评论，以及教授的回复
{"title":"\"Happy\" Birthday, \"Brown v. Board of Education?\" \"Brown's\" Fiftieth Anniversary and the New Critics of Supreme Court Muscularity","authors":"D. J. Garrow, M. Klarman","doi":"10.2307/3202443","DOIUrl":"https://doi.org/10.2307/3202443","url":null,"abstract":"EN years ago Professor Michael J. Klarman published an article entitled “Brown, Racial Change, and the Civil Rights Movement” in the Virginia Law Review. Portions of Professor Klarman’s argument were so notable that another discipline’s most widely read scholarly publication, the Journal of American History (“JAH”), printed a briefer version of Klarman’s interpretation just four months later. Professor Klarman’s Virginia Law Review article was accompanied by critical commentaries by this writer, Professor Gerald N. Rosenberg, and Professor Mark Tushnet, and a reply by Professor","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"693"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202443","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039298","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}
EGISLATIVE supremacy over the substance of criminal law is a virtually unchallenged proposition. In contrast to the explosion of the constitutionalization of criminal procedure, constitutional regulation of substantive criminal law has been limited and sporadic. The courts have, however, periodically undertaken efforts to create an area of substantive constitutional criminal law. When the courts have imposed constitutional limits on the substance of criminal law they have done so in three contexts. First, courts have enforced specific constitutional provisions, such as the First Amendment’s prohibition of the criminalization of most types of speech. Second, and more generally, the United States Supreme Court has imparted limited actus reus and mens rea requirements. Finally, the Court has interpreted the Eighth Amendment to require proportionality between the underlying crime and the punishment imposed. Guidance as to where these boundaries fall, however, has often been hazy and of dubious value.
{"title":"Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts","authors":"D. Bentsen","doi":"10.2307/3202442","DOIUrl":"https://doi.org/10.2307/3202442","url":null,"abstract":"EGISLATIVE supremacy over the substance of criminal law is a virtually unchallenged proposition. In contrast to the explosion of the constitutionalization of criminal procedure, constitutional regulation of substantive criminal law has been limited and sporadic. The courts have, however, periodically undertaken efforts to create an area of substantive constitutional criminal law. When the courts have imposed constitutional limits on the substance of criminal law they have done so in three contexts. First, courts have enforced specific constitutional provisions, such as the First Amendment’s prohibition of the criminalization of most types of speech. Second, and more generally, the United States Supreme Court has imparted limited actus reus and mens rea requirements. Finally, the Court has interpreted the Eighth Amendment to require proportionality between the underlying crime and the punishment imposed. Guidance as to where these boundaries fall, however, has often been hazy and of dubious value.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"645"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202442","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039248","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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