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Supervising Federal Capital Punishment: Why the Attorney General Should Defer When U.S. Attorneys Recommend against the Death Penalty 监督联邦死刑:当美国检察官建议反对死刑时,为什么司法部长应该推迟
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-11-01 DOI: 10.2307/3202361
J. Gleeson
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引用次数: 5
A Legal U-Turn: The Rehnquist Court Changes Direction and Steers Back to the Privacy Norms of the Warren Era 法律的180度大转弯:伦奎斯特法院改变方向,回到沃伦时代的隐私规范
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-11-01 DOI: 10.2307/3202362
Melissa Arbus
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引用次数: 2
Tom Paine's Constitution 汤姆·潘恩的《宪法》
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-10-01 DOI: 10.2307/3202395
R. West
In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that "in America the law is king." What, precisely, is the "law" that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practices might be different if Justice Marshall had enforced Paine’s conception of the Constitution in Marbury and McCulloch, and concludes with some thoughts on what we have lost by turning away from Paine’s constitutional vision.
在《常识》(Common Sense)一书中,我们对美国革命的简要介绍,小册子作者汤姆·潘恩(Tom Paine)有一句名言:“在美国,法律为王。”潘恩宣布废黜国王的“法律”究竟是什么?这句话,不仅是我们革命的倡导者,也是世界各地人权的倡导者所写的,是否预示着我们现代以权利为基础的宪政实践?这种解读——在美国,宪法为王——也可能使潘恩成为司法审查的早期朋友,因为他无疑也是美国宪法主义的朋友,无论是联邦还是州。因此,潘恩的宣言可以被解读为预见了我们现代以法院为中心的宪法意识的展开。本文认为,这是对潘恩哲学的一种有吸引力但站不住脚的解读,并提供证据表明,潘恩的宪法和法律概念本身与主流理解存在重大分歧。文章接着提出,如果马歇尔大法官在马布里和麦卡洛克案中执行潘恩的宪法概念,现代宪法实践可能会有什么不同,文章最后对我们偏离潘恩的宪法愿景所失去的东西进行了一些思考。
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引用次数: 2
"Marbury," Marshall, and the Politics of Constitutional Judgment “马布里”,马歇尔和宪法判决的政治
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-10-01 DOI: 10.2307/3202393
C. Eisgruber
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引用次数: 0
Tolls on the Information Superhighway: Entitlement Defaults for Clickstream Data 信息高速公路上的收费:点击流数据的权限默认值
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-09-01 DOI: 10.2307/3202424
Lee B. Kovarsky
This paper addresses the collection of "clickstream data," and sets forth a theory about the legal rules that should govern it. At the outset, I propose a typology for categorizing privacy invasions. A given state of informational privacy may be represented by: the observed behavior, the collecting agent, and the searching agent. Using this typology, I identify the specific sources of concern about collection of clickstream data. Then, based on expected levels of utility and expected transaction costs of "flipping" to a different rule, I argue for a particular set of privacy defaults for data mining.
本文讨论了“点击流数据”的收集,并提出了一种关于管理它的法律规则的理论。首先,我提出了一种对隐私侵犯进行分类的类型学。给定的信息隐私状态可以用以下方式表示:观察到的行为、收集代理和搜索代理。使用这种类型,我确定了关注点击流数据收集的特定来源。然后,基于预期的效用水平和“翻转”到不同规则的预期交易成本,我主张为数据挖掘设置一组特定的隐私默认值。
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引用次数: 0
Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983 习惯和习惯作为州法色彩下的行为:评1983年第1节被遗忘的条款
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-09-01 DOI: 10.2139/SSRN.353364
G. Rutherglen
Section 1983 is the general federal civil rights statute which creates a cause of action for any deprivation of federal rights "under color of any statute, ordinance, regulation, custom, or usage of any state." The terms "custom" and "usage" in this context have a meaning that, if it was once known, has been forgotten, and to the extent that it resembles the ordinary meaning of these terms contrasts sharply with the other sources of state law listed in the statute. If these terms are given their ordinary meaning, then a wide range of private action would suddenly come within the coverage of the statute, allowing claims to be brought against private individuals and institutions for actions taken systematically to deny federal rights. This article tries to determine why the statute has not received this interpretation, and indeed, why the terms "custom" and "usage" have received virtually no interpretation at all in current decisions under section 1983. The meaning of these terms is analyzed in four different periods: in the era before section 1983 was enacted as part of the Civil Rights Act of 1871; in the debates over this act and over similar provisions in other civil rights acts passed during Reconstruction; in judicial decisions in the late nineteenth century invalidating or narrowly interpreting these acts; and in judicial decisions in the twentieth century that otherwise expanded the scope of the section 1983. In each of these periods, developments in legal doctrine are set against the background of jurisprudential views of the appropriate role of custom as a source of law. The article concludes by examining the implications of this historical inquiry for the current scope of civil rights laws, and particularly for the power of Congress under section 5 of the Fourteenth Amendment.
第1983节是联邦民事权利的总则,它为“以任何州的任何法规、条例、规章、习俗或习惯为名义”剥夺联邦权利创造了诉讼理由。在这种情况下,“习惯”和“用法”这两个术语所具有的含义,如果曾经为人所知,就已经被遗忘了,并且就其与这些术语的通常含义相似的程度而言,与成文法中列出的其他州法渊源形成鲜明对比。如果这些术语被赋予其通常的含义,那么广泛的私人诉讼将突然进入该法规的覆盖范围,允许对个人和机构提出索赔,因为他们采取了系统地否认联邦权利的行动。本条试图确定为什么规约没有得到这种解释,事实上,为什么“习惯”和“用法”这两个词在根据第1983条作出的现行决定中几乎没有得到任何解释。在四个不同的时期对这些术语的含义进行了分析:在1983条作为1871年民权法案的一部分颁布之前的时代;在对该法案的辩论中以及对重建时期通过的其他民权法案中类似条款的辩论中;在19世纪后期的司法判决中,这些行为无效或被狭义地解释;在20世纪的司法判决中扩大了1983年条款的范围。在每一个时期,法律学说的发展都是在习惯法作为法律渊源的适当作用的法理学观点的背景下进行的。文章最后考察了这一历史调查对当前民权法范围的影响,特别是对第十四修正案第5条规定的国会权力的影响。
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引用次数: 3
Evaluating Public Endorsement of the Weak and Strong Forms of Judicial Supremacy 评价公众对弱形式和强形式司法至上的认可
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-09-01 DOI: 10.2307/3202423
B. Feldman
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引用次数: 1
'Rational Discrimination,' Accommodation, and the Politics of (Disability) Civil Rights “理性歧视”、“迁就”和(残疾)公民权利的政治
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-07-24 DOI: 10.2307/3202421
Samuel Bagenstos
In the thirteen years since Congress enacted the Americans with Disabilities Act ("ADA"), many commentators have sought to draw a strong normative distinction between the statute's mandate to provide "reasonable accommodation" to people with disabilities and the antidiscrimination requirements of the civil rights laws that emerged in the 1960s and 1970s. This move has been most obvious among those who are skeptical of the ADA, but even most supporters of the ADA have taken the same view. The conventional wisdom, as evidenced by a near-consensus in the literature, seems to be that - whatever the descriptive similarities between them - there is a fundamental normative difference between antidiscrimination requirements and accommodation mandates: Antidiscrimination requirements call on employers to forego acting on illegitimate preferences (like aversive prejudice) that they ought not to have in the first place, while accommodation mandates prohibit employers from acting on the normally legitimate desire to save money. One goal of this Article is to challenge that widely held point of view. The Article's basic aim is to demonstrate that the ADA's accommodation requirement is fundamentally of a piece with the core antidiscrimination requirements of Title VII, but the Article also makes a more general argument about the fundamental normative similarity between antidiscrimination and accommodation. It seeks to show that the arguments that have been proffered for a strong normative distinction between antidiscrimination and accommodation are unpersuasive, and that the two modes of civil rights law have a great deal in common both practically and morally. Along the way, the Article contends that the notion of "rational discrimination" - of which the failure to accommodate is often cited as an example - is a conceptually unstable basis on which to build any normative theory of antidiscrimination law. The Article then engages the question of why so many people from so many perspectives place so much weight on what is ultimately a shaky normative distinction between antidiscrimination and accommodation. The Article contends that the antidiscrimination/accommodation distinction seems to serve an important political function for two somewhat different groups: mainstream liberal supporters of the 1960s civil rights revolution, who hope to protect traditional civil rights laws against the backlash that the ADA has provoked; and more radical leftist critics of identity politics, who hope to preempt liberal challengers by claiming that their critique is not directed at the statutes that emerged from that civil rights revolution. This move ultimately cannot do the work that mainstream liberal civil rights supporters or anti-identitarian leftists hope, but the political uses of the antidiscrimination/accommodation distinction are telling nonetheless.
自国会颁布《美国残疾人法案》(ADA)以来的十三年里,许多评论家试图在为残疾人提供“合理便利”的法规授权与20世纪60年代和70年代出现的民权法的反歧视要求之间划清明确的规范区别。这一举动在那些对《美国残疾人法》持怀疑态度的人中表现得最为明显,但即使是《美国残疾人法》的大多数支持者也持同样的观点。正如文献中几乎达成一致意见所证明的那样,传统智慧似乎是,无论它们之间在描述上有什么相似之处,反歧视要求和住宿规定之间在规范上有根本的区别:反歧视要求要求雇主放弃他们本来就不应该拥有的不正当偏好(如厌恶偏见),而住宿要求则禁止雇主出于通常合理的省钱愿望而采取行动。本文的目标之一就是挑战这种广泛持有的观点。该条的基本目的是证明《美国残疾人法》的住宿要求在根本上与第七章的核心反歧视要求是一致的,但该条也对反歧视和住宿之间的基本规范相似性进行了更一般的论证。它试图表明,那些为在反歧视和包容之间建立强有力的规范区别而提出的论点是没有说服力的,这两种民权法模式在实践和道德上都有很多共同点。在此过程中,文章认为,“理性歧视”的概念——未能适应经常被引用为一个例子——是一个概念上不稳定的基础,在此基础上建立任何反歧视法的规范理论。这篇文章接着探讨了这样一个问题:为什么这么多人从这么多的角度如此重视反歧视和包容之间最终是不可靠的规范区别。文章认为,反歧视/迁就的区别似乎为两个不同的群体提供了重要的政治功能:20世纪60年代民权革命的主流自由派支持者,他们希望保护传统的民权法免受《美国残疾人法》引发的反弹;还有更激进的左翼身份政治批评者,他们希望先发制人,声称他们的批评不是针对民权革命产生的法规。这一举措最终无法达到主流自由主义民权支持者或反身份主义左翼人士所希望的效果,但反歧视/住宿区分的政治用途仍然很有说服力。
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引用次数: 29
Constitutional Existence Conditions and Judicial Review 宪法存在条件与司法审查
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-06-25 DOI: 10.2139/SSRN.419762
Michael C. Dorf, M. Adler
Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless "enforces" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with "application conditions" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to "under-enforce" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are "perspectival" - that is, they have different content for different addressees.
尽管司法审查的批评者有时呼吁将整个宪法置于不可审理的地位,但许多熟悉的宪法规范规定了我们所说的“存在条件”,这些条件必须由负责适用的司法行为者强制执行,从而作为初步步骤,确定成文法等次宪法法律的主张。第1条第7款规定了法案成为法律的程序,这就是一个例子:没有经过第1条第7款程序并且不满足法律有效性的替代测试(如第2条第2款的条约制定规定)的推定法律没有法律存在性。当法官发现一项假定的成文法是(或不是)他必须考虑的国会立法时,他放弃司法审查的权力,但仍“执行”第一条第七款。我们将存在条件与“适用条件”进行对比,后者通过某种方式限制非宪法法律命题的法律效力,而不是削弱该命题作为法律的地位。例如,在没有支付公正赔偿的情况下,征收条款将阻止《濒危物种法》等其他有效法规适用于私人拥有的一小块土地,如果该适用的影响是破坏该地块的所有经济上可行的利用。尽管司法上不执行适用条件可能是不明智的,但对适用条件的司法执行并不需要执行普通的宪法以下法律。在阐述了存在条件和适用条件之间的概念区别之后,我们认为,许多熟悉的宪法条款和理论——包括列举的权力范围和一些个人权利——最好被解读为存在条件,因此必然在司法上得到执行。然后,我们将这一观察结果与各种理论——包括政治问题理论、登记法案理论和理性基础检验——相调和,这些理论似乎授权法院不执行或“不强制执行”存在条件。我们认为,在某些情况下,这些学说应该被理解为对宪法的非司法解释者给予认识上的尊重,而在其他情况下,则应被理解为反映了一些宪法条款和学说是“透视的”这一事实——也就是说,它们对不同的收件人有不同的内容。
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引用次数: 6
When Code Isn't Law 当代码不是法律
IF 2.6 2区 社会学 Q1 LAW Pub Date : 2003-06-05 DOI: 10.2139/SSRN.413201
Tim Wu
The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) "code is law." But the idea remains extremely vague. Most problematically, none of these understandings of code and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected. This Article proposes a new and concrete way to understand the relationship between code and compliance with law. I propose to study the design of code as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer ("P2P") filesharing, explored in depth in this Article, illustrates the possibility of using code design as an alternative mechanism of interest group behavior. The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer code can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.
计算机代码的显著作用使人们很难忽视这样一个事实,即代码可以用来产生类似法律的调节作用。因此,(至少对计算机用户来说)“法典就是法律。”但这个想法仍然非常模糊。最成问题的是,这些对法典和法律的理解都不能解释合规性的核心问题。具体来说,它们并不能解释2000年代法律合规模式的变化。在版权、色情、金融欺诈和处方药等领域,违规行为的激增加剧了法律崩溃的感觉,但绝大多数法律并未受到影响。本文提出了一种新的、具体的方式来理解规范与守法的关系。我建议将代码设计作为利益集团行为的一个方面来研究,它只是利益集团用来最小化法律成本的几种机制之一。换句话说,代码设计可以作为游说活动、避税或集团可能用于寻求法律优势的任何其他方法的替代方案进行有益的研究。本文将深入探讨点对点(“P2P”)文件共享的重要案例,说明使用代码设计作为利益集团行为的替代机制的可能性。该方法旨在分离法典与法律关系的两个不同方面。首先是莱西格的监管机制概念,即计算机代码可以取代法律或其他形式的监管。第二个方面是作为一种反监管机制工具,以尽量减少某些群体将利用的法律成本。
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引用次数: 70
期刊
Virginia Law Review
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