Debates over the rights of religious organizations pit those who argue for “church autonomy” from state interference against those who argue for strict separation. In battles to exempt religious employers from providing birth control to employees, to debates over parishioners right to secede from a central denomination and take their church property with them, defenders of religious institutions argue that individual interests or local congregations should not determine the outcome of disputes. They argue that the rights of religious institutions have long held a key place in American life. This article challenges that claim by investigating the legislative and judicial implementation of disestablishment in the states from the 1780s to 1860. Widespread legislative and constitutional limits on the capacity of religious organizations to acquire and hold property, coupled with the imposition of lay control of church affairs through the election of trustees, imposed strict limits on the scope of religious power to protect individual freedom of conscience. After disestablishment, state involvement in church affairs increased, in other words. In this environment of intense regulation and oversight, religious life flourished and lay involvement increased dramatically. Taking seriously the focus on individual freedom of belief as a key component of disestablishment, this article rebuts the argument that American history supports broad autonomy for religious institutions. Instead, it reveals a legacy of strict oversight combined with concern for individual liberty of belief.
{"title":"The First Disestablishment: Limits on Church Power and Property Before the Civil War","authors":"S. Gordon","doi":"10.2139/SSRN.2230465","DOIUrl":"https://doi.org/10.2139/SSRN.2230465","url":null,"abstract":"Debates over the rights of religious organizations pit those who argue for “church autonomy” from state interference against those who argue for strict separation. In battles to exempt religious employers from providing birth control to employees, to debates over parishioners right to secede from a central denomination and take their church property with them, defenders of religious institutions argue that individual interests or local congregations should not determine the outcome of disputes. They argue that the rights of religious institutions have long held a key place in American life. This article challenges that claim by investigating the legislative and judicial implementation of disestablishment in the states from the 1780s to 1860. Widespread legislative and constitutional limits on the capacity of religious organizations to acquire and hold property, coupled with the imposition of lay control of church affairs through the election of trustees, imposed strict limits on the scope of religious power to protect individual freedom of conscience. After disestablishment, state involvement in church affairs increased, in other words. In this environment of intense regulation and oversight, religious life flourished and lay involvement increased dramatically. Taking seriously the focus on individual freedom of belief as a key component of disestablishment, this article rebuts the argument that American history supports broad autonomy for religious institutions. Instead, it reveals a legacy of strict oversight combined with concern for individual liberty of belief.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"162 1","pages":"307"},"PeriodicalIF":2.5,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68010501","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}
Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including, most notably, affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family law context. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents. This Article, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last forty years — had numerous opportunities to address the growing divide. Nevertheless, the Court (and particularly some of its most ardent affirmative action detractors) has historically been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a perception that remaining uses of race in the family are fundamentally different, and at least in some contexts, benign. This history has profound implications for the Court’s broader race law jurisprudence. The Supreme Court has — at least facially — rejected the possibility of a role for contextual or normative factors in its application of equal protection doctrine to race. Instead, the Court has demanded that race-based classifications — no matter what their intent or effects — be subjected to strict scrutiny. But the history of the Court’s approach to family law strongly suggests that the Court itself does in fact weigh such considerations in its approach to taking up and adjudicating race law claims. This Article suggests that there are serious process, legitimacy, and substantive concerns raised by such a divergence between the Court’s formal doctrine and its practice, and discusses alternatives for aligning the two more fully.
{"title":"Constitutional Colorblindness and the Family","authors":"Katie R. Eyer","doi":"10.2139/SSRN.2185728","DOIUrl":"https://doi.org/10.2139/SSRN.2185728","url":null,"abstract":"Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including, most notably, affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family law context. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents. This Article, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last forty years — had numerous opportunities to address the growing divide. Nevertheless, the Court (and particularly some of its most ardent affirmative action detractors) has historically been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a perception that remaining uses of race in the family are fundamentally different, and at least in some contexts, benign. This history has profound implications for the Court’s broader race law jurisprudence. The Supreme Court has — at least facially — rejected the possibility of a role for contextual or normative factors in its application of equal protection doctrine to race. Instead, the Court has demanded that race-based classifications — no matter what their intent or effects — be subjected to strict scrutiny. But the history of the Court’s approach to family law strongly suggests that the Court itself does in fact weigh such considerations in its approach to taking up and adjudicating race law claims. This Article suggests that there are serious process, legitimacy, and substantive concerns raised by such a divergence between the Court’s formal doctrine and its practice, and discusses alternatives for aligning the two more fully.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"162 1","pages":"537"},"PeriodicalIF":2.5,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2185728","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67974678","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}
Conventional wisdom holds that federal law’s conferring banking powers on national banks presumptively preempts state laws seeking to control the exercise of those powers. This conventional wisdom springs from a long-standing legal tradition, originating with McCulloch v. Maryland, that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law, even when national law fails to address the risks that state law seeks to regulate. Incorporated into National Bank Act of 1864 by 19th century precedents but then abandoned by the New Deal Court, McCulloch’s theory of preemption is being revived today by the Office of the Comptroller of the Currency (“OCC”) to preempt broad swathes of state law. This article maintains that it is time to exorcise McCulloch’s theory from our preemption jurisprudence. Far from being sanctioned by legal tradition, McCulloch’s theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the “anti-banker non-delegation principle. This principle has been manifest in campaigns against national banks’ immunities from political oversight ranging from Andrew Jackson’s 1832 veto of the charter of the Second Bank of the United States message to Louis Brandeis’ 1912 campaign against the “House of Morgan” as a “financial oligarchy.” Rather than accept McCulloch’s view of banks as impartial instruments of the federal government, the American political system and, since the New Deal, the federal courts, have adopted the view that federal law should not delegate unsupervised power to private banks to determine the honesty, safety, and soundness of their own operations. Accordingly, if federal regulators set aside state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks the state law attempts to control. The most recent effort to eliminate McCulloch’s theory of preemption, according to this article, §1044(a) of the Dodd-Frank Act, which provides detailed standards governing the power of the OCC to preempt state law. This article argues that the OCC’s 2011 rules mistakenly revive McCulloch’s theory of preemption, contradicting not only §1044(a) but also the more general tradition of distrusting unsupervised delegations of immunity from state law to national banks. In particular, like McCulloch, the OCC’s rules draw irrational distinctions between states’ general common-law doctrines and states’ rules specifically directed towards banking practices, subjecting the latter to a sort of field preemption. Rather than accept such preemption, this article urges that courts ought to follow the ordinary principles of conflict preemption, barring preemption of state law unless the OCC has specifically approved the banking practice that state law forbids.
传统观点认为，联邦法律赋予国家银行的银行权力，推定优先于寻求控制这些权力行使的州法律。这种传统智慧源于一个长期的法律传统，起源于麦卡洛克诉马里兰州案，即全国特许银行是联邦机构，有权不受州法律约束地进行自我监管，即使国家法律未能解决州法律寻求监管的风险。根据19世纪的先例，麦卡洛克的优先权理论被纳入了1864年的《国家银行法》(National Bank Act)，但后来被新政法院(New Deal Court)抛弃。如今，美国货币监理署(OCC)重新启用了麦卡洛克的优先权理论，以取代大量的州法律。本文认为，是时候将麦卡洛克的理论从我们的优先购买权法学中剔除了。麦卡洛克关于国家银行是联邦工具的理论非但没有得到法律传统的认可，反而冒犯了美国政治文化和法律中根深蒂固的传统，我称之为“反银行家非授权原则”。这一原则在反对国家银行免于政治监督的运动中得到了体现，从安德鲁·杰克逊1832年否决美国第二银行宪章的消息到路易斯·布兰代斯1912年反对“摩根家族”作为“金融寡头”的运动。而不是接受麦卡洛克的观点，即银行是联邦政府的公正工具，美国的政治体系，以及自新政以来的联邦法院，已经采纳了这样一种观点，即联邦法律不应该将不受监督的权力授权给私人银行，以确定其自身业务的诚实、安全和稳健。因此，如果联邦监管机构将监管银行业务的州法律搁置一边，那么这些联邦监管机构必须解释联邦法律如何处理州法律试图控制的风险。根据这篇文章，《多德-弗兰克法案》第1044(a)条，最近为消除McCulloch的优先权理论所做的努力，该法案提供了管理OCC优先于州法律的权力的详细标准。本文认为，OCC 2011年的规则错误地恢复了McCulloch的优先权理论，这不仅与§1044(a)相矛盾，而且与更普遍的传统相矛盾，即不信任不受监督的州法豁免授权给国家银行。特别是，像McCulloch一样，OCC的规则在各州的一般普通法理论和专门针对银行业务的州规则之间划出了非理性的区别，使后者受到某种领域优先。与其接受这种优先购买权，本文敦促法院应遵循冲突优先购买权的一般原则，禁止州法律的优先购买权，除非OCC特别批准了州法律禁止的银行业务。
{"title":"Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption","authors":"Roderick M. Hills, Jr.","doi":"10.2139/ssrn.2131266","DOIUrl":"https://doi.org/10.2139/ssrn.2131266","url":null,"abstract":"Conventional wisdom holds that federal law’s conferring banking powers on national banks presumptively preempts state laws seeking to control the exercise of those powers. This conventional wisdom springs from a long-standing legal tradition, originating with McCulloch v. Maryland, that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law, even when national law fails to address the risks that state law seeks to regulate. Incorporated into National Bank Act of 1864 by 19th century precedents but then abandoned by the New Deal Court, McCulloch’s theory of preemption is being revived today by the Office of the Comptroller of the Currency (“OCC”) to preempt broad swathes of state law. This article maintains that it is time to exorcise McCulloch’s theory from our preemption jurisprudence. Far from being sanctioned by legal tradition, McCulloch’s theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the “anti-banker non-delegation principle. This principle has been manifest in campaigns against national banks’ immunities from political oversight ranging from Andrew Jackson’s 1832 veto of the charter of the Second Bank of the United States message to Louis Brandeis’ 1912 campaign against the “House of Morgan” as a “financial oligarchy.” Rather than accept McCulloch’s view of banks as impartial instruments of the federal government, the American political system and, since the New Deal, the federal courts, have adopted the view that federal law should not delegate unsupervised power to private banks to determine the honesty, safety, and soundness of their own operations. Accordingly, if federal regulators set aside state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks the state law attempts to control. The most recent effort to eliminate McCulloch’s theory of preemption, according to this article, §1044(a) of the Dodd-Frank Act, which provides detailed standards governing the power of the OCC to preempt state law. This article argues that the OCC’s 2011 rules mistakenly revive McCulloch’s theory of preemption, contradicting not only §1044(a) but also the more general tradition of distrusting unsupervised delegations of immunity from state law to national banks. In particular, like McCulloch, the OCC’s rules draw irrational distinctions between states’ general common-law doctrines and states’ rules specifically directed towards banking practices, subjecting the latter to a sort of field preemption. Rather than accept such preemption, this article urges that courts ought to follow the ordinary principles of conflict preemption, barring preemption of state law unless the OCC has specifically approved the banking practice that state law forbids.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.5,"publicationDate":"2012-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67933712","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}
For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and more complex, but also less fair. The better alternative, as Turner acknowledged, is less-expensive pro se court reform, rather than the impossible dream of giving everyone a lawyer. We offer some concrete suggestions on what legislatures, courts, legal-aid organizations, and others can do to further pro se access to justice.
几十年来，学者和倡导者称赞吉迪恩在刑事案件中保证指定律师，并试图将其扩展到一系列民事案件中的民事-吉迪恩权利。上一届任期，最高法院在特纳诉罗杰斯案(Turner v. Rogers)中一致否决了一项全面的律师权利，同时鼓励改革，使法院更容易为辩诉当事人服务，这让民事吉迪恩运动感到失望。我们认为，特纳在很大程度上是正确的，因为资金限制要求为最需要律师的刑事案件保留律师。最高法院第一次认识到，律师不仅会使案件审理速度变慢、变得更复杂，而且还会使案件变得不公平。正如特纳承认的那样，更好的选择是成本更低的自诉法院改革，而不是让每个人都有律师这样不可能实现的梦想。我们就立法机关、法院、法律援助组织和其他机构如何进一步促进诉诸司法提出了一些具体建议。
{"title":"Triaging Appointed-Counsel Funding and Pro Se Access to Justice","authors":"Benjamin H. Barton, Stephanos Bibas","doi":"10.2139/SSRN.1919534","DOIUrl":"https://doi.org/10.2139/SSRN.1919534","url":null,"abstract":"For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and more complex, but also less fair. The better alternative, as Turner acknowledged, is less-expensive pro se court reform, rather than the impossible dream of giving everyone a lawyer. We offer some concrete suggestions on what legislatures, courts, legal-aid organizations, and others can do to further pro se access to justice.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"160 1","pages":"967"},"PeriodicalIF":2.5,"publicationDate":"2012-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67785270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A persistent theme in the literature on property rights suggests that perfect state protection of private property rights would provide owners with an optimal incentive to invest in their assets. In this Essay, we challenge this view. Specifically, we argue that in many instances, perfect state protection would result in over-investment in resources. This is because perfect enforcement gives rise to a problem akin to the moral hazard problem that plagues insurance markets. In addition to pointing out this problem, we define the conditions under which it may arise in the real world and discuss the measures law should take in order to combat it. To illustrate our thesis, we provide examples of legal rules and doctrines that may be best understood as a response to the moral hazard problem resulting from state protection of private property.
{"title":"The Case for Imperfect Enforcement of Property Rights","authors":"Abraham Bell, Gideon Parchomovsky","doi":"10.2139/SSRN.1990288","DOIUrl":"https://doi.org/10.2139/SSRN.1990288","url":null,"abstract":"A persistent theme in the literature on property rights suggests that perfect state protection of private property rights would provide owners with an optimal incentive to invest in their assets. In this Essay, we challenge this view. Specifically, we argue that in many instances, perfect state protection would result in over-investment in resources. This is because perfect enforcement gives rise to a problem akin to the moral hazard problem that plagues insurance markets. In addition to pointing out this problem, we define the conditions under which it may arise in the real world and discuss the measures law should take in order to combat it. To illustrate our thesis, we provide examples of legal rules and doctrines that may be best understood as a response to the moral hazard problem resulting from state protection of private property.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"160 1","pages":"1927"},"PeriodicalIF":2.5,"publicationDate":"2012-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67833519","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}
How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. Natural Resources Defense Council as a way of constraining newly vigorous judicial engagement with executive law interpretation. The courts may have some appropriate role in interpreting foreign relations law, the notion is, but Chevron at least requires that the courts accept any "reasonable" executive interpretation. Yet, as this Article contends, Chevron’s promise for foreign relations law is elusive. The Chevron doctrine in administrative law has proven neither as stable nor as attuned to the executive’s functional strengths and weaknesses as its foreign relations advocates imagine. More, Chevron poses a still unresolved challenge to formal understandings of the judicial power under Article III of the Constitution. If the executive enjoys substantial authority in statutory and treaty interpretation, what remains at the core of the courts’ structural power to "say what the law is"? While administrative law scholars have long struggled with the question, it has received surprisingly scant attention in the contemporary foreign relations debate. This is an oversight. Understanding what power – and duty – the courts have to "say what the law is" is a necessary precursor to determining what interpretive relationship between the courts and the executive should come after the Court has rejected abstention or total deference. This Article introduces the formal dimension into questions of interpretation in foreign relations law. Concluding that predominant understandings of the judicial power of interpretation provide insufficient accounts of the Court’s role in this realm, it begins the task of developing a supplemental understanding of formal judicial power for foreign relations law.
{"title":"After Deference: Formalizing the Judicial Power for Foreign Relations Law","authors":"Deborah N. Pearlstein","doi":"10.2139/SSRN.1925496","DOIUrl":"https://doi.org/10.2139/SSRN.1925496","url":null,"abstract":"How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. Natural Resources Defense Council as a way of constraining newly vigorous judicial engagement with executive law interpretation. The courts may have some appropriate role in interpreting foreign relations law, the notion is, but Chevron at least requires that the courts accept any \"reasonable\" executive interpretation. Yet, as this Article contends, Chevron’s promise for foreign relations law is elusive. The Chevron doctrine in administrative law has proven neither as stable nor as attuned to the executive’s functional strengths and weaknesses as its foreign relations advocates imagine. More, Chevron poses a still unresolved challenge to formal understandings of the judicial power under Article III of the Constitution. If the executive enjoys substantial authority in statutory and treaty interpretation, what remains at the core of the courts’ structural power to \"say what the law is\"? While administrative law scholars have long struggled with the question, it has received surprisingly scant attention in the contemporary foreign relations debate. This is an oversight. Understanding what power – and duty – the courts have to \"say what the law is\" is a necessary precursor to determining what interpretive relationship between the courts and the executive should come after the Court has rejected abstention or total deference. This Article introduces the formal dimension into questions of interpretation in foreign relations law. Concluding that predominant understandings of the judicial power of interpretation provide insufficient accounts of the Court’s role in this realm, it begins the task of developing a supplemental understanding of formal judicial power for foreign relations law.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"159 1","pages":"783"},"PeriodicalIF":2.5,"publicationDate":"2011-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1925496","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67792345","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}
Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses - and even individual members - of Congress, acting alone, can deploy in interbranch conflicts. Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into "hard" and "soft" varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress's freedom of speech and debate, the houses' disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.The Article concludes by arguing that Congress should make a more vigorous use of these powers and by considering their implications for the separation of powers more generally.
{"title":"Congress's Constitution","authors":"Josh Chafetz","doi":"10.12987/9780300227642","DOIUrl":"https://doi.org/10.12987/9780300227642","url":null,"abstract":"Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses - and even individual members - of Congress, acting alone, can deploy in interbranch conflicts. Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into \"hard\" and \"soft\" varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress's freedom of speech and debate, the houses' disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.The Article concludes by arguing that Congress should make a more vigorous use of these powers and by considering their implications for the separation of powers more generally.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"160 1","pages":"715"},"PeriodicalIF":2.5,"publicationDate":"2011-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66379035","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 ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud. In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence. Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation. While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims. We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm. However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation. We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.
{"title":"The Criminal Class Action","authors":"Adam S. Zimmerman, D. Jaros","doi":"10.2139/SSRN.1824408","DOIUrl":"https://doi.org/10.2139/SSRN.1824408","url":null,"abstract":"Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud. In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence. Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation. While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims. We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm. However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation. We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"159 1","pages":"1385"},"PeriodicalIF":2.5,"publicationDate":"2011-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67755006","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 common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) The common law generally permits the abandonment of chattel property; (2) The common law promotes the transfer of real property via adverse possession; and (3) the civil law permits the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three contrasts have escaped sustained scholarly analysis and criticism. This paper aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, the paper finds that the common law's flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with more a more permissive regime where what matters is the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource's availability. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, the paper criticizes the law's preference for adverse possession over abandonment as a means of transferring title in cases where the mechanisms might function as substitutes.In the course of analyzing the law of abandonment and offering a qualified defense of the practice, the paper provides the first workable definition of resource abandonment, develops a taxonomy of existing regimes, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread, and analyzes the costs and benefits associated with abandonment. The paper explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law's receptivity to these efforts. The latter include the decision costs, transaction costs, decay costs, confusion costs, lawless race costs, and sustainability issues associated with abandonment. In addition, readers who make it through the paper will be exposed to pertinent tidbits concerning the social norms of geocaching, the anthropology of "making it rain," the unfortunate decline of municipal bulky trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau.
{"title":"The Right to Abandon","authors":"L. Strahilevitz","doi":"10.2139/SSRN.1348211","DOIUrl":"https://doi.org/10.2139/SSRN.1348211","url":null,"abstract":"The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) The common law generally permits the abandonment of chattel property; (2) The common law promotes the transfer of real property via adverse possession; and (3) the civil law permits the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three contrasts have escaped sustained scholarly analysis and criticism. This paper aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, the paper finds that the common law's flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with more a more permissive regime where what matters is the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource's availability. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, the paper criticizes the law's preference for adverse possession over abandonment as a means of transferring title in cases where the mechanisms might function as substitutes.In the course of analyzing the law of abandonment and offering a qualified defense of the practice, the paper provides the first workable definition of resource abandonment, develops a taxonomy of existing regimes, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread, and analyzes the costs and benefits associated with abandonment. The paper explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law's receptivity to these efforts. The latter include the decision costs, transaction costs, decay costs, confusion costs, lawless race costs, and sustainability issues associated with abandonment. In addition, readers who make it through the paper will be exposed to pertinent tidbits concerning the social norms of geocaching, the anthropology of \"making it rain,\" the unfortunate decline of municipal bulky trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"158 1","pages":"355"},"PeriodicalIF":2.5,"publicationDate":"2009-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68167311","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}
Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others, and that therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of the panel members. Analyzing votes in Title VII sex discrimination cases, I find no support for the theory that panel effects are caused by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects are influenced by circuit preferences. Both minority and majority judges on ideologically mixed panels differ in their voting behavior depending upon how the preferences of the circuit as a whole are aligned relative to the panel members. This study provides evidence that panel effects do not result from a dynamic wholly internal to the three judges hearing a case, but are influenced by the environment in the circuit as a whole as well.
{"title":"Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects","authors":"P. Kim","doi":"10.2139/SSRN.1115357","DOIUrl":"https://doi.org/10.2139/SSRN.1115357","url":null,"abstract":"Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others, and that therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of the panel members. Analyzing votes in Title VII sex discrimination cases, I find no support for the theory that panel effects are caused by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects are influenced by circuit preferences. Both minority and majority judges on ideologically mixed panels differ in their voting behavior depending upon how the preferences of the circuit as a whole are aligned relative to the panel members. This study provides evidence that panel effects do not result from a dynamic wholly internal to the three judges hearing a case, but are influenced by the environment in the circuit as a whole as well.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"157 1","pages":"1319"},"PeriodicalIF":2.5,"publicationDate":"2008-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68142018","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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