There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition.
{"title":"Abolitionist Prison Litigation","authors":"Molly Petchenik","doi":"","DOIUrl":"https://doi.org/","url":null,"abstract":"<p>There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition. </p>\u0000<p> </p>","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"9 12","pages":""},"PeriodicalIF":6.4,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"50164652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court’s image and the rule of law badly damaged. The coming crisis can be stopped. But saving the Court’s legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using “hardball” tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court—but only if we are willing to transform the Court.
{"title":"How to Save the Supreme Court","authors":"Daniel Epps, Ganesh Sitaraman","doi":"10.2139/SSRN.3288958","DOIUrl":"https://doi.org/10.2139/SSRN.3288958","url":null,"abstract":"The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court’s image and the rule of law badly damaged. \u0000 \u0000The coming crisis can be stopped. But saving the Court’s legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using “hardball” tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court—but only if we are willing to transform the Court.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"19 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2019-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89134272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Some corporations have become so large or so systemically important that when they violate the law, the government cannot credibly threaten “efficient” criminal sanctions. By introducing political economy constraints into a standard microeconomic model of corporate liability, this Note shows how this Too Big to Jail (TBTJ) problem reduces prosecutors’ ability to deter corporate crime by simply fining a defendant corporation without the accompanying prosecution of culpable individuals and mandatory structural reforms. This Note further illustrates how the risk of corporate criminal liability alone cannot incentivize a TBTJ firm to invest in internal controls or cooperate with government investigations. To deter criminality by TBTJ firms, prosecutorial strategy should credibly threaten culpable managers with monetary and nonmonetary penalties, and not unduly rely on corporate defendants’ cooperation.The Note also advances a structural explanation for the dearth of individual prosecutions relative to negotiated criminal settlements with TBTJ companies: prosecutors currently rely on an intrafirm apparatus for investigation that may produce information necessary for corporate settlements but will not reliably produce evidence to charge culpable individuals. In response, this Note proposes enlisting the courts as a bulwark against these structural incentives for prosecutors to agree to large corporate settlements without insisting on comprehensive investigation of underlying individual culpability. Thus, I present a legislative reform that authorizes judicial review of deferred prosecution agreements to ensure prosecutors have collected sufficient evidence prior to finalizing corporate settlements.
{"title":"Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review","authors":"Nicholas Werle","doi":"10.2139/SSRN.3216152","DOIUrl":"https://doi.org/10.2139/SSRN.3216152","url":null,"abstract":"Some corporations have become so large or so systemically important that when they violate the law, the government cannot credibly threaten “efficient” criminal sanctions. By introducing political economy constraints into a standard microeconomic model of corporate liability, this Note shows how this Too Big to Jail (TBTJ) problem reduces prosecutors’ ability to deter corporate crime by simply fining a defendant corporation without the accompanying prosecution of culpable individuals and mandatory structural reforms. This Note further illustrates how the risk of corporate criminal liability alone cannot incentivize a TBTJ firm to invest in internal controls or cooperate with government investigations. To deter criminality by TBTJ firms, prosecutorial strategy should credibly threaten culpable managers with monetary and nonmonetary penalties, and not unduly rely on corporate defendants’ cooperation.The Note also advances a structural explanation for the dearth of individual prosecutions relative to negotiated criminal settlements with TBTJ companies: prosecutors currently rely on an intrafirm apparatus for investigation that may produce information necessary for corporate settlements but will not reliably produce evidence to charge culpable individuals. In response, this Note proposes enlisting the courts as a bulwark against these structural incentives for prosecutors to agree to large corporate settlements without insisting on comprehensive investigation of underlying individual culpability. Thus, I present a legislative reform that authorizes judicial review of deferred prosecution agreements to ensure prosecutors have collected sufficient evidence prior to finalizing corporate settlements.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"15 1","pages":"1366"},"PeriodicalIF":6.4,"publicationDate":"2018-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76854403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The separation of powers forms the backbone of our constitutional democracy. But it is also a guiding principle in sub-constitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. This statutory separation of powers may be seen clearly in the simultaneous legislative creation of the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE). Like its constitutional counterpart, the statutory separation of powers seeks to prevent the dominance of faction and create policy stability. But separating and balancing statutory authority is a delicate business subject to challenges of imprecise allocation, lopsided aggrandizement, and infrequent adjustment. The relationship between FERC and the DOE demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance. The article concludes with recommendations for how Congress, the judiciary, and agencies themselves might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated policymaking authority.
{"title":"The Statutory Separation of Powers","authors":"Sharon B. Jacobs","doi":"10.2139/SSRN.3229255","DOIUrl":"https://doi.org/10.2139/SSRN.3229255","url":null,"abstract":"The separation of powers forms the backbone of our constitutional democracy. But it is also a guiding principle in sub-constitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. This statutory separation of powers may be seen clearly in the simultaneous legislative creation of the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE). Like its constitutional counterpart, the statutory separation of powers seeks to prevent the dominance of faction and create policy stability. But separating and balancing statutory authority is a delicate business subject to challenges of imprecise allocation, lopsided aggrandizement, and infrequent adjustment. The relationship between FERC and the DOE demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance. The article concludes with recommendations for how Congress, the judiciary, and agencies themselves might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated policymaking authority.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"84 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2018-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73428381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
128 Yale Law Journal Forum 169 (2018).Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. In particular, the overlapping authority of federal and state actors with respect to corporate law calls for approaches that sound in cooperative federalism. Yet cooperative-federalist approaches have been absent from recent debates about shareholder arbitration. This Essay explains why cooperative federalism is a natural fit for addressing these issues. Moreover, we marshal specific examples of cooperative solutions in this area that could help frame federal-state coordination going forward. Such a cooperative response would avoid unnecessary federal-state conflict and allow policymakers to approach shareholder arbitration with expertise, accountability, and mutual respect.
{"title":"A Cooperative Federalism Approach to Shareholder Arbitration","authors":"Z. Clopton, Verity Winship","doi":"10.31228/osf.io/2yu3t","DOIUrl":"https://doi.org/10.31228/osf.io/2yu3t","url":null,"abstract":"128 Yale Law Journal Forum 169 (2018).Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. In particular, the overlapping authority of federal and state actors with respect to corporate law calls for approaches that sound in cooperative federalism. Yet cooperative-federalist approaches have been absent from recent debates about shareholder arbitration. This Essay explains why cooperative federalism is a natural fit for addressing these issues. Moreover, we marshal specific examples of cooperative solutions in this area that could help frame federal-state coordination going forward. Such a cooperative response would avoid unnecessary federal-state conflict and allow policymakers to approach shareholder arbitration with expertise, accountability, and mutual respect.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"2 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2018-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90650034","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound — across and within district courts — and produce a pleading system that is arbitrary, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard — one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
{"title":"Pleading Poverty in Federal Court","authors":"Andrew Hammond","doi":"10.2139/SSRN.3102522","DOIUrl":"https://doi.org/10.2139/SSRN.3102522","url":null,"abstract":"What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound — across and within district courts — and produce a pleading system that is arbitrary, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard — one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"38 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2018-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87322452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of * * * sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is hard to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities. Treatment of anti-gay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most Members of Congress have ignored it. This is an idea that has ripened over time, however. New circumstances have rendered the argument not only plausible but compelling. The biggest new development has been social facts and assumptions about sex minorities: In 1964, employees thought to be “homosexuals” were outside the scope of the merit-based workplace, because Americans believed them to be mentally ill, psychopathic, and predatory. Today, those views have been discredited, and this connects with a second new circumstance, a radically different constitutional baseline. As late as 2003, “homosexuals” could constitutionally be considered presumptive criminals, but the Supreme Court has for twenty years been developing a constitutional norm that gay people cannot be excluded from the law because of who they are. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., “homosexual”) couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the “statutory history” of Title VII — its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females and does nothing more than require employers to apply the same rules to both sexes; anti-homosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme
{"title":"Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections","authors":"William N. Eskridge","doi":"10.2139/SSRN.3024259","DOIUrl":"https://doi.org/10.2139/SSRN.3024259","url":null,"abstract":"The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of * * * sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is hard to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities. \u0000Treatment of anti-gay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most Members of Congress have ignored it. This is an idea that has ripened over time, however. New circumstances have rendered the argument not only plausible but compelling. The biggest new development has been social facts and assumptions about sex minorities: In 1964, employees thought to be “homosexuals” were outside the scope of the merit-based workplace, because Americans believed them to be mentally ill, psychopathic, and predatory. Today, those views have been discredited, and this connects with a second new circumstance, a radically different constitutional baseline. As late as 2003, “homosexuals” could constitutionally be considered presumptive criminals, but the Supreme Court has for twenty years been developing a constitutional norm that gay people cannot be excluded from the law because of who they are. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., “homosexual”) couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. \u0000A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the “statutory history” of Title VII — its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females and does nothing more than require employers to apply the same rules to both sexes; anti-homosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"14 1","pages":"322"},"PeriodicalIF":6.4,"publicationDate":"2017-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79367624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted. This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm. Today, the law increasingly accommodates families formed through ART, and, in doing so, recognizes parents on not only biological but also social grounds. Yet, as courts and legislatures approach the parental claims of women and same-sex couples within existing frameworks organized around marital and biological relationships, they reproduce some of the very gender- and sexuality-based asymmetries embedded in those frameworks. With biological connection continuing to anchor nonmarital parenthood, unmarried gays and lesbians face barriers to parental recognition. With the gender-differentiated, heterosexual family continuing to structure marital parenthood, the law organizes the legal family around a biological mother. Against this backdrop, nonbiological mothers in different-sex couples, as well as nonbiological fathers in same-sex couples, struggle for parental recognition. To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
奥贝格费尔诉霍奇斯案(Obergefell v. Hodges)之后，法院和立法机构声称，在原则上，他们已经否定了在家庭法律规制中，异性对同性伴侣的特权，以及男性对女性的特权。但是，正如围绕辅助生殖技术(ART)的斗争所表明的那样，在父母承认的法律中，这种特权仍然存在。那些打破传统性别和性规范的人——将母性与生物关系分开的女性(例如，通过代孕)，以及与同性伴侣组成家庭的女性和男性——经常发现他们的亲子关系受到了折扣。本文探讨了在父母承认法中充分维护性别和性取向平等的意义。它通过将通过抗逆转录病毒疗法形成的家庭的治疗置于更长的亲子史中来实现这一目标。当代法律中持续存在的不平等可以追溯到更早的时代。在最初通过婚姻来定义亲子关系的过程中，普通法将亲子关系置于性别等级森严的异性恋秩序之中。最终，法院和立法机构否定了普通法制度，并保护婚外形成的亲生亲子关系。虽然这种从生物学联系中获得父母认可的努力受到平等主义冲动的推动，但它也是在性别分化的异性恋范式中运作的。今天，法律越来越多地照顾到通过抗逆转录病毒治疗形成的家庭，这样做不仅在生物学上而且在社会上承认父母。然而，当法院和立法机构在现有的围绕婚姻和生物关系组织的框架内处理女性和同性伴侣的父母权利要求时，它们再现了这些框架中嵌入的一些基于性别和性的不对称。随着血缘关系继续锚定非婚父母关系，未婚的男女同性恋者面临着获得父母认可的障碍。随着性别分化，异性恋家庭继续构建婚姻父母关系，法律围绕生母组织合法家庭。在这种背景下，异性伴侣中的非亲生母亲，以及同性伴侣中的非亲生父亲，都在努力争取父母的认可。为了保护妇女和男女同性恋者为人父母的利益，本文敦促更多地强调为人父母的社会层面。当然，正如我们的普通法起源所表明的那样，法律长期以来一直承认父母关系是基于社会而不是简单的生理基础。但今天，对平等的承诺需要重新调整家庭法，使父母的认可更充分、更公平地体现在社会贡献上。虽然本文主要关注州一级家庭法的改革，但它也考虑到最终的宪法监督。
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Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation. We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics. We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions. When we speak of ordinary meaning we are asking an empirical question — about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
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Pub Date : 2016-04-01DOI: 10.5040/9781408166710.ch-047
Sarah A. Seo
By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police's discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 196os who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police's discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime. A U T H 0 R. I am grateful for the comments and encouragement received from the participants at the Modern America Workshop at Princeton University, the Legal History Colloquium at New York University School of Law, the Institute for Constitutional Studies at Stanford Law School, and the Contemporary Issues in Legal Scholarship Workshop at Yale Law School. I am especially indebted to Judge Guido Calabresi, Margot Canaday, Anne Coughlin, Risa Goluboff, Dirk Hartog, Laura Kalman, William Nelson, Daniel Rodgers, and David Sklansky.
{"title":"The New Public","authors":"Sarah A. Seo","doi":"10.5040/9781408166710.ch-047","DOIUrl":"https://doi.org/10.5040/9781408166710.ch-047","url":null,"abstract":"By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police's discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 196os who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police's discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime. A U T H 0 R. I am grateful for the comments and encouragement received from the participants at the Modern America Workshop at Princeton University, the Legal History Colloquium at New York University School of Law, the Institute for Constitutional Studies at Stanford Law School, and the Contemporary Issues in Legal Scholarship Workshop at Yale Law School. I am especially indebted to Judge Guido Calabresi, Margot Canaday, Anne Coughlin, Risa Goluboff, Dirk Hartog, Laura Kalman, William Nelson, Daniel Rodgers, and David Sklansky.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"6 1","pages":"2"},"PeriodicalIF":6.4,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91369513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"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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