Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council — is one of the central jurisprudential principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that judicial deference’s roots stem back to statutory-interpretation cases from the early Nineteenth Century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multi-factor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified Nineteenth Century statutory-interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the Nineteenth Century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework in the early Twentieth Century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law — the APA — was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.
{"title":"The Origins of Judicial Deference to Executive Interpretation","authors":"Aditya Bamzai","doi":"10.2139/SSRN.2649445","DOIUrl":"https://doi.org/10.2139/SSRN.2649445","url":null,"abstract":"Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council — is one of the central jurisprudential principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that judicial deference’s roots stem back to statutory-interpretation cases from the early Nineteenth Century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multi-factor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified Nineteenth Century statutory-interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the Nineteenth Century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework in the early Twentieth Century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law — the APA — was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2015-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83811070","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 domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remained unclear; in particular, confusion persists over whether it applies only to diversity cases, or to federal questions as well. This Note argues that the domestic-relations exception does not, as a matter of positive law, apply to federal-question cases. Applying the exception to bar federal courts from jurisdiction over bona fide federal questions would violate Article III, which endows federal courts with jurisdiction over all federal-question cases in law or equity. Additionally, the federal-question jurisdiction statute is best read as reflecting a congressional intent that federal jurisdiction extend to domestic-relations matters that raise questions of federal law. Federal courts have the authority to resolve important and timely questions of federal law. The domestic-relations exception should not be misconstrued to stand in their way.
{"title":"Federal Questions and the Domestic-Relations Exception","authors":"B. Silverman","doi":"10.2139/SSRN.2629956","DOIUrl":"https://doi.org/10.2139/SSRN.2629956","url":null,"abstract":"The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remained unclear; in particular, confusion persists over whether it applies only to diversity cases, or to federal questions as well. This Note argues that the domestic-relations exception does not, as a matter of positive law, apply to federal-question cases. Applying the exception to bar federal courts from jurisdiction over bona fide federal questions would violate Article III, which endows federal courts with jurisdiction over all federal-question cases in law or equity. Additionally, the federal-question jurisdiction statute is best read as reflecting a congressional intent that federal jurisdiction extend to domestic-relations matters that raise questions of federal law. Federal courts have the authority to resolve important and timely questions of federal law. The domestic-relations exception should not be misconstrued to stand in their way.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2015-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82166326","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}
One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress’s constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to “define and punish...Offences against the Law of Nations” is limited to customary international law. But the Framers of the Constitution understood the law of nations to include both custom and treaties, or what they called “the conventional law of nations.” The history and purpose of the Offenses Clause show that it was intended to reach treaties and — despite the prevailing view in the academy — that Congress and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.
美国宪法的主要目的之一是赋予联邦政府遵守其国际法律承诺的权力。国会执行条约的宪法权力范围最近受到特别关注。在Bond v. United States案中，最高法院通过解释一项尊重联邦制的法规，避免了宪法问题，但这些问题不太可能消失。本文通过将“犯罪条款”确定为国会履行某些条约承诺的宪法权力的额外来源，对正在进行的辩论做出了贡献。过去的学术假设第一条有权“定义和惩罚……”“违反国际法的罪行”仅限于习惯国际法。但制宪者认为国内法既包括习惯也包括条约，即他们所说的“国内法”。犯罪条款的历史和目的表明，它的目的是达成条约，而且——尽管学术界普遍持这种观点——国会和最高法院在我国历史的大部分时间里都对该条款有共同的理解。
{"title":"Defining and Punishing Offenses Under Treaties","authors":"Sarah H. Cleveland, William S. Dodge","doi":"10.2139/SSRN.2310779","DOIUrl":"https://doi.org/10.2139/SSRN.2310779","url":null,"abstract":"One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress’s constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to “define and punish...Offences against the Law of Nations” is limited to customary international law. But the Framers of the Constitution understood the law of nations to include both custom and treaties, or what they called “the conventional law of nations.” The history and purpose of the Offenses Clause show that it was intended to reach treaties and — despite the prevailing view in the academy — that Congress and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86730760","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}
Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Courts have treated administrative severability clauses in this way largely because they have mistakenly analogized them to severability clauses contained in statutes. While Congress routinely includes severability clauses in statutes that are drafted in distinct iterations, by different committees with legislative staff who often lack the time and expertise to consider the clauses’ potential ramifications, administrative agencies use these clauses with more care. This Article proposes a Chevron-style deference framework for administrative severability clauses. Under this framework, after a reviewing court has set aside a challenged regulatory provision, the court should defer to a promulgating agency’s opinion on severability as expressed through a severability clause, unless the remainder of the rule itself would suffer from legal defects resulting from the court’s invalidation of the challenged provisions. This framework would better promote the overarching goals of administrative law than do current judicial doctrine and agency practice.
{"title":"Administrative Severability Clauses","authors":"J. Mashaw","doi":"10.2139/SSRN.2362452","DOIUrl":"https://doi.org/10.2139/SSRN.2362452","url":null,"abstract":"Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Courts have treated administrative severability clauses in this way largely because they have mistakenly analogized them to severability clauses contained in statutes. While Congress routinely includes severability clauses in statutes that are drafted in distinct iterations, by different committees with legislative staff who often lack the time and expertise to consider the clauses’ potential ramifications, administrative agencies use these clauses with more care. This Article proposes a Chevron-style deference framework for administrative severability clauses. Under this framework, after a reviewing court has set aside a challenged regulatory provision, the court should defer to a promulgating agency’s opinion on severability as expressed through a severability clause, unless the remainder of the rule itself would suffer from legal defects resulting from the court’s invalidation of the challenged provisions. This framework would better promote the overarching goals of administrative law than do current judicial doctrine and agency practice.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2015-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74993072","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 Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.
{"title":"Rules Against Rulification","authors":"Michaela Coenen","doi":"10.2139/SSRN.2388927","DOIUrl":"https://doi.org/10.2139/SSRN.2388927","url":null,"abstract":"The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73836029","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 jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system. In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as "contentious" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or "non-contentious" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments. Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.
{"title":"Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction","authors":"James E. Pfander, D. Birk","doi":"10.2139/SSRN.2538423","DOIUrl":"https://doi.org/10.2139/SSRN.2538423","url":null,"abstract":"The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system. In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as \"contentious\" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or \"non-contentious\" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments. Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2014-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75488286","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}
This Note joins a growing chorus of scholarship criticizing the lack of proportionality analysis in the Supreme Court’s Fourth Amendment jurisprudence. Rather than simply bemoan the current state of legal doctrine, we offer a practical test that state and federal courts could use to determine the permissible scope of pedestrian stop-and-frisks. Specifically, we propose that courts adopt an offense-severity model that distinguishes minor offenses (like jaywalking, public alcohol consumption, and simple trespass) from more serious misdemeanors and felonies. Two state supreme courts — Massachusetts’ and Washington’s — have already adopted a similar approach. As a result, police in those states may not engage in intrusive stop-and-frisks based on mere suspicion of noncriminal infractions. Our Note takes these decisions as a starting point to engage in a broader debate about crime-severity’s usefulness as a rubric for assessing police conduct under the Fourth Amendment and its state law equivalents.
{"title":"An Offense-Severity Model for Stop-and-Frisks","authors":"D. Keenan, T. Thomas","doi":"10.2139/SSRN.2235707","DOIUrl":"https://doi.org/10.2139/SSRN.2235707","url":null,"abstract":"This Note joins a growing chorus of scholarship criticizing the lack of proportionality analysis in the Supreme Court’s Fourth Amendment jurisprudence. Rather than simply bemoan the current state of legal doctrine, we offer a practical test that state and federal courts could use to determine the permissible scope of pedestrian stop-and-frisks. Specifically, we propose that courts adopt an offense-severity model that distinguishes minor offenses (like jaywalking, public alcohol consumption, and simple trespass) from more serious misdemeanors and felonies. Two state supreme courts — Massachusetts’ and Washington’s — have already adopted a similar approach. As a result, police in those states may not engage in intrusive stop-and-frisks based on mere suspicion of noncriminal infractions. Our Note takes these decisions as a starting point to engage in a broader debate about crime-severity’s usefulness as a rubric for assessing police conduct under the Fourth Amendment and its state law equivalents.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2013-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73529400","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}
Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decsiions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciatiions of democratic majoritarianism.
{"title":"Five to Four: Why do Bare Majorities Rule on Courts?","authors":"Jeremy Waldron","doi":"10.2139/SSRN.2195768","DOIUrl":"https://doi.org/10.2139/SSRN.2195768","url":null,"abstract":"Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decsiions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciatiions of democratic majoritarianism.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2013-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87144660","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}
Pub Date : 2013-01-01DOI: 10.1007/978-94-007-6067-7_5
Jules L. Coleman
{"title":"The Architecture of Jurisprudence","authors":"Jules L. Coleman","doi":"10.1007/978-94-007-6067-7_5","DOIUrl":"https://doi.org/10.1007/978-94-007-6067-7_5","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80021447","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 rule of lenity instructs courts to resolve statutory ambiguity in the defendant’s favor. One goal of the rule is to ensure that defendants have fair notice of the scope of criminal prohibitions. While lenity has deep roots in the common law, a majority of state legislatures have passed statutes instructing courts not to follow the rule of lenity in criminal cases. Some state courts abide by the legislature’s lenity-displacing command; others explicitly disregard it; and most have come down somewhere in between — neither disclaiming the rule of lenity entirely nor employing it explicitly. But judges cannot have it both ways. If they try to construe laws to be consistent with the lenity canon’s notice-giving values while avoiding an outright clash with the state legislature, they undermine the very same values that they seek to preserve. After all, if the rule of lenity is meant (at least in part) to ensure that potential criminal defendants are put on notice about the illegality of their actions, then if the courts are not clear about the interpretive method they are using, criminal defendants risk being left in the dark not only about the meaning of a state’s substantive laws, but also about how the courts will decide how to decide what the law means. A rule of lenity whose application is uncertain may be just as problematic from a fair-notice perspective as having no rule of lenity at all.
{"title":"Fair Notice About Fair Notice","authors":"J. Love","doi":"10.2139/SSRN.2035995","DOIUrl":"https://doi.org/10.2139/SSRN.2035995","url":null,"abstract":"The rule of lenity instructs courts to resolve statutory ambiguity in the defendant’s favor. One goal of the rule is to ensure that defendants have fair notice of the scope of criminal prohibitions. While lenity has deep roots in the common law, a majority of state legislatures have passed statutes instructing courts not to follow the rule of lenity in criminal cases. Some state courts abide by the legislature’s lenity-displacing command; others explicitly disregard it; and most have come down somewhere in between — neither disclaiming the rule of lenity entirely nor employing it explicitly. But judges cannot have it both ways. If they try to construe laws to be consistent with the lenity canon’s notice-giving values while avoiding an outright clash with the state legislature, they undermine the very same values that they seek to preserve. After all, if the rule of lenity is meant (at least in part) to ensure that potential criminal defendants are put on notice about the illegality of their actions, then if the courts are not clear about the interpretive method they are using, criminal defendants risk being left in the dark not only about the meaning of a state’s substantive laws, but also about how the courts will decide how to decide what the law means. A rule of lenity whose application is uncertain may be just as problematic from a fair-notice perspective as having no rule of lenity at all.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2012-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82362420","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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