Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the Monster Bank gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of rotation in office created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation. The Democracy established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. The Democracy did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected President's power to carry out the people's will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in presidentialist terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated
{"title":"Administration and 'The Democracy': Administrative Law from Jackson to Lincoln, 1829-1861","authors":"J. Mashaw","doi":"10.2307/20454693","DOIUrl":"https://doi.org/10.2307/20454693","url":null,"abstract":"Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the Monster Bank gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of rotation in office created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation. The Democracy established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. The Democracy did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected President's power to carry out the people's will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in presidentialist terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated ","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83384961","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}
When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the section 1983 lawsuits that have historically monitored state compliance with fundamental federal Medicaid requirements may now be impermissible due to recent legislative developments. Anticipating a scramble to find alternative means of enforcement, a novel solution - using administrative hearings to compel states to conform to the federal requirements - may prove to be the most appropriate remaining mechanism for bridging the impending accountability gap.
{"title":"Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements","authors":"Jon Donenberg","doi":"10.2307/20454686","DOIUrl":"https://doi.org/10.2307/20454686","url":null,"abstract":"When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the section 1983 lawsuits that have historically monitored state compliance with fundamental federal Medicaid requirements may now be impermissible due to recent legislative developments. Anticipating a scramble to find alternative means of enforcement, a novel solution - using administrative hearings to compel states to conform to the federal requirements - may prove to be the most appropriate remaining mechanism for bridging the impending accountability gap.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88730364","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 recent case of Jean v. Massachusetts State Police, the First Circuit suggested that a man who secretly audiotaped and videotaped police officers conducting a warrantless search of his home might have violated the Massachusetts tape recording law, because Massachusetts (along with several other states) criminalizes recording a communication without the knowledge or consent of all parties to the communication. This Comment argues that citizen tape recording, such as the recording that was made in Jean, provides a necessary check against police abuses of power and furthers privacy values underlying the Constitution and other laws. But the Comment acknowledges that police officers’ interests in privacy and safety must be balanced as well. Therefore, it argues that states should permit citizens to record police officers in the line of duty without those officers’ consent, as long as the citizens' recordings are made in a physically unintrusive manner and do not capture police communications that the officers could reasonably expect not to be recorded.
在最近的Jean v. Massachusetts State Police一案中，第一巡回法院认为，一名男子秘密地对警察在没有搜查令的情况下对他的家进行录音和录像，可能违反了马萨诸塞州的录音记录法，因为马萨诸塞州(以及其他几个州)将在不知情或未经通信各方同意的情况下录制通信视为犯罪。本评论认为，公民的录音，例如在Jean录制的录音，提供了对警察滥用权力的必要检查，并进一步加强了宪法和其他法律所依据的隐私价值。但评论承认，警察在隐私和安全方面的利益也必须得到平衡。因此，它认为，各州应该允许公民在没有警察同意的情况下记录警察的执勤情况，只要公民的记录是以一种不侵犯身体的方式进行的，并且不包括警察可以合理地期望不被记录的警察通信。
{"title":"Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Officers' Power","authors":"Dina Mishra","doi":"10.2307/20454687","DOIUrl":"https://doi.org/10.2307/20454687","url":null,"abstract":"In the recent case of Jean v. Massachusetts State Police, the First Circuit suggested that a man who secretly audiotaped and videotaped police officers conducting a warrantless search of his home might have violated the Massachusetts tape recording law, because Massachusetts (along with several other states) criminalizes recording a communication without the knowledge or consent of all parties to the communication. This Comment argues that citizen tape recording, such as the recording that was made in Jean, provides a necessary check against police abuses of power and furthers privacy values underlying the Constitution and other laws. But the Comment acknowledges that police officers’ interests in privacy and safety must be balanced as well. Therefore, it argues that states should permit citizens to record police officers in the line of duty without those officers’ consent, as long as the citizens' recordings are made in a physically unintrusive manner and do not capture police communications that the officers could reasonably expect not to be recorded.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74528803","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}
As litigation costs rapidly rise, the United States needs a just and effective, but lower-cost, manner to resolve disputes. For years, arbitration has been that alternative Unfortunately, recent disagreement among the circuits on the scope of arbitrators' authority to compel testimony or document production as conferred by the Federal Arbitration Act (FAA)2 threatens to undermine the desirability and efficacy of arbitration resolution.' When there is uncertainty as to the ability of parties to obtain and analyze information prior to a hearing, contracting parties may perceive arbitration as an unjust or ineffective manner for resolving disputes, and thus will likely not opt in to arbitration proceedings. This may be particularly acute in industries, such as health insurance or reinsurance, in which critical information often resides with nonparties. As parties shift from arbitration to litigation, the overall costs of enforcing their contracts will increase, which will cause the gains from each contract to fall, suggesting that the marginal contract will not be made. To keep arbitration as an effective mode of dispute resolution and maximize the number of efficient contracts made, this procedural issue must be resolved. Congress must take action to clarify the scope of arbitrators' authority and empower them to issue enforceable nonparty subpoenas for prehearing
{"title":"Balancing Burdens: Clarifying the Discovery Standard in Arbitration Proceedings","authors":"Anne B O'Hagen","doi":"10.2307/20454688","DOIUrl":"https://doi.org/10.2307/20454688","url":null,"abstract":"As litigation costs rapidly rise, the United States needs a just and effective, but lower-cost, manner to resolve disputes. For years, arbitration has been that alternative Unfortunately, recent disagreement among the circuits on the scope of arbitrators' authority to compel testimony or document production as conferred by the Federal Arbitration Act (FAA)2 threatens to undermine the desirability and efficacy of arbitration resolution.' When there is uncertainty as to the ability of parties to obtain and analyze information prior to a hearing, contracting parties may perceive arbitration as an unjust or ineffective manner for resolving disputes, and thus will likely not opt in to arbitration proceedings. This may be particularly acute in industries, such as health insurance or reinsurance, in which critical information often resides with nonparties. As parties shift from arbitration to litigation, the overall costs of enforcing their contracts will increase, which will cause the gains from each contract to fall, suggesting that the marginal contract will not be made. To keep arbitration as an effective mode of dispute resolution and maximize the number of efficient contracts made, this procedural issue must be resolved. Congress must take action to clarify the scope of arbitrators' authority and empower them to issue enforceable nonparty subpoenas for prehearing","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80528434","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}
When Congress passed the Rules Enabling Act (REA), it deferred to the Supreme Court's institutional expertise to enact guidelines for judicial procedure. In the REA, Congress included a provision - now known as the supersession clause - that declared existing statutes in conflict with new rules to "be of no further force or effect." This Comment examines a divergence between 18 U.S.C. 3731 and Federal Rule of Appellate Procedure 4(b)(1)(B) that implicates the supersession clause. Three circuits have adjudicated this conflict and reached different conclusions. The substance of the conflict concerns the timeliness of government appeals of district court decisions and orders in criminal cases. At present, Rule 4(b) permits a longer appellate time limit than 3731, but a 2007 Supreme Court case, Bowles v. Russell, may invalidate any limit longer than that in 3731. This Comment asserts that irrespective of Bowles, applying the supersession clause favors the primacy of Rule 4(b). Employing the supersession clause provides a blueprint for future rule-statute disputes concerning timeliness. In making these determinations, this Comment argues that courts should evaluate the rule versus the statute according to three metrics: the relative recency of enactment, the institutional competence of the respective authors to decide the issue, and the degree to which the rule affects substantive rights.
当国会通过《规则授权法》(REA)时，它把制定司法程序指导方针的权力交给了最高法院的机构专家。在REA中，国会加入了一项条款——现在被称为“取代条款”——宣布现有法规与新规则相冲突时“不再具有进一步的效力”。本评论审查了《美国法典》第18编第3731条与《联邦上诉程序规则》第4(b)(1)(b)条之间涉及“取代条款”的分歧。三个巡回法院对这一冲突进行了裁决，得出了不同的结论。冲突的实质关系到政府对地方法院刑事案件的判决和命令提出上诉的及时性。目前，规则4(b)允许比3731更长的上诉时限，但2007年最高法院鲍尔斯诉拉塞尔案(Bowles v. Russell)可能使任何比3731更长的上诉时限无效。本评论认为，无论鲍尔斯案如何，适用替代条款都有利于规则4(b)的首要地位。采用替代条款为未来有关时效的法规纠纷提供了一个蓝图。在作出这些决定时，本评论认为，法院应根据三个指标来评估规则与成文法的关系:颁布的相对时间较近，各自的作者决定问题的机构能力，以及规则对实体权利的影响程度。
{"title":"A Blueprint for Applying the Rules Enabling Act's Supersession Clause","authors":"A. Vitarelli","doi":"10.2307/20454679","DOIUrl":"https://doi.org/10.2307/20454679","url":null,"abstract":"When Congress passed the Rules Enabling Act (REA), it deferred to the Supreme Court's institutional expertise to enact guidelines for judicial procedure. In the REA, Congress included a provision - now known as the supersession clause - that declared existing statutes in conflict with new rules to \"be of no further force or effect.\" This Comment examines a divergence between 18 U.S.C. 3731 and Federal Rule of Appellate Procedure 4(b)(1)(B) that implicates the supersession clause. Three circuits have adjudicated this conflict and reached different conclusions. The substance of the conflict concerns the timeliness of government appeals of district court decisions and orders in criminal cases. At present, Rule 4(b) permits a longer appellate time limit than 3731, but a 2007 Supreme Court case, Bowles v. Russell, may invalidate any limit longer than that in 3731. This Comment asserts that irrespective of Bowles, applying the supersession clause favors the primacy of Rule 4(b). Employing the supersession clause provides a blueprint for future rule-statute disputes concerning timeliness. In making these determinations, this Comment argues that courts should evaluate the rule versus the statute according to three metrics: the relative recency of enactment, the institutional competence of the respective authors to decide the issue, and the degree to which the rule affects substantive rights.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74152771","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}
A B ST R ACT. This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given type of error is "structural" and thus requires automatic reversal. The rule of automatic reversal should apply only to types of error that never contribute to a verdict.
{"title":"The Case Against Automatic Reversal of Structural Errors","authors":"S. Shepard","doi":"10.2307/20454677","DOIUrl":"https://doi.org/10.2307/20454677","url":null,"abstract":"A B ST R ACT. This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given type of error is \"structural\" and thus requires automatic reversal. The rule of automatic reversal should apply only to types of error that never contribute to a verdict.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89310483","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}
Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the language of the statute itself and in the courts’ so-called literalist reading of its definition of disability. As a result, many disability rights advocates have pinned their hopes for doctrinal reform on the proposed ADA Restoration Act, now in congressional committee. Although the Act would likely be a boon to plaintiffs, its chances of passage are uncertain. This Article tells a very different story of the problem and its solution. I agree that blame should fall on the courts, but not for reading the statute too closely. Rather, they have not read it closely enough. A truly rigorous interpretation of the ADA would expose a structural ambiguity in the regarded-as prong of the disability definition, with important consequences for interpretation. Although this ambiguity is a basic one — the kind that we resolve every day without thinking about it — it creates what is in fact a nine-way ambiguity in the statute. The courts have to date overlooked all but one of a corresponding nine readings; the other eight are effectively lost. Drawing on ordinary intuitions about sentence meaning, and borrowing some basic conceptual tools from formal linguistics, this Article aims to make ambiguity in the regarded-as prong visible to the reader. This opens the door to invoking the ADA’s rich legislative history for the purpose of resolving the ambiguity. Such history favors a broad reading of the statute and would mark a departure from an era of increasingly narrow interpretation of the ADA’s disability definition. Thus, while it may be a surprising alliance to consider, formal linguistic rigor in the hands of civil rights advocates holds the potential to realign ADA jurisprudence with the statute’s purpose.
{"title":"Just Semantics: The Lost Readings of the Americans with Disabilities Act","authors":"Jill C. Anderson","doi":"10.2307/20454674","DOIUrl":"https://doi.org/10.2307/20454674","url":null,"abstract":"Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the language of the statute itself and in the courts’ so-called literalist reading of its definition of disability. As a result, many disability rights advocates have pinned their hopes for doctrinal reform on the proposed ADA Restoration Act, now in congressional committee. Although the Act would likely be a boon to plaintiffs, its chances of passage are uncertain. This Article tells a very different story of the problem and its solution. I agree that blame should fall on the courts, but not for reading the statute too closely. Rather, they have not read it closely enough. A truly rigorous interpretation of the ADA would expose a structural ambiguity in the regarded-as prong of the disability definition, with important consequences for interpretation. Although this ambiguity is a basic one — the kind that we resolve every day without thinking about it — it creates what is in fact a nine-way ambiguity in the statute. The courts have to date overlooked all but one of a corresponding nine readings; the other eight are effectively lost. Drawing on ordinary intuitions about sentence meaning, and borrowing some basic conceptual tools from formal linguistics, this Article aims to make ambiguity in the regarded-as prong visible to the reader. This opens the door to invoking the ADA’s rich legislative history for the purpose of resolving the ambiguity. Such history favors a broad reading of the statute and would mark a departure from an era of increasingly narrow interpretation of the ADA’s disability definition. Thus, while it may be a surprising alliance to consider, formal linguistic rigor in the hands of civil rights advocates holds the potential to realign ADA jurisprudence with the statute’s purpose.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90465935","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 Pregnancy Discrimination Act (PDA)2 amended Title VII of the Civil Rights Act of 1964' to combat systemic workplace discrimination against women because of their reproductive capacity. Congress drafted the PDA to frame pregnancy discrimination broadly in pursuit of this ambitious goal, intending to protect women "before, during, and after" pregnancy.4 The ambiguity of the Act's text and legislative history, however, has caused confusion in the courts, which have differed in their interpretations of the PDA's scope. Many of these disagreements have centered on what types of employer actions constitute "discrimination" and whether the PDA entitles a woman to accommodation or simply protection from discrimination. This Comment focuses instead on a prior question: who is sufficiently "affected by pregnancy, childbirth, or related medical conditions"' to qualify for the PDA's protection? This preliminary decision is a crucial, yet underexplored, component of the discussion about the PDA's scope.
{"title":"Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?","authors":"Jill E. Habig","doi":"10.2307/20454678","DOIUrl":"https://doi.org/10.2307/20454678","url":null,"abstract":"The Pregnancy Discrimination Act (PDA)2 amended Title VII of the Civil Rights Act of 1964' to combat systemic workplace discrimination against women because of their reproductive capacity. Congress drafted the PDA to frame pregnancy discrimination broadly in pursuit of this ambitious goal, intending to protect women \"before, during, and after\" pregnancy.4 The ambiguity of the Act's text and legislative history, however, has caused confusion in the courts, which have differed in their interpretations of the PDA's scope. Many of these disagreements have centered on what types of employer actions constitute \"discrimination\" and whether the PDA entitles a woman to accommodation or simply protection from discrimination. This Comment focuses instead on a prior question: who is sufficiently \"affected by pregnancy, childbirth, or related medical conditions\"' to qualify for the PDA's protection? This preliminary decision is a crucial, yet underexplored, component of the discussion about the PDA's scope.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82832872","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}
Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently haphazardly carved up between two tracks of international lawmaking, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. Moreover, the process for making international law that is outlined in the U.S. Constitution is close to unique in cross-national perspective. To explain how the United States came to have such a haphazard and unusual system, this Article traces the history of U.S. international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events that for the most part have little or no continuing significance. The Treaty Clause process is demonstrably inferior to the congressional-executive agreement process as a matter of public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, this Article concludes by charting a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with ex post congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, effective, and democratic.international law more sensible, more effective, and more democratic.
{"title":"Treaties' End: The Past, Present, and Future of International Lawmaking in the United States","authors":"Oona A. Hathaway","doi":"10.2307/20454683","DOIUrl":"https://doi.org/10.2307/20454683","url":null,"abstract":"Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently haphazardly carved up between two tracks of international lawmaking, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. Moreover, the process for making international law that is outlined in the U.S. Constitution is close to unique in cross-national perspective. To explain how the United States came to have such a haphazard and unusual system, this Article traces the history of U.S. international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events that for the most part have little or no continuing significance. The Treaty Clause process is demonstrably inferior to the congressional-executive agreement process as a matter of public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, this Article concludes by charting a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with ex post congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, effective, and democratic.international law more sensible, more effective, and more democratic.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76817273","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 Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that an employee was barred from suing her employer for pay discrimination under Title VII. The plaintiff, Lilly Ledbetter, was a twenty-year employee of Goodyear who, over the course of her employment, repeatedly received lower raises than her male counterparts because supervisors had given her negative evaluations due to her sex.2 By the end of her employment at Goodyear, Ledbetter's salary was significantly lower than those of any of her male peers.' The Supreme Court, however, held that Ledbetter could not recover because she failed to comply with the Equal Employment Opportunity Commission (EEOC) charge provision, which requires that plaintiffs file claims of employment discrimination with the EEOC within 18o days of the discriminatory act before they may sue under Title VII.4 The Court held that only the initial pay-setting decisions themselves constituted discrete acts of discrimination; subsequent paychecks were merely "adverse effects" lacking the intent required to establish disparate treatment.'
在莱德贝特诉固特异轮胎橡胶公司(Ledbetter v. Goodyear Tire & Rubber Co.)一案中，最高法院裁定，根据《教育法》第七章，雇员不得以薪酬歧视为由起诉雇主。原告莉莉·莱德贝特(Lilly Ledbetter)在固特异公司工作了20年，在工作期间，由于上司对她的性别给予了负面评价，她的加薪幅度一再低于男性同事在古德伊尔工作结束时，莱德贝特的薪水明显低于其他男性同事。”然而，最高法院认为莱德贝特不能获得赔偿，因为她没有遵守平等就业机会委员会(EEOC)的指控条款，该条款要求原告在歧视行为发生后的180天内向平等就业机会委员会提出就业歧视索赔，然后才能根据第七章提起诉讼。法院认为，只有最初的薪酬设定决定本身构成了独立的歧视行为;随后的薪水只是“不利影响”，缺乏建立差别待遇所需的意图。
{"title":"Ledbetter in Congress: The Limits of a Narrow Legislative Override","authors":"Kathryn A. Eidmann","doi":"10.2307/20455815","DOIUrl":"https://doi.org/10.2307/20455815","url":null,"abstract":"In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that an employee was barred from suing her employer for pay discrimination under Title VII. The plaintiff, Lilly Ledbetter, was a twenty-year employee of Goodyear who, over the course of her employment, repeatedly received lower raises than her male counterparts because supervisors had given her negative evaluations due to her sex.2 By the end of her employment at Goodyear, Ledbetter's salary was significantly lower than those of any of her male peers.' The Supreme Court, however, held that Ledbetter could not recover because she failed to comply with the Equal Employment Opportunity Commission (EEOC) charge provision, which requires that plaintiffs file claims of employment discrimination with the EEOC within 18o days of the discriminatory act before they may sue under Title VII.4 The Court held that only the initial pay-setting decisions themselves constituted discrete acts of discrimination; subsequent paychecks were merely \"adverse effects\" lacking the intent required to establish disparate treatment.'","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77938003","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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