The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence land use planning in the absence of regulatory solutions or alternative venues. To address these problems, state and local governments should implement what I call a “regulatory balances” regime, strengthening participatory planning venues and funding the resulting measures. author. Yale Law School, J.D. expected 2007; Dartmouth College, A.B. 2002. I send my heartfelt gratitude to my fiance, Samuel Wiseman, for his constant support and help—from editing to organization to encouragement—throughout this process. Thanks also to my parents for their patience; to Josh Berman for the topic suggestion; to Adam Dressner, Andrea Gelatt, Grace Leslie, and Matthew Splitek for assistance with sources; and to Will Baude, Megan Ceronsky, Nicole Johnson, and other members of the Property, Social Justice, and the Environment Seminar for constructive discussion. Finally, many thanks to David Spohr and Professor Carol Rose, and to Annie Decker and the other editors of The Yale Law Journal, for their invaluable editing and reviewing assistance. JACOBSFORMATTEDFORSC1_01-31-07 5/17/2007 9:35:24 AM searching for balance
{"title":"Searching for Balance in the Aftermath of the 2006 Takings Initiatives","authors":"Hannah L. Jacobs","doi":"10.2307/20455767","DOIUrl":"https://doi.org/10.2307/20455767","url":null,"abstract":"The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence land use planning in the absence of regulatory solutions or alternative venues. To address these problems, state and local governments should implement what I call a “regulatory balances” regime, strengthening participatory planning venues and funding the resulting measures. author. Yale Law School, J.D. expected 2007; Dartmouth College, A.B. 2002. I send my heartfelt gratitude to my fiance, Samuel Wiseman, for his constant support and help—from editing to organization to encouragement—throughout this process. Thanks also to my parents for their patience; to Josh Berman for the topic suggestion; to Adam Dressner, Andrea Gelatt, Grace Leslie, and Matthew Splitek for assistance with sources; and to Will Baude, Megan Ceronsky, Nicole Johnson, and other members of the Property, Social Justice, and the Environment Seminar for constructive discussion. Finally, many thanks to David Spohr and Professor Carol Rose, and to Annie Decker and the other editors of The Yale Law Journal, for their invaluable editing and reviewing assistance. JACOBSFORMATTEDFORSC1_01-31-07 5/17/2007 9:35:24 AM searching for balance","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76377151","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 proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury's legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This Note argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury's democratic character.
{"title":"Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury","authors":"Richard M. Re","doi":"10.2307/20455768","DOIUrl":"https://doi.org/10.2307/20455768","url":null,"abstract":"This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury's legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This Note argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury's democratic character.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79486868","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}
War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. As Congress has filled nearly every shadowy corner of Justice Jackson's "zone of twilight" with its own imprimatur, war powers debates now hinge on traditional statutory interpretation, albeit in a unique context. This Note establishes context-specific canons for interpreting war powers legislation and effectuating its underlying values, aiming to provide principled resolution to seemingly intractable conflicts. In so doing, it draws upon the complete set of judicial opinions assessing authorizations of the use of military force and analyzes the institutional framework beneath them.
{"title":"The Canons of War","authors":"D. J. Freeman","doi":"10.2307/20455792","DOIUrl":"https://doi.org/10.2307/20455792","url":null,"abstract":"War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. As Congress has filled nearly every shadowy corner of Justice Jackson's \"zone of twilight\" with its own imprimatur, war powers debates now hinge on traditional statutory interpretation, albeit in a unique context. This Note establishes context-specific canons for interpreting war powers legislation and effectuating its underlying values, aiming to provide principled resolution to seemingly intractable conflicts. In so doing, it draws upon the complete set of judicial opinions assessing authorizations of the use of military force and analyzes the institutional framework beneath them.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78536017","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 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the "administrative law" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian Embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding "public domain." The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This "internal law of administration" remains both a crucial and an understudied aspect of American administrative governance.
{"title":"Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829","authors":"J. Mashaw","doi":"10.2307/20455775","DOIUrl":"https://doi.org/10.2307/20455775","url":null,"abstract":"In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the \"administrative law\" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian Embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding \"public domain.\" The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This \"internal law of administration\" remains both a crucial and an understudied aspect of American administrative governance.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88727733","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}
After io8 years as a colony1 of the United States, Puerto Rico continues to search for a dignified solution to its status of political subordination. Although Puerto Ricans have been U.S. citizens since 1917,2 they cannot vote in federal elections and have no say in the enactment, application, or administration of the federal laws and regulations that shape their lives. They are also denied the right to govern themselves without federal intrusion. A century of bitter internal debate, conspicuous federal neglect, and countless frustrated efforts at reform has failed to produce consensus on how to address this manifest lack of democracy. However, while the island's internal divisions reflect profound disagreements about politics, economics, and culture, Puerto Ricans from all political persuasions agree on the need to solve, at a minimum, the grossest democratic inequities of Puerto Rico's relationship with the United States. Unfortunately, the search for grand, permanent solutions to Puerto Rico's status may have dampened the search for pragmatic short-term alternatives. While the debate over the political future of the island has sputtered in Puerto Rico and Washington, Congress is currently considering a bold proposal to address the undemocratic status of another disenfranchised territory. The District of Columbia House Voting Rights Act of 2007 (H.R. 1433) attempts to end the congressional disenfranchisement of District of Columbia residents by treating the District as a state for purposes of
{"title":"Six Puerto Rican Congressmen Go to Washington","authors":"Jose R. Coleman Tio","doi":"10.2307/20455761","DOIUrl":"https://doi.org/10.2307/20455761","url":null,"abstract":"After io8 years as a colony1 of the United States, Puerto Rico continues to search for a dignified solution to its status of political subordination. Although Puerto Ricans have been U.S. citizens since 1917,2 they cannot vote in federal elections and have no say in the enactment, application, or administration of the federal laws and regulations that shape their lives. They are also denied the right to govern themselves without federal intrusion. A century of bitter internal debate, conspicuous federal neglect, and countless frustrated efforts at reform has failed to produce consensus on how to address this manifest lack of democracy. However, while the island's internal divisions reflect profound disagreements about politics, economics, and culture, Puerto Ricans from all political persuasions agree on the need to solve, at a minimum, the grossest democratic inequities of Puerto Rico's relationship with the United States. Unfortunately, the search for grand, permanent solutions to Puerto Rico's status may have dampened the search for pragmatic short-term alternatives. While the debate over the political future of the island has sputtered in Puerto Rico and Washington, Congress is currently considering a bold proposal to address the undemocratic status of another disenfranchised territory. The District of Columbia House Voting Rights Act of 2007 (H.R. 1433) attempts to end the congressional disenfranchisement of District of Columbia residents by treating the District as a state for purposes of","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76231883","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 provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 19o8 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the contemporary evolution of public land use regulation, most notably zoning. These analyses reveal that restrictive covenants in this era are best understood as a form of signaling and social norms rather than as a form of private law. AUTHOR. Yale Law School, J.D. expected 2007; Columbia University, M.A. 2004; Harvard College, B.A. 1999. The author would like to thank Richard Brooks, Robert Ellickson, David Lenzi, and Henry Smith for their invaluable assistance with this Note.
{"title":"Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills","authors":"Valerie Jaffee","doi":"10.2307/20455759","DOIUrl":"https://doi.org/10.2307/20455759","url":null,"abstract":"This Note provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 19o8 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the contemporary evolution of public land use regulation, most notably zoning. These analyses reveal that restrictive covenants in this era are best understood as a form of signaling and social norms rather than as a form of private law. AUTHOR. Yale Law School, J.D. expected 2007; Columbia University, M.A. 2004; Harvard College, B.A. 1999. The author would like to thank Richard Brooks, Robert Ellickson, David Lenzi, and Henry Smith for their invaluable assistance with this Note.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89124867","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 deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nation's interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.
{"title":"Disregarding Foreign Relations Law","authors":"Derek P. Jinks, N. Katyal","doi":"10.2307/20455757","DOIUrl":"https://doi.org/10.2307/20455757","url":null,"abstract":"What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nation's interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72679562","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 U T H O R. Yale Law School, J.D. expected 2007; Oxford University, B.A. (Hons.) 2004; University of North Carolina at Chapel Hill, B.S. 2002. I am grateful to my family and my partner, Justin Fansler, for their years of love, support, and encouragement; to Jay Pottenger and Frank Dineen at the Landlord-Tenant Clinic of the Jerome N. Frank Legal Services Organization for their inspiration, patient supervision, and guidance; to Fadi Hanna for extensive comments on drafts; and to Annie Decker for her indispensable insights and exceptional editing skills.
A U T H O R.耶鲁大学法学院，J.D.， expected 2007;牛津大学(荣誉)文学士2004;北卡罗来纳大学教堂山分校，2002年获理学士学位。我要感谢我的家人和我的伴侣贾斯汀·范斯勒，感谢他们多年来的爱、支持和鼓励;杰罗姆·n·弗兰克法律服务组织房东-租客诊所的杰伊·波登格和弗兰克·迪宁，感谢他们的启发、对病人的监督和指导;感谢Fadi Hanna对草案的广泛评论;以及安妮·德克尔不可或缺的洞察力和卓越的编辑技巧。
{"title":"Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records","authors":"Rudy Kleysteuber","doi":"10.2307/20455760","DOIUrl":"https://doi.org/10.2307/20455760","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2007; Oxford University, B.A. (Hons.) 2004; University of North Carolina at Chapel Hill, B.S. 2002. I am grateful to my family and my partner, Justin Fansler, for their years of love, support, and encouragement; to Jay Pottenger and Frank Dineen at the Landlord-Tenant Clinic of the Jerome N. Frank Legal Services Organization for their inspiration, patient supervision, and guidance; to Fadi Hanna for extensive comments on drafts; and to Annie Decker for her indispensable insights and exceptional editing skills.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87422467","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}
Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. author. Yale Law School, J.D. expected 2007; Harvard College, A.B. 2003. Thanks to my many friends and my many editors on The Yale Law Journal—a group of perfect overlap—who contributed so much to whatever merit this piece may possess. And thanks especially to my family and my soon-to-be-wife Jamie, who daily give me the courage and conviction to risk failure in writing from the heart. CITRON FORMATTED FOR SC2_1-29-06 3/14/2007 4:33:46 PM right and responsibility in fourth amendment jurisprudence
自Whren v. United States案以来，第四修正案分析未能认识到警察借口行为的严重不当性——尤其是搜查和扣押。这并不是因为借口测试不切实际或在哲学上不合理。相反，问题在于我们目前对第四修正案的分析重点，它过分强调个人的“隐私权”，而对负责任的警察行为强调不够。国家的调查权由警察为人民保管。如果我们把注意力重新集中在必须以负责任的方式部署警察权力的想法上，我们就可以清楚地看到借口的问题所在。作者。耶鲁大学法学院，法学博士，预计2007年;哈佛大学，学士，2003年。感谢我的许多朋友和我在《耶鲁法律期刊》上的许多编辑——一群完美的重叠——他们为这篇文章做出了如此多的贡献。尤其要感谢我的家人和我即将成为妻子的杰米，是你们每天给我勇气和信念，让我敢于冒着写作失败的风险，发自内心地写作。第四修正案法理学中的权利与责任
{"title":"Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext","authors":"Eric F Citron","doi":"10.2307/20455750","DOIUrl":"https://doi.org/10.2307/20455750","url":null,"abstract":"Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. author. Yale Law School, J.D. expected 2007; Harvard College, A.B. 2003. Thanks to my many friends and my many editors on The Yale Law Journal—a group of perfect overlap—who contributed so much to whatever merit this piece may possess. And thanks especially to my family and my soon-to-be-wife Jamie, who daily give me the courage and conviction to risk failure in writing from the heart. CITRON FORMATTED FOR SC2_1-29-06 3/14/2007 4:33:46 PM right and responsibility in fourth amendment jurisprudence","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81159032","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}
Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster. author. Yale Law School, J.D. expected 2007; University of Cambridge, M.Phil. 2003; Harvard University, A.B. 2002. I am deeply indebted to Professors Owen Fiss and Heather Gerken who both inspired and challenged me to develop this Note, and to Professors Dennis Curtis and Robert Solomon who directed me in the Hurricane Katrina Clinic. Many thanks to Marie Boyd, Jessica Bulman-Pozen, Kristen Clarke-Avery, Natalie Hershlag, Sia Sanneh, Robert Scott, and Katherine Wiltenburg Todrys for their incisive comments and edits. Finally, I dedicate this Note to the memory of my sister, Tiffani Simone Williams, who I miss every day. WILLIAMS_11-12-06_FORMATTEDFORSC1 3/14/2007 4:37:11 PM reconstructing section 5
《投票权法案》(VRA)第5条——美国民权武器库中最有力的武器——在卡特里娜飓风过后悄然遭遇了意想不到的失败。用于管理第5条的“静态基准测试”未能履行《投票法》的核心任务:维护少数民族的政治权力。这篇笔记提供了这一失败的第一个关键描述，并认为它超越了卡特里娜飓风的具体情况。《笔记》随后提出了一项狭义的教义“修正”，以便在灾难发生后恢复第5条的执行权。作者。耶鲁大学法学院，法学博士，预计2007年;剑桥大学，哲学硕士。2003;哈佛大学，2002年文学学士。我非常感谢欧文·菲斯教授和希瑟·格肯教授，他们激励我并鼓励我写这篇笔记，也非常感谢丹尼斯·柯蒂斯教授和罗伯特·所罗门教授，他们在卡特里娜飓风诊所指导我。非常感谢Marie Boyd, Jessica Bulman-Pozen, Kristen Clarke-Avery, Natalie Hershlag, Sia Sanneh, Robert Scott和Katherine Wiltenburg Todrys的深刻评论和编辑。最后，我谨以此信纪念我的妹妹蒂芙尼·西蒙娜·威廉姆斯，我每天都想念她。3月14日下午4:37:11重建第5部分
{"title":"Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform","authors":"Damian T. Williams","doi":"10.2307/20455751","DOIUrl":"https://doi.org/10.2307/20455751","url":null,"abstract":"Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster. author. Yale Law School, J.D. expected 2007; University of Cambridge, M.Phil. 2003; Harvard University, A.B. 2002. I am deeply indebted to Professors Owen Fiss and Heather Gerken who both inspired and challenged me to develop this Note, and to Professors Dennis Curtis and Robert Solomon who directed me in the Hurricane Katrina Clinic. Many thanks to Marie Boyd, Jessica Bulman-Pozen, Kristen Clarke-Avery, Natalie Hershlag, Sia Sanneh, Robert Scott, and Katherine Wiltenburg Todrys for their incisive comments and edits. Finally, I dedicate this Note to the memory of my sister, Tiffani Simone Williams, who I miss every day. WILLIAMS_11-12-06_FORMATTEDFORSC1 3/14/2007 4:37:11 PM reconstructing section 5","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81445868","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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