Pub Date : 2023-07-18eCollection Date: 2023-01-01DOI: 10.1080/13572334.2023.2214390
Cristina Leston-Bandeira, Sven T Siefken
Public engagement has become a noticeable activity for parliaments across the world. However, we lack understanding of its role despite considerable developments in scholarly work on public engagement in the sciences and on deliberative and participatory democracy by social scientists. This article provides a framework to understand the significance of parliamentary public engagement and to evaluate its effectiveness. It explains how parliamentary public engagement has emerged because of a representational shift in who is doing the representing in parliament and in what is represented, following key societal changes. We define parliamentary public engagement, showing the importance of differentiating between the activity, its effects and broader democratic ideals. We identify information and education as the types of engagement activity most developed by parliaments, with much still to do in consultation and participation activities. The article finishes with a discussion of seven key challenges in developing and implementing effective institutional parliamentary public engagement practices.
{"title":"The development of public engagement as a core institutional role for parliaments.","authors":"Cristina Leston-Bandeira, Sven T Siefken","doi":"10.1080/13572334.2023.2214390","DOIUrl":"10.1080/13572334.2023.2214390","url":null,"abstract":"<p><p>Public engagement has become a noticeable activity for parliaments across the world. However, we lack understanding of its role despite considerable developments in scholarly work on public engagement in the sciences and on deliberative and participatory democracy by social scientists. This article provides a framework to understand the significance of parliamentary public engagement and to evaluate its effectiveness. It explains how parliamentary public engagement has emerged because of a representational shift in <i>who</i> is doing the representing in parliament and in <i>what</i> is represented, following key societal changes. We define parliamentary public engagement, showing the importance of differentiating between the activity, its effects and broader democratic ideals. We identify information and education as the types of engagement activity most developed by parliaments, with much still to do in consultation and participation activities. The article finishes with a discussion of seven key challenges in developing and implementing effective institutional parliamentary public engagement practices.</p>","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"87 1 1","pages":"361-379"},"PeriodicalIF":1.0,"publicationDate":"2023-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10519624/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90301893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-03eCollection Date: 2023-01-01DOI: 10.3897/zookeys.1168.96091
Trung My Phung, Cuong The Pham, Truong Quang Nguyen, Hoa Thi Ninh, Huy Quoc Nguyen, Marta Bernardes, Son Thanh Le, Thomas Ziegler, Tao Thien Nguyen
A new species of the genus Tylototriton is described from Ngoc Linh Mountain, Kon Tum Province, in the Central Highlands of Vietnam based on integrative taxonomy, namely by combining molecular and morphological evidence. Tylototritonngoclinhensissp. nov. differs from all other congeners based on morphological data, allopatric distribution, and molecular divergence. In terms of genetic divergence, Tylototritonngoclinhensissp. nov. distinctly differs from the sister species T.panhai (6.77%) and from T.ngarsuensis (12.36%) based on the mitochondrial NADH dehydrogenase subunit 2 (ND2) gene. Tylototritonngoclinhensissp. nov. is a moderate sized and robust salamander species with large cephalic edges, parotoids, and vertebral ridge orange in coloration. The new taxon differs from its congeners by a combination of the following morphological characteristics: size medium (SVL 60.8-66.5 mm, TL 57.6-61.8 mm in males, and SVL 72.5-75.6 mm, TL 62.9-67.9 mm in females); head longer than wide; parotoids very prominent and enlarged, projecting backwards; tail length shorter than snout-vent length; vertebral ridge large, high and glandular in appearance; 14 large and distinct dorsolateral glandular warts; gular fold present; tips of fore and hind limbs overlapping when adpressed along the body; tips of fingers reaching between eye and nostril when foreleg is laid forward; dorsal surface and lateral sides of the head, upper and lower lips, dorsolateral glandular warts, vertebral ridge, the peripheral area of the cloaca and the ventral edge of the tail orange in coloration; the presence of a distinct black line extending from the posterior end of the eye towards the shoulder. Tylototritonngoclinhensissp. nov. is restricted to evergreen montane forests near water bodies on Ngoc Linh Mountain. We suggest that the new species should be classified as Endangered (EN) in the IUCN Red List. This new important discovery represents the eighth Tylototriton taxon described from Vietnam, and at the same time constitutes the southernmost distributional record for the whole genus in Asia.
{"title":"Southbound - the southernmost record of <i>Tylototriton</i> (Amphibia, Caudata, Salamandridae) from the Central Highlands of Vietnam represents a new species.","authors":"Trung My Phung, Cuong The Pham, Truong Quang Nguyen, Hoa Thi Ninh, Huy Quoc Nguyen, Marta Bernardes, Son Thanh Le, Thomas Ziegler, Tao Thien Nguyen","doi":"10.3897/zookeys.1168.96091","DOIUrl":"10.3897/zookeys.1168.96091","url":null,"abstract":"<p><p>A new species of the genus <i>Tylototriton</i> is described from Ngoc Linh Mountain, Kon Tum Province, in the Central Highlands of Vietnam based on integrative taxonomy, namely by combining molecular and morphological evidence. <i>Tylototritonngoclinhensis</i><b>sp. nov.</b> differs from all other congeners based on morphological data, allopatric distribution, and molecular divergence. In terms of genetic divergence, <i>Tylototritonngoclinhensis</i><b>sp. nov.</b> distinctly differs from the sister species <i>T.panhai</i> (6.77%) and from <i>T.ngarsuensis</i> (12.36%) based on the mitochondrial NADH dehydrogenase subunit 2 (ND2) gene. <i>Tylototritonngoclinhensis</i><b>sp. nov.</b> is a moderate sized and robust salamander species with large cephalic edges, parotoids, and vertebral ridge orange in coloration. The new taxon differs from its congeners by a combination of the following morphological characteristics: size medium (SVL 60.8-66.5 mm, TL 57.6-61.8 mm in males, and SVL 72.5-75.6 mm, TL 62.9-67.9 mm in females); head longer than wide; parotoids very prominent and enlarged, projecting backwards; tail length shorter than snout-vent length; vertebral ridge large, high and glandular in appearance; 14 large and distinct dorsolateral glandular warts; gular fold present; tips of fore and hind limbs overlapping when adpressed along the body; tips of fingers reaching between eye and nostril when foreleg is laid forward; dorsal surface and lateral sides of the head, upper and lower lips, dorsolateral glandular warts, vertebral ridge, the peripheral area of the cloaca and the ventral edge of the tail orange in coloration; the presence of a distinct black line extending from the posterior end of the eye towards the shoulder. <i>Tylototritonngoclinhensis</i><b>sp. nov.</b> is restricted to evergreen montane forests near water bodies on Ngoc Linh Mountain. We suggest that the new species should be classified as Endangered (EN) in the IUCN Red List. This new important discovery represents the eighth <i>Tylototriton</i> taxon described from Vietnam, and at the same time constitutes the southernmost distributional record for the whole genus in Asia.</p>","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"44 1","pages":"193-218"},"PeriodicalIF":3.5,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10848839/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90277467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1136/ebnurs-2021-103496
Shaminder Singh, Stephanie Zettel
{"title":"Nurse-led dialogue-driven digital platform-based personalised education programmes may improve diabetes management of patients on basal insulin therapy.","authors":"Shaminder Singh, Stephanie Zettel","doi":"10.1136/ebnurs-2021-103496","DOIUrl":"10.1136/ebnurs-2021-103496","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"78 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90297894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why. This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what it is trying to do with that power? With this framework in view, the structure and scope of non-Article-III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power, and can proceed only as an adjunct to another entity, or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.
{"title":"Adjudication Outside Article III","authors":"William Baude","doi":"10.2139/SSRN.3194945","DOIUrl":"https://doi.org/10.2139/SSRN.3194945","url":null,"abstract":"Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why. \u0000 \u0000This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what it is trying to do with that power? \u0000 \u0000With this framework in view, the structure and scope of non-Article-III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power, and can proceed only as an adjunct to another entity, or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"133 1","pages":"1511-1581"},"PeriodicalIF":3.4,"publicationDate":"2020-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46649458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Dormant Commerce Clause--Extraterritoriality Doctrine--Fourth Circuit Invalidates Maryland Statute Regulating Price Gouging in the Sale Of Generic Drugs.--Association for Accessible Medicines v. Frosh, 887 F.3d 664 (4th Cir. 2018).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"132 6","pages":"1748-55"},"PeriodicalIF":3.4,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37163701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jaya Prabhakaran, Christine DeLorenzo, Francesca Zanderigo, Gitte M Knudsen, Nic Gilling, Mali Pratap, Matthew J Jorgensen, James Daunais, Jay R Kaplan, Ramin V Parsey, J John Mann, Dileep Kumar
Purpose: 5-HT2AR exists in high and low affinity states. Agonist PET tracers measure binding to the active high affinity site and thus provide a functionally relevant measure of the receptor. Limited in vivo data have been reported so far for a comparison of agonist versus antagonist tracers for 5-HT2AR used as a proof of principle for measurement of high and low affinity states of this receptor. We compared the in vivo binding of [11C]CIMBI-5, a 5-HT2AR agonist, and of the antagonist [11C]M100907, in monkeys and baboons.
Methods: [11C]CIMBI-5 and [11C]M100907 baseline PET scans were performed in anesthetized male baboons (n=2) and male vervet monkeys (n=2) with an ECAT EXACT HR+ and GE 64-slice PET/CT Discovery VCT scanners. Blocking studies were performed in vervet monkeys by pretreatment with MDL100907 (0.5 mg/kg, i.v.) 60 minutes prior to the scan. Regional distribution volumes and binding potentials were calculated for each ROI using the likelihood estimation in graphical analysis and Logan plot, with either plasma input function or reference region as input, and simplified reference tissue model approaches.
Results: PET imaging of [11C]CIMBI-5 in baboons and monkeys showed the highest binding in 5-HT2AR-rich cortical regions, while the lowest binding was observed in cerebellum, consistent with the expected distribution of 5-HT2AR. Very low free fractions and rapid metabolism were observed for [11C]CIMBI-5 in baboon plasma. Binding potential values for [11C]CIMBI-5 were 25-33% lower than those for [11C]MDL100907 in the considered brain regions.
Conclusion: The lower binding potential of [11C]CIMBI-5 in comparison to [11C]MDL100907 is likely due to the preferential binding of the former to the high affinity site in vivo in contrast to the antagonist, [11C]MDL100907, which binds to both high and low affinity sites.
目的：5-HT2AR 存在高亲和力和低亲和力两种状态。激动剂 PET 示踪剂可测量与活跃的高亲和力位点的结合，从而提供与受体功能相关的测量。迄今为止，关于 5-HT2AR 激动剂与拮抗剂示踪剂的体内比较数据有限，这些数据被用作测量该受体高亲和力和低亲和力状态的原理验证。我们比较了 5-HT2AR 激动剂[11C]CIMBI-5 和拮抗剂[11C]M100907 在猴子和狒狒体内的结合情况。方法：使用 ECAT EXACT HR+ 和 GE 64 片 PET/CT Discovery VCT 扫描仪对麻醉的雄性狒狒（n=2）和雄性绒猴（n=2）进行[11C]CIMBI-5 和 [11C]M100907 基线 PET 扫描。在扫描前 60 分钟用 MDL100907（0.5 毫克/千克，静脉注射）对疣猴进行阻断研究。利用图形分析中的似然估计和 Logan 图，以血浆输入函数或参考区域作为输入，并采用简化的参考组织模型方法计算每个 ROI 的区域分布容积和结合电位：狒狒和猴子的[11C]CIMBI-5 PET 成像显示，在 5-HT2AR 丰富的皮质区域结合率最高，而在小脑观察到的结合率最低，这与 5-HT2AR 的预期分布一致。在狒狒血浆中，[11C]CIMBI-5 的游离部分非常低，而且代谢速度很快。在所考虑的脑区中，[11C]CIMBI-5 的结合潜能值比[11C]MDL100907 低 25-33%：结论：与[11C]MDL100907相比，[11C]CIMBI-5的结合电位较低，这可能是由于前者在体内更倾向于与高亲和力位点结合，而拮抗剂[11C]MDL100907则同时与高亲和力和低亲和力位点结合。
{"title":"In vivo PET Imaging of [11C]CIMBI-5, a 5-HT2AR Agonist Radiotracer in Nonhuman Primates.","authors":"Jaya Prabhakaran, Christine DeLorenzo, Francesca Zanderigo, Gitte M Knudsen, Nic Gilling, Mali Pratap, Matthew J Jorgensen, James Daunais, Jay R Kaplan, Ramin V Parsey, J John Mann, Dileep Kumar","doi":"10.18433/jpps30329","DOIUrl":"10.18433/jpps30329","url":null,"abstract":"<p><strong>Purpose: </strong>5-HT2AR exists in high and low affinity states. Agonist PET tracers measure binding to the active high affinity site and thus provide a functionally relevant measure of the receptor. Limited in vivo data have been reported so far for a comparison of agonist versus antagonist tracers for 5-HT2AR used as a proof of principle for measurement of high and low affinity states of this receptor. We compared the in vivo binding of [11C]CIMBI-5, a 5-HT2AR agonist, and of the antagonist [11C]M100907, in monkeys and baboons.</p><p><strong>Methods: </strong>[11C]CIMBI-5 and [11C]M100907 baseline PET scans were performed in anesthetized male baboons (n=2) and male vervet monkeys (n=2) with an ECAT EXACT HR+ and GE 64-slice PET/CT Discovery VCT scanners. Blocking studies were performed in vervet monkeys by pretreatment with MDL100907 (0.5 mg/kg, i.v.) 60 minutes prior to the scan. Regional distribution volumes and binding potentials were calculated for each ROI using the likelihood estimation in graphical analysis and Logan plot, with either plasma input function or reference region as input, and simplified reference tissue model approaches.</p><p><strong>Results: </strong>PET imaging of [11C]CIMBI-5 in baboons and monkeys showed the highest binding in 5-HT2AR-rich cortical regions, while the lowest binding was observed in cerebellum, consistent with the expected distribution of 5-HT2AR. Very low free fractions and rapid metabolism were observed for [11C]CIMBI-5 in baboon plasma. Binding potential values for [11C]CIMBI-5 were 25-33% lower than those for [11C]MDL100907 in the considered brain regions.</p><p><strong>Conclusion: </strong>The lower binding potential of [11C]CIMBI-5 in comparison to [11C]MDL100907 is likely due to the preferential binding of the former to the high affinity site in vivo in contrast to the antagonist, [11C]MDL100907, which binds to both high and low affinity sites.</p>","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"67 1","pages":"352-364"},"PeriodicalIF":2.7,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7453972/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90291260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons. This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of more ministerial officers, too. We contend that it imposed three core requirements on officeholders: (1) diligent, careful, good faith, and impartial execution of law or office; (2) a duty not to misuse an office’s funds and or take unauthorized profits; and (3) a duty not to act ultra vires, beyond the scope of one’s office. These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President's faithful execution.
{"title":"Faithful Execution and Article II","authors":"A. Kent, E. Leib, J. Shugerman","doi":"10.2139/SSRN.3260593","DOIUrl":"https://doi.org/10.2139/SSRN.3260593","url":null,"abstract":"Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons. \u0000 \u0000This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of more ministerial officers, too. We contend that it imposed three core requirements on officeholders: \u0000 \u0000(1) diligent, careful, good faith, and impartial execution of law or office; \u0000 \u0000(2) a duty not to misuse an office’s funds and or take unauthorized profits; and \u0000 \u0000(3) a duty not to act ultra vires, beyond the scope of one’s office. \u0000 \u0000These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President's faithful execution.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"132 1","pages":"2111-2192"},"PeriodicalIF":3.4,"publicationDate":"2018-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43260536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-03-28DOI: 10.4135/9781483302799.n170
Ryan C. Williams
Article IV’s command that the “United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time. The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision’s oblique reference to “a Republican Form of Government.” But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision’s meaning and significance — namely, what it means for the United States to “guarantee” such republican government to the states. This Article seeks to shed new light on the original meaning of the term “guarantee” in the Guarantee Clause, by looking to an unexpected source — namely, eighteenth century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term “guarantee.” As used in eighteenth-century treaties, the term “guarantee” signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee. Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated support, to the Supreme Court’s longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance.
{"title":"The \"Guarantee\" Clause","authors":"Ryan C. Williams","doi":"10.4135/9781483302799.n170","DOIUrl":"https://doi.org/10.4135/9781483302799.n170","url":null,"abstract":"Article IV’s command that the “United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time. The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision’s oblique reference to “a Republican Form of Government.” But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision’s meaning and significance — namely, what it means for the United States to “guarantee” such republican government to the states. \u0000This Article seeks to shed new light on the original meaning of the term “guarantee” in the Guarantee Clause, by looking to an unexpected source — namely, eighteenth century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term “guarantee.” As used in eighteenth-century treaties, the term “guarantee” signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee. \u0000Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated support, to the Supreme Court’s longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"132 1","pages":"602-688"},"PeriodicalIF":3.4,"publicationDate":"2018-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41527964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge’s work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court’s interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.
{"title":"Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals","authors":"Abbe R. Gluck, R. Posner","doi":"10.2139/SSRN.3138249","DOIUrl":"https://doi.org/10.2139/SSRN.3138249","url":null,"abstract":"This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge’s work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court’s interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"1300-1373"},"PeriodicalIF":3.4,"publicationDate":"2018-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43678161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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