Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.
{"title":"Transitional Justice as Ordinary Justice","authors":"E. Posner, Adrian Vermeule","doi":"10.2307/4093461","DOIUrl":"https://doi.org/10.2307/4093461","url":null,"abstract":"Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093461","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732490","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":"Not Your Daddy's Fundamentalism: Intelligent Design in the Classroom","authors":"F. Beckwith","doi":"10.2307/4093466","DOIUrl":"https://doi.org/10.2307/4093466","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093466","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732804","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}
I. CONTEXT AND CHRONOLOGY ...... 835 A. The Political Culture and Legal Landscape of Early-Nineteenth-Century Kentucky... 836 I. "Steady to the principles of pure republicanism" 836 2. "The laws of Virginia for the appropriation of lands were the greatest curse that ever befell Kentucky" 839 B. The Crisis Unfolds 844 . The Triggering D ecision 845 2. Removal and Reorganization 849 3. Response and Retrenchment 852 II. POWER, LEGITIMACY, AND CONSTITUTIONALISM .... 855 A. Competing Structural Theories of Sovereignty 857 i. Questions of Representation ........ 857 2. "[I]n ... a multiplicity of checks the freedom of the whole will be safe" 862 3. "Aristocrats" and "Farmers" 865 B. The Locus and Methodology of Constitutional Interpretation 869 i. The New Court's Populist View of Constitutionalism . 870 (a) Judicial Illegitimacy and Incompetency in Constitutional Interpretation 870 (b) "That little book": Implications of Writtenness for Popular Constitutional Theory 871 2. The Old-Court Party's Moderate Judicial Constitutionalism 874 III. RAMIFICATIONS ACROSS GEOGRAPHY, TIME, AND THEORY 877 A. Insights Regarding Marbury's Influence and the Opinions of National Leaders ......... 879 I. "Marberry and Madison ... [an] unhappy citation[]" . 879 2. The Views of National Leaders 881 B. Influences on Judicial Behavior and Andrew Jackson's Constitutionalism 884 I. Judicial Behavior 884 2. Jackson's Constitutionalism 886 C. Broader Historical and Theoretical Lessons 888 i. Recent Scholarship Assessing Conceptions of Judicial Review in the Early Republic 888 2. A n U ncertain C onsensus 892 3. The Public's Constitutional Moment 894 4. Taming the Judges 896
{"title":"\"A Question Which Convulses a Nation\": The Early Republic's Greatest Debate About the Judicial Review Power","authors":"Theodore W. Ruger","doi":"10.2307/4093462","DOIUrl":"https://doi.org/10.2307/4093462","url":null,"abstract":"I. CONTEXT AND CHRONOLOGY ...... 835 A. The Political Culture and Legal Landscape of Early-Nineteenth-Century Kentucky... 836 I. \"Steady to the principles of pure republicanism\" 836 2. \"The laws of Virginia for the appropriation of lands were the greatest curse that ever befell Kentucky\" 839 B. The Crisis Unfolds 844 . The Triggering D ecision 845 2. Removal and Reorganization 849 3. Response and Retrenchment 852 II. POWER, LEGITIMACY, AND CONSTITUTIONALISM .... 855 A. Competing Structural Theories of Sovereignty 857 i. Questions of Representation ........ 857 2. \"[I]n ... a multiplicity of checks the freedom of the whole will be safe\" 862 3. \"Aristocrats\" and \"Farmers\" 865 B. The Locus and Methodology of Constitutional Interpretation 869 i. The New Court's Populist View of Constitutionalism . 870 (a) Judicial Illegitimacy and Incompetency in Constitutional Interpretation 870 (b) \"That little book\": Implications of Writtenness for Popular Constitutional Theory 871 2. The Old-Court Party's Moderate Judicial Constitutionalism 874 III. RAMIFICATIONS ACROSS GEOGRAPHY, TIME, AND THEORY 877 A. Insights Regarding Marbury's Influence and the Opinions of National Leaders ......... 879 I. \"Marberry and Madison ... [an] unhappy citation[]\" . 879 2. The Views of National Leaders 881 B. Influences on Judicial Behavior and Andrew Jackson's Constitutionalism 884 I. Judicial Behavior 884 2. Jackson's Constitutionalism 886 C. Broader Historical and Theoretical Lessons 888 i. Recent Scholarship Assessing Conceptions of Judicial Review in the Early Republic 888 2. A n U ncertain C onsensus 892 3. The Public's Constitutional Moment 894 4. Taming the Judges 896","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093462","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732640","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}
Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal protection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions about disparate impact laws. Those questions can be satisfactorily answered: the disparate impact standards of statutes such as Title VII are not now unconstitutional. But by exploring the tensions between those standards and the now-prevailing view of equal protection, the Article illuminates many indeterminacies in both of those legal concepts. It also argues against interpreting disparate impact standards in ways that most easily align with the values of individualist equal protection. Such interpretations offer easier defenses against constitutional attack, but they also threaten to cleanse antidiscrimination law of its rematning concern with inherited racial hierarchy.
{"title":"Equal Protection and Disparate Impact: Round Three","authors":"Richard A. Primus","doi":"10.2307/3651947","DOIUrl":"https://doi.org/10.2307/3651947","url":null,"abstract":"Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal protection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions about disparate impact laws. Those questions can be satisfactorily answered: the disparate impact standards of statutes such as Title VII are not now unconstitutional. But by exploring the tensions between those standards and the now-prevailing view of equal protection, the Article illuminates many indeterminacies in both of those legal concepts. It also argues against interpreting disparate impact standards in ways that most easily align with the values of individualist equal protection. Such interpretations offer easier defenses against constitutional attack, but they also threaten to cleanse antidiscrimination law of its rematning concern with inherited racial hierarchy.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3651947","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68847718","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":"Murder, He Wrote","authors":"Cynthia Lee","doi":"10.2307/3651951","DOIUrl":"https://doi.org/10.2307/3651951","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3651951","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68847417","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}
My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's "one person, one vote" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervent
{"title":"Freeing Bush v. Gore from Its Hall of Mirrors","authors":"L. Tribe","doi":"10.2139/SSRN.433960","DOIUrl":"https://doi.org/10.2139/SSRN.433960","url":null,"abstract":"My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's \"one person, one vote\" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervent","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68776823","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}
From the earliest days of the Republic, the Supreme Court has subscribed to the idea that judges may deviate from even the clearest statutory texts when a given application would produce otherwise absurd results. This approach has been an important safety valve in the Court’s case law even during its most textualist phases. The absurdity doctrine is predicated on the idea that Congress enacts legislation against the constraints of limited foresight, resources, and time, and that general language will sometimes produce unanticipated results. The doctrine then assumes that when a statute’s plain meaning produces a result that is contrary to society’s widely shared values, the result must have been unanticipated — something Congress would not have “intended” had it considered the question explicitly. Under that assumption, the Court has been able to avoid apparent statutory oddities without perceiving itself to have violated the constitutional premises of legislative supremacy. This article contends that the insights of modern textualism and public choice theory make that assumption harder to sustain. The legislative process is untidy, and the particular wording of a statute may have been, for unknowable reasons, essential to its passage. Thus, rather than identifying legislative intent, the Court’s invocation of “absurd results” to disturb a clear statutory text, in fact, risks displacing whatever bargain legislators actually reached through the complex and path-dependent legislative process. Moreover, treating the absurdity doctrine, in the alternative, as a normatively justified element of the federal judiciary's law-declaration power not only violates important assumptions underlying our constitutional structure, but also creates an unexplained incongruity between the constitutional assumptions applied in the Court's statutory cases and those applied in constitutional cases involving rationality review. After developing its critique of the absurdity doctrine, the article then considers alternative interpretive doctrines that have enabled the Court to avoid some but not all statutory absurdities.
{"title":"The Absurdity Doctrine","authors":"J. Manning","doi":"10.2307/1342768","DOIUrl":"https://doi.org/10.2307/1342768","url":null,"abstract":"From the earliest days of the Republic, the Supreme Court has subscribed to the idea that judges may deviate from even the clearest statutory texts when a given application would produce otherwise absurd results. This approach has been an important safety valve in the Court’s case law even during its most textualist phases. The absurdity doctrine is predicated on the idea that Congress enacts legislation against the constraints of limited foresight, resources, and time, and that general language will sometimes produce unanticipated results. The doctrine then assumes that when a statute’s plain meaning produces a result that is contrary to society’s widely shared values, the result must have been unanticipated — something Congress would not have “intended” had it considered the question explicitly. Under that assumption, the Court has been able to avoid apparent statutory oddities without perceiving itself to have violated the constitutional premises of legislative supremacy. This article contends that the insights of modern textualism and public choice theory make that assumption harder to sustain. The legislative process is untidy, and the particular wording of a statute may have been, for unknowable reasons, essential to its passage. Thus, rather than identifying legislative intent, the Court’s invocation of “absurd results” to disturb a clear statutory text, in fact, risks displacing whatever bargain legislators actually reached through the complex and path-dependent legislative process. Moreover, treating the absurdity doctrine, in the alternative, as a normatively justified element of the federal judiciary's law-declaration power not only violates important assumptions underlying our constitutional structure, but also creates an unexplained incongruity between the constitutional assumptions applied in the Court's statutory cases and those applied in constitutional cases involving rationality review. After developing its critique of the absurdity doctrine, the article then considers alternative interpretive doctrines that have enabled the Court to avoid some but not all statutory absurdities.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1342768","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68336628","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":"Mining in Hard Ground","authors":"C. Harris, Lani Guinier, G. Torres","doi":"10.2307/1342769","DOIUrl":"https://doi.org/10.2307/1342769","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1342769","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68336640","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":"Reclaiming Home Rule","authors":"David J. Barron","doi":"10.2307/1342767","DOIUrl":"https://doi.org/10.2307/1342767","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1342767","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68336585","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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