Medicine and Ethics. Problems encountered as science makes genetic control of man a real possibility. Includes discussions of asexual reproduction of men, frozen semen banks, breeding human beings for special purposes.
{"title":"The Cost of Accidents","authors":"G. Calabresi","doi":"10.12987/9780300157970","DOIUrl":"https://doi.org/10.12987/9780300157970","url":null,"abstract":"Medicine and Ethics. Problems encountered as science makes genetic control of man a real possibility. Includes discussions of asexual reproduction of men, frozen semen banks, breeding human beings for special purposes.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66375670","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":"Tort Law--Expert Testimony in Asbestos Litigation--District of South Carolina Holds the Every Exposure Theory Insufficient to Demonstrate Specific Causation Even If Legal Conclusions are Scientifically Sound.--Haskins v. 3m Co., Nos. 2:15-cv-02086, 3:15-cv-02123, 2017 WL 3118017 (D.S.C. July 21, 2017).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35656076","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":"Without the Pretense of Legislative Intent","authors":"J. Manning","doi":"10.2139/SSRN.3347325","DOIUrl":"https://doi.org/10.2139/SSRN.3347325","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44073129","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}
"Unprecedented" is a dirty word--at least in the context of constitutional politics. The claim that some behavior is unprecedented carries with it a distinct whiff of impermissibility: if it's never been done before, then at the very least the burden is on those who would want to do it to show that it is permissible. (1) A thumb is very firmly placed on the scale against constitutional novelty. The claim that some activity is constitutionally novel is therefore a politically potent one. Of course, to call one act a "precedent" for another is not to state a fact about the relationship between them but rather to engage in a creative act of interpretation. Precedential relationships are made, not found, (2) and therefore charges of unprecedentedness represent a political judgment--but one that comes in the guise of a discovery of a fact about the world. In recent years, perhaps nowhere has unprecedented behavior been "discovered" with more abandon than in the context of judicial appointments. Part I of this Essay describes recent events in this domain, beginning in the George W. Bush Administration and culminating with the 2017 elimination of the filibuster for all nominees. In particular, it focuses on the discourse surrounding these reforms, noting that at every turn, accusations of "unprecedented" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts--two precedential pathways--for recent * rofessor of Law, Cornell Law School. I am grateful to Will Baude, Mike Dorf, Joey Fishkin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Zaremby for helpful and thought-provoking comments on earlier drafts. The research and writing of this Essay were funded in part by a gift from the Charles Adelman Fund at Cornell Law School. I gratefully acknowledge the generosity of Charles Adelman and the support his gift provides to legal scholarship. Any remaining errors or infelicities are, of course, my own. events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some avail-able pasts to others. I. The Present By the middle of 2004, Republicans were furious. Three years into George W. Bush's presidency, they were having at best very limited success in stocking the federal courts, and especially the circuit courts, with their preferred personnel. Democrats had held the Senate majority for most of the 107th Congress (2001-2003), (3) and they had used their power to good effect, confirming only 52% of Bush's (4) nominees to the courts of appeals. (5) But Republi
“史无前例”是一个肮脏的词——至少在宪政的背景下是这样。声称某些行为是前所未有的，带有明显的不被允许的意味:如果以前从未有人做过，那么至少那些想要做这件事的人有责任证明它是被允许的。(1)在反对宪法新颖性的天平上，大拇指是非常牢固的。因此，声称某些活动在宪法上是新颖的，在政治上是强有力的。当然，将一个行为称为另一个行为的“先例”并不是陈述它们之间关系的事实，而是参与一种创造性的解释行为。先例关系是建立的，而不是发现的，因此，对史无前例的指责代表了一种政治判断——但它是以发现世界事实的名义出现的。近年来，在司法任命的背景下，可能没有什么地方比任何地方更能“发现”前所未有的行为了。本文的第一部分描述了这一领域最近发生的事件，从乔治·w·布什政府开始，到2017年取消对所有提名者的阻挠议事。报告特别关注围绕这些改革的讨论，指出在每一个转折点，对“前所未有”行为的指责都向四面八方飞来，并成为反制措施的理由，而反制措施又被描述为前所未有。第二部分为康奈尔大学法学院(Cornell Law School)最近的法学教授重建了两个过去——两个先例路径。我很感谢Will Baude, Mike Dorf, Joey Fishkin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach和Justin Zaremby对早期草稿的有益和发人深省的评论。本文的研究和写作部分由康奈尔大学法学院查尔斯·阿德尔曼基金的捐赠资助。我非常感谢查尔斯·阿德尔曼的慷慨和他的捐赠对法律学术的支持。当然，任何剩下的错误或缺点都是我自己的。事件，一个借鉴立法阻挠的历史，另一个借鉴确认政治的历史。这些历史叙述的目的并不是对史无前例的特定主张进行评判，而是强调任何(非)史无前例的主张都涉及对过去的特定的、有争议的建构。这篇文章总结了一些关于为什么我们可能更喜欢一些可用的过去而不是其他人的想法。到2004年中期，共和党人怒不可遏。在乔治·w·布什(George W. Bush)担任总统三年后，他们在为联邦法院，尤其是巡回法院配备他们喜欢的人员方面，最多只取得了非常有限的成功。民主党在第107届国会(2001-2003)的大部分时间里都占据着参议院的多数席位，他们很好地利用了自己的权力，布什提名的上诉法院大法官中只有52%得到了确认。但是，共和党人在2002年中期选举中重新夺回了参议院，并显然期望任命的步伐加快。成为司法委员会主席的奥林·哈奇宣布，他将减少对家乡参议员的传统尊重，甚至对两个家乡参议员都反对的提名人举行听证会和投票。(6)在那届国会中，有7名上诉法院提名人没有得到两个州参议员的批准，其中5人被选出了委员会。(7)司法委员会的资深民主党人帕特里克·莱希(Patrick Leahy)庄严地表示，这一举动将“在参议院和我们委员会的史册上永远被铭记，因为它开创了先例(不顾两个州参议员的反对，就一名被提名人举行听证会)，因为它背后的傲慢和它所设定的无耻的双重标准”(8)多数党领袖比尔·弗里斯特(Bill Frist)不为所动;当被提名者上台时，他拒绝尊重他们的等待要求。．..
{"title":"Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past","authors":"Josh Chafetz","doi":"10.31228/osf.io/7wnqe","DOIUrl":"https://doi.org/10.31228/osf.io/7wnqe","url":null,"abstract":"\"Unprecedented\" is a dirty word--at least in the context of constitutional politics. The claim that some behavior is unprecedented carries with it a distinct whiff of impermissibility: if it's never been done before, then at the very least the burden is on those who would want to do it to show that it is permissible. (1) A thumb is very firmly placed on the scale against constitutional novelty. The claim that some activity is constitutionally novel is therefore a politically potent one. Of course, to call one act a \"precedent\" for another is not to state a fact about the relationship between them but rather to engage in a creative act of interpretation. Precedential relationships are made, not found, (2) and therefore charges of unprecedentedness represent a political judgment--but one that comes in the guise of a discovery of a fact about the world. In recent years, perhaps nowhere has unprecedented behavior been \"discovered\" with more abandon than in the context of judicial appointments. Part I of this Essay describes recent events in this domain, beginning in the George W. Bush Administration and culminating with the 2017 elimination of the filibuster for all nominees. In particular, it focuses on the discourse surrounding these reforms, noting that at every turn, accusations of \"unprecedented\" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts--two precedential pathways--for recent * rofessor of Law, Cornell Law School. I am grateful to Will Baude, Mike Dorf, Joey Fishkin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Zaremby for helpful and thought-provoking comments on earlier drafts. The research and writing of this Essay were funded in part by a gift from the Charles Adelman Fund at Cornell Law School. I gratefully acknowledge the generosity of Charles Adelman and the support his gift provides to legal scholarship. Any remaining errors or infelicities are, of course, my own. events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some avail-able pasts to others. I. The Present By the middle of 2004, Republicans were furious. Three years into George W. Bush's presidency, they were having at best very limited success in stocking the federal courts, and especially the circuit courts, with their preferred personnel. Democrats had held the Senate majority for most of the 107th Congress (2001-2003), (3) and they had used their power to good effect, confirming only 52% of Bush's (4) nominees to the courts of appeals. (5) But Republi","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44349288","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}
In September 1994, Professor Ronald Dworkin presented a new paper at the NYU Colloquium in Legal, Political, and Social Philosophy. Earlier that year, the second edition of Professor H.L.A. Hart's The Concept of Law had appeared, which now included as a postscript an edited version of an unfinished manuscript that Hart had left at his death. (1) Hart's Postscript (as it came to be known) was Hart's response to Dworkin's work. In part, the Postscript addressed Dworkin's arguments from the late 1960s and early 1970s that had directly discussed Hart's claims in the book. (2) But it also addressed Dworkin's own theory of law, developed in the 1970s and early 1980s and, most fully and systematically, in Law's Empire, which appeared in 1986. (3) The paper that Dworkin presented at the Colloquium, entitled Hart's Posthumous Reply, (4) was a rebuttal of Hart's claims in the Postscript. This was an exciting development: Dworkin's manuscript circulated rapidly and widely, in spite of the fact that, back then, dissemination of manuscripts relied on photocopier and postal service, or even fax. I. DWORKIN AND HIS CRITICS To understand why this was exciting requires some background. The publication in 1967 of Dworkin's The Model of Rules had set off a fierce debate between Dworkin and a large number of critics. Dworkin's target in that paper was legal positivism, which he defined as a family of theories that purport to explain obligation in law by appeal to the existence of a set of special standards that meet a social test of pedigree: for example, that they have been endorsed by some institution. (5) Dworkin contended that such theories cannot adequately account for the role that certain unenacted moral principles play in grounding legal rights and obligations. (6) This failure, he argued, led the theories to conflate the use of moral judgment in judicial reasoning (a core judicial duty, given the role of principles) with judicial creation of new legal rights and duties to which litigants are retroactively held (which would be a gross violation of that duty). (7) In part, Dworkin framed the discussion as an attack on Hart's theory, which he considered the strongest version of positivism then available. (8) Dworkin's critics from that period sought to defend positivism. They, too, often focused on Hart, framing their arguments as a defence of Hart's (or a Hartian) theory, either by developing responses that they claimed to be available to Hart or by suggesting modifications to Hart's theory that they claimed to be capable of preserving the general positivist outlook that Hart championed and of making the modified theory immune to Dworkin's criticism. (9) Because of its framing, the relevant scholarship came to be known as the "Hart-Dworkin debate," though of course it was in fact a debate between Dworkin and his numerous critics, since Hart did not reply to Dworkin at that time. Following the early pair of articles that sparked the debate, Dworkin embarked on
{"title":"The Debate That Never Was","authors":"N. Stavropoulos","doi":"10.2139/SSRN.2972256","DOIUrl":"https://doi.org/10.2139/SSRN.2972256","url":null,"abstract":"In September 1994, Professor Ronald Dworkin presented a new paper at the NYU Colloquium in Legal, Political, and Social Philosophy. Earlier that year, the second edition of Professor H.L.A. Hart's The Concept of Law had appeared, which now included as a postscript an edited version of an unfinished manuscript that Hart had left at his death. (1) Hart's Postscript (as it came to be known) was Hart's response to Dworkin's work. In part, the Postscript addressed Dworkin's arguments from the late 1960s and early 1970s that had directly discussed Hart's claims in the book. (2) But it also addressed Dworkin's own theory of law, developed in the 1970s and early 1980s and, most fully and systematically, in Law's Empire, which appeared in 1986. (3) The paper that Dworkin presented at the Colloquium, entitled Hart's Posthumous Reply, (4) was a rebuttal of Hart's claims in the Postscript. This was an exciting development: Dworkin's manuscript circulated rapidly and widely, in spite of the fact that, back then, dissemination of manuscripts relied on photocopier and postal service, or even fax. I. DWORKIN AND HIS CRITICS To understand why this was exciting requires some background. The publication in 1967 of Dworkin's The Model of Rules had set off a fierce debate between Dworkin and a large number of critics. Dworkin's target in that paper was legal positivism, which he defined as a family of theories that purport to explain obligation in law by appeal to the existence of a set of special standards that meet a social test of pedigree: for example, that they have been endorsed by some institution. (5) Dworkin contended that such theories cannot adequately account for the role that certain unenacted moral principles play in grounding legal rights and obligations. (6) This failure, he argued, led the theories to conflate the use of moral judgment in judicial reasoning (a core judicial duty, given the role of principles) with judicial creation of new legal rights and duties to which litigants are retroactively held (which would be a gross violation of that duty). (7) In part, Dworkin framed the discussion as an attack on Hart's theory, which he considered the strongest version of positivism then available. (8) Dworkin's critics from that period sought to defend positivism. They, too, often focused on Hart, framing their arguments as a defence of Hart's (or a Hartian) theory, either by developing responses that they claimed to be available to Hart or by suggesting modifications to Hart's theory that they claimed to be capable of preserving the general positivist outlook that Hart championed and of making the modified theory immune to Dworkin's criticism. (9) Because of its framing, the relevant scholarship came to be known as the \"Hart-Dworkin debate,\" though of course it was in fact a debate between Dworkin and his numerous critics, since Hart did not reply to Dworkin at that time. Following the early pair of articles that sparked the debate, Dworkin embarked on","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2972256","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41633276","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":"Antitrust Law--Hospital Mergers--Third Circuit Clarifies Geographic Market Definition and Raises Bar for Efficiencies Defense.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34929234","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":"Preemption — ERISA Preemption — Sixth Circuit Holds That ERISA Does Not Preempt Michigan Medicaid Tax Law.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34884464","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}
What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.
{"title":"Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2863112","DOIUrl":"https://doi.org/10.2139/SSRN.2863112","url":null,"abstract":"What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68398935","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}
A string of deadly police-citizen encounters, made public on an unprecedented scale, has thrust American policing into the crucible of political conflict. New social movements have taken to the streets, while legislators have introduced a wide array of reform proposals. Optimism is elusive, though, as the police are notoriously difficult to change. One powerful policy lever, however, has been overlooked: police liability insurance. Based on primary sources new to legal literature and interviews with nearly thirty insurance industry representatives, civil rights litigators, municipal attorneys, and consultants, this Article shows how liability insurers are capable of effecting meaningful change within the agencies they insure — a majority of police agencies nationwide. The Article is the first to describe and assess the contemporary market for liability insurance in the policing context; in particular, the effects of insurance on police behavior. While not ignoring the familiar (and potentially serious) problem of moral hazard, the Article focuses on the ways in which insurers perform a traditionally governmental “regulatory” role as they work to manage risk. Insurers get police agencies to adopt or amend written departmental policies on subjects like the use of force and strip searches, to change the way they train their officers, and even to fire problem officers, from the beat up to the chief. One implication of these findings is that the state might regulate the police by regulating insurers. In this spirit, the Article considers several unconventional legal reforms that could reduce police misconduct, including a mandate that all municipalities purchase insurance coverage, a ban on “first-dollar” (no-deductible) policies that may reduce municipal care, and a requirement that small municipalities pool their risks and resources before buying insurance on the commercial market. At bottom, the Article establishes that liability insurance has profound significance to any comprehensive program of police reform. The Article also makes three important theoretical contributions to legal scholarship. First, it inverts the ordinary model of governance as public regulation of private action, observing that here, private insurers regulate public police. Second, it illustrates how insurers not only enforce the Constitution, but also construct its meaning. Among other things, in the hands of insurers, liability for constitutional violations and other police misconduct becomes “loss” to the police agency, which must be “controlled.” Perhaps surprisingly, by denaturing the law in this way and stripping it of its moral valence, insurers may actually advance the law’s aims. Finally, the Article helps to pry open the black box of deterrence. In fact, given widespread indemnification of both individual and entity liability for constitutional torts committed by police, an understanding of how insurers manage police risk is essential to any persuasive theory of civ
{"title":"How Private Insurers Regulate Public Police","authors":"John Rappaport","doi":"10.2139/SSRN.2733783","DOIUrl":"https://doi.org/10.2139/SSRN.2733783","url":null,"abstract":"A string of deadly police-citizen encounters, made public on an unprecedented scale, has thrust American policing into the crucible of political conflict. New social movements have taken to the streets, while legislators have introduced a wide array of reform proposals. Optimism is elusive, though, as the police are notoriously difficult to change. One powerful policy lever, however, has been overlooked: police liability insurance. Based on primary sources new to legal literature and interviews with nearly thirty insurance industry representatives, civil rights litigators, municipal attorneys, and consultants, this Article shows how liability insurers are capable of effecting meaningful change within the agencies they insure — a majority of police agencies nationwide. The Article is the first to describe and assess the contemporary market for liability insurance in the policing context; in particular, the effects of insurance on police behavior. While not ignoring the familiar (and potentially serious) problem of moral hazard, the Article focuses on the ways in which insurers perform a traditionally governmental “regulatory” role as they work to manage risk. Insurers get police agencies to adopt or amend written departmental policies on subjects like the use of force and strip searches, to change the way they train their officers, and even to fire problem officers, from the beat up to the chief. One implication of these findings is that the state might regulate the police by regulating insurers. In this spirit, the Article considers several unconventional legal reforms that could reduce police misconduct, including a mandate that all municipalities purchase insurance coverage, a ban on “first-dollar” (no-deductible) policies that may reduce municipal care, and a requirement that small municipalities pool their risks and resources before buying insurance on the commercial market. At bottom, the Article establishes that liability insurance has profound significance to any comprehensive program of police reform. The Article also makes three important theoretical contributions to legal scholarship. First, it inverts the ordinary model of governance as public regulation of private action, observing that here, private insurers regulate public police. Second, it illustrates how insurers not only enforce the Constitution, but also construct its meaning. Among other things, in the hands of insurers, liability for constitutional violations and other police misconduct becomes “loss” to the police agency, which must be “controlled.” Perhaps surprisingly, by denaturing the law in this way and stripping it of its moral valence, insurers may actually advance the law’s aims. Finally, the Article helps to pry open the black box of deterrence. In fact, given widespread indemnification of both individual and entity liability for constitutional torts committed by police, an understanding of how insurers manage police risk is essential to any persuasive theory of civ","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2733783","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279607","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}
In Speech Matters (Princeton 2014), Seana Shiffrin explains why lying is wrong, why freedom of speech is right, and why those two views are compatible. This review lauds Shiffrin’s book for its creative and powerful coherence of vision. It lays its claims about both lying and free speech on the same foundation: on a view of sincere communication as a prerequisite for moral agency and moral progress. In this regard, Shiffrin’s book stands in sharp rebuke to the current trend, in the Supreme Court and elsewhere, of assuming that the freedom of speech must include a right to lie. Instead, Shiffrin argues, the reasons that we have freedom of speech are the same reasons that lying is rarely morally permissible. At the same time, the coherence of Shiffrin’s view also reveals a certain symmetry between Kantian accounts of lying and predominant views of free speech, one that not everyone will find salutary. In both, the importance of communication seems to override other interests, even other moral commitments. While Shiffrin articulates a compelling view of why free and authentic communication serves a distinct, indeed a singular, role in moral identity, the question remains whether that role requires quite so much protection, either against lying or in favor of free speech. Nevertheless, Shiffrin’s book puts forth an original and authoritative view on these questions, one that will challenge and instruct anyone interested in lying, free speech, or the communicative responsibilities we owe to ourselves and others.
{"title":"How Much Does Speech Matter","authors":"Leslie Kendrick","doi":"10.2139/SSRN.2724040","DOIUrl":"https://doi.org/10.2139/SSRN.2724040","url":null,"abstract":"In Speech Matters (Princeton 2014), Seana Shiffrin explains why lying is wrong, why freedom of speech is right, and why those two views are compatible. This review lauds Shiffrin’s book for its creative and powerful coherence of vision. It lays its claims about both lying and free speech on the same foundation: on a view of sincere communication as a prerequisite for moral agency and moral progress. In this regard, Shiffrin’s book stands in sharp rebuke to the current trend, in the Supreme Court and elsewhere, of assuming that the freedom of speech must include a right to lie. Instead, Shiffrin argues, the reasons that we have freedom of speech are the same reasons that lying is rarely morally permissible. At the same time, the coherence of Shiffrin’s view also reveals a certain symmetry between Kantian accounts of lying and predominant views of free speech, one that not everyone will find salutary. In both, the importance of communication seems to override other interests, even other moral commitments. While Shiffrin articulates a compelling view of why free and authentic communication serves a distinct, indeed a singular, role in moral identity, the question remains whether that role requires quite so much protection, either against lying or in favor of free speech. Nevertheless, Shiffrin’s book puts forth an original and authoritative view on these questions, one that will challenge and instruct anyone interested in lying, free speech, or the communicative responsibilities we owe to ourselves and others.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274641","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：