{"title":"Civil Rights--Eighth Amendment--Third Circuit Holds Parents of Mentally Ill Young Man Held in Solitary Confinement Stated Claims of Cruel and Unusual Punishment.--Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 5","pages":"1481-8"},"PeriodicalIF":3.4,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36300598","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}
Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity.The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis — shared meaning analysis — that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract. Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.
{"title":"Pseudo-Contract and Shared Meaning Analysis","authors":"R. Kar, M. Radin","doi":"10.2139/SSRN.3124018","DOIUrl":"https://doi.org/10.2139/SSRN.3124018","url":null,"abstract":"Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity.The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis — shared meaning analysis — that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract. Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"132 1","pages":"1135-1219"},"PeriodicalIF":3.4,"publicationDate":"2018-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47453665","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}
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, th
{"title":"The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power","authors":"N. Parrillo","doi":"10.2139/SSRN.2907797","DOIUrl":"https://doi.org/10.2139/SSRN.2907797","url":null,"abstract":"Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, th","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"685-794"},"PeriodicalIF":3.4,"publicationDate":"2018-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2907797","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41592021","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 several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.
{"title":"Multiple Chancellors: Reforming the National Injunction","authors":"Samuel L. Bray","doi":"10.2139/SSRN.2864175","DOIUrl":"https://doi.org/10.2139/SSRN.2864175","url":null,"abstract":"In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"417-482"},"PeriodicalIF":3.4,"publicationDate":"2017-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43707377","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}
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":"1 1","pages":""},"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":"131 2","pages":"658-65"},"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":"130 1","pages":"2397-2433"},"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":"131 1","pages":"96-132"},"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":"130 1","pages":"2082-2095"},"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":"130 6","pages":"1736-43"},"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}
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：