Stanford Law Review最新文献_第2页

Contemporary Voting Rights Controversies Through the Lens of Disability 残疾人视角下的当代投票权争议

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2016-05-16 DOI: 10.2139/SSRN.2780693

R. Belt

People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advanced warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention towards ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability as well and moreover are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.

残疾人是选民的定时炸弹。据估计，在未来25年里，30%到35%的选民将需要某种形式的住宿。尽管残疾选民人数众多，而且还在不断增加，但他们的投票与他们的人数不成比例。我们可以把残疾选民视为“煤矿里的金丝雀”，这些人不仅为他们自己，也为整个制度提前警告了投票中的结构性困难。解决残疾人投票中的问题将加强整个制度，并有助于改善每个人的投票过程，特别是来自弱势群体的人。此外，尽管选举法学者在很大程度上忽略了残疾人选民所面临的独特投票问题，但在当代美国选举政治中，几乎每一次重大的投票争议都直接涉及残疾人问题。本文考察了2016年大选前残疾人参与投票的状况，揭示了一个潜伏在幕后太久的选举问题。目前关于投票权和选民限制的辩论往往忽视了当前法律环境对残疾人的不同影响。本文的见解为改善被剥夺权利的个人在投票过程中的问题提供了另一个干预角度。考虑到即将举行的总统选举，这一改革呼吁是及时的。我们倾向于认为投票和残疾的问题，如果我们考虑这些问题的话，是物理访问的经典问题。但事实上，选举律师所关注的与投票有关的当代问题也与残疾密切相关，而且是调查的核心。本文揭示了我国当代选举法问题的隐性残障含义。

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引用次数: 19

They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum 他们先在这里:美国印第安部落、种族和宪法最低限度

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2016-02-29 DOI: 10.2139/SSRN.2746166

Sarah Krakoff

In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are not subject to heightened scrutiny. Yet this deferential approach has been subject to recent criticism and is currently being challenged in pending cases. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, courts and commentators question the distinction between tribes’ political and racial status, and urge courts to strike down child welfare and gaming laws that benefit tribes. Yet tribes (as collectives) must trace their heritage to peoples who preceded European/American settlement in order to establish the political relationship with the federal government. Tribes, in order to be recognized as such under the Constitution, therefore must, as an initial definitional matter, consist of people tied together by something akin to lineage. Descent and ancestry (often conflated with the socio-legal category of “race,”) are the difference between legitimate federal recognition of tribal status and unauthorized and unconstitutional acts by Congress. Congress, in other words, cannot establish a government-to-government relationship with just any group of people. Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America, and federal courts should not use that constitutional distinction against tribes in a misguided effort to eradicate all traces of things currently sounding in “race.”The argument advanced here might be seen as a form of American Indian law exceptionalism. Yet it is consistent with racial formation theory’s project of understanding race as a construction that serves, creates, and perpetuates legalized subordination, and that also shapes daily social conceptions and interactions. Racial formation theory calls for multiple accounts of racialization depending on the social and economic purposes served by each groups’ subordination. On the remedial side, racial formation theory therefore necessarily anticipates what we might think of as multiple exceptionalisms. Reversing policies that aimed to eliminate Native people from the continent, and the racialized understanding of Indians that drove them, requires maintaining the political status of tribes as separate sovereigns, not destroying it in the name of an ahistorical conception of “race” neutrality.

在美国法律中，原住民(在《宪法》和其他地方称为“部落”)是与联邦政府有直接关系的主权国家。部落的政府地位使他们在许多法律目的上有别于其他少数群体，包括平等保护分析。在现行的平等保护原则下，促进联邦政府与部落及其成员之间独特关系的分类不受严格审查。然而，这种恭顺的做法最近受到了批评，目前正在未决案件中受到质疑。由于对宪法的理解越来越倾向于不分肤色或种族中立，法院和评论人士质疑部落的政治地位和种族地位之间的区别，并敦促法院废除有利于部落的儿童福利和博彩法律。然而，部落(作为集体)必须追溯到欧洲/美洲人定居之前的民族，以便与联邦政府建立政治关系。因此，为了在宪法下被承认为部落，作为一个最初的定义问题，部落必须由由类似血统的东西联系在一起的人们组成。血统和祖先(通常与社会法律范畴的“种族”混为一谈)是联邦对部落地位的合法承认与国会未经授权和违宪行为之间的区别。换句话说，国会不能与任何一群人建立政府对政府的关系。部落因其与北美土著人民的关系而与其他群体区别对待，联邦法院不应该用这种宪法区别来对付部落，以误导人们消除目前听起来带有“种族”色彩的所有痕迹。这里提出的论点可能被视为美国印第安人法律例外主义的一种形式。然而，这与种族形成理论将种族理解为一种结构是一致的，这种结构服务于、创造并延续了合法的从属关系，也塑造了日常的社会概念和互动。种族形成理论要求根据每个群体的从属关系所服务的社会和经济目的，对种族化进行多种解释。在补救方面，种族形成理论因此必然预见到我们可能认为的多重例外主义。扭转旨在将土著居民从大陆上消灭的政策，以及对驱使他们的印第安人的种族化理解，需要维持部落作为独立主权的政治地位，而不是以“种族”中立的非历史概念的名义摧毁它。

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引用次数: 6

Material Facts in the Debate Over Twombly and Iqbal 托姆布雷和伊克巴尔之争中的重要事实

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2016-02-01 DOI: 10.2139/SSRN.2570943

Jonah B. Gelbach

This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading’s case-quality effects -- a quintessential empirical question -- simply can't be answered using data.This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.

本文从近2000个随机选择的就业歧视和合同案件中，提供了关于被告提出的即决判决动议裁决的经验证据，试图评估托姆布雷和伊克巴尔在根据价值筛选案件方面的表现。考虑到当事各方的行为可能在托姆布雷和伊克巴尔事件之后发生变化的可能性，我首先解释这些数据如何有助于这种评估。然后，我报告的结果表明，即使使用如此庞大的数据集——迄今为止为解决这个问题而收集的最全面的数据——我们也无法判断“TwIqbal”的支持者还是批评者，在根据价值对案件进行发现前过滤的新合理性辩护制度的有效性方面，谁更正确。这一无效结果指出了一种非常现实的可能性，即合理性辩护的案例质量效应——一个典型的经验主义问题——根本无法用数据来回答。因此，本文的基本信息是，经验证据不太可能解决关于托姆布雷和伊克巴尔开创的新申诉制度对案件质量影响的争论。

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引用次数: 9

Speech-Facilitating Conduct Speech-Facilitating行为

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2016-01-31 DOI: 10.31228/osf.io/ctf7s

Jud Campbell

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law — restrictions on photography and audiovisual recording, limits on campaign contributions, putative news gathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray.This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases — including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees — is now out of step with current doctrine.

言论自由原则通常只保护言论表达，对非表达性行为的规定超出了第一修正案的范围。然而，最高法院已经认识到，对言论自由的剥夺“可能在言论过程的不同阶段发生作用”。保护有利于言论的非表达性行为的这一概念触及了第一修正案中许多最具争议的问题——限制摄影和视听记录、限制竞选捐款、假定的新闻记者采访特权、对言论的强制补贴和结社权，等等。然而，学者们通常孤立地研究这些主题，通常将重点放在对言论的下游影响上，作为第一修正案覆盖范围的试金石。通常的结论是，最高法院的判决是混乱的。本文认为，在采用对特定权利的细粒度关注时，很容易忽视原则的关键特征。相反，该条提出了一个总体框架，在描述性和规范性上汇集了言论自由法的不同分支。该框架的指导原则是，第一修正案对非表达性行为的覆盖范围取决于政府是否使用针对言论的规则(例如，对报纸征收特别税)，而不是取决于言论是否间接受到其他宪法规则的特定应用(例如，适用于报纸的童工法)的负担。这一“反目标”原则的应用因环境而异，但其总体概念令人惊讶地全面解释了最高法院的大多数判决。追溯反目标原则的发展还揭示了法院处理基于非表达行为的索赔方式的一个未被充分认识的转变。这一历史性论点表明，在法院的许多基础案件中，包括巴克利诉法雷奥案、布莱兹堡诉海耶斯案、阿布德诉底特律教育委员会案和罗伯茨诉美国Jaycees案，其推理已经与当前的原则不一致。

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引用次数: 5

Three Tests for Practical Evaluation of Partisan Gerrymandering 党派选区划分实务评估的三个检验

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2015-12-28 DOI: 10.2139/SSRN.2671607

S. Wang

Since the United States Supreme Court’s Davis v. Bandemer ruling in 1986, partisan gerrymandering for statewide electoral advantage has been held to be justiciable. The existing Supreme Court standard, culminating in Vieth v. Jubelirer and LULAC v. Perry, holds that a test for gerrymandering should demonstrate both intents and effects, and that partisan gerrymandering may be recognizable by its asymmetry: for a given distribution of popular votes, if the parties switch places in popular vote, the numbers of seats will change in an unequal fashion. However, the asymmetry standard is only a broad statement of principle, and no analytical method for assessing asymmetry has yet been held by the Supreme Court to be manageable. This Article proposes three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts. The first test relies on computer simulation to estimate appropriate levels of representation for a given level of popular vote, and provides a way to measure the effects of a gerrymander. The second and third tests, which evaluate intent, rely on well-established statistical principles, and can be carried out using a hand calculator without examination of maps or redistricting procedures. I apply these standards to a variety of districting schemes, starting from the original “Gerry-manderˮ of 1812 up to modern cases. In post-2010 Congressional elections, partisan gerrymandering in a handful of states generated effects that are larger than the total nationwide effect of population clustering. By applying these standards in two recent cases, I show that Arizona legislative districts (Harris v. Arizona Independent Redistricting Commission) fail to qualify as a partisan gerrymander, but Maryland’s Congressional districts (Shapiro v. McManus) do. I propose that an intents-and-effects standard based on these tests is robust enough to mitigate the need to demonstrate predominant partisan intent. The three statistical standards offered here add to the judge’s toolkit for rapidly and rigorously identifying the effects of redistricting.

自1986年美国最高法院戴维斯诉班德默案(Davis v. Bandemer)裁决以来，为了在全州选举中获得优势而进行的党派不公正划分一直被认为是可以审理的。现有的最高法院标准，在Vieth v. Jubelirer和LULAC v. Perry案中达到了顶点，认为对不公正划分选区的测试应该显示意图和效果，党派不公正划分选区可以通过其不对称来识别:对于给定的普选分配，如果政党在普选中交换位置，席位数量将以不平等的方式变化。然而，不对称标准只是一个宽泛的原则陈述，最高法院还没有认为评估不对称的分析方法是可管理的。本文提出了三种统计检验来可靠地评估州一级选区方案的不对称性:(a)基于全国地区特征的预期赢得的席位数量不具代表性的扭曲;(b)两党得票差额不一致;(c)为负责重新划分选区的政党建立可靠的胜利，通过平均和中位数选票份额的差异来衡量，或者通过不同地区的选票分布异常均匀来衡量。第一个测试依靠计算机模拟来估计给定普选水平的适当代表水平，并提供一种衡量不公正划分的影响的方法。第二和第三项测试是评估意图，依据的是公认的统计原则，可以使用手动计算器进行，而无需检查地图或重新划分选区的程序。我将这些标准应用于各种分区方案，从最初的1812年“格里曼德”(Gerry-mander)到现代的案例。在2010年后的国会选举中，少数几个州的党派不公正划分选区所产生的影响，比人口聚集对全国的总体影响还要大。通过在最近的两个案例中应用这些标准，我表明亚利桑那州的立法区(哈里斯诉亚利桑那州独立重新划分委员会)不符合党派不公正划分的条件，但马里兰州的国会区(夏皮罗诉麦克马纳斯)符合。我建议，基于这些测试的意图和效果标准足够强大，可以减轻证明主要党派意图的需要。这里提供的三个统计标准增加了法官的工具包，以迅速和严格地确定重新划分的影响。

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引用次数: 58

When Nicknames Were Crowdsourced: or, How to Change a Team's Mascot 当昵称是众包的:或者，如何改变一个团队的吉祥物

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2015-06-30 DOI: 10.2139/SSRN.2557870

Richard Craswell

This essay is about who can change a sports team’s nickname. In fact, it’s mostly about history, and how teams’ control over their nicknames has changed over time. Most of the essay traces the history of six well-known football and baseball team nicknames, focusing on the years from (roughly) 1890 to 1930. The six case studies are: the Nebraska Cornhuskers, the Brooklyn Dodgers, the Michigan State Spartans, the Washington Senators, the Notre Dame Fighting Irish, and the Chicago Cubs.In addition, though, this essay is also about the future. A number of groups have asked Daniel Snyder, the owner of Washington’s pro football team, to change that team’s nickname. So far, Mr. Snyder has refused. My essay begins with a fictional account of how that nickname might conceivably be changed even without Mr. Snyder’s consent. That possibility may strike modern readers as strange – but in 1890, it would have seemed perfectly normal.

这篇文章是关于谁可以改变一个运动队的昵称。事实上，这主要是关于历史，以及球队对昵称的控制是如何随着时间的推移而变化的。这篇文章的大部分内容追溯了六个著名的足球和棒球球队昵称的历史，重点是(大致)从1890年到1930年。这六个案例研究分别是:内布拉斯加州玉米外壳队、布鲁克林道奇队、密歇根州立斯巴达队、华盛顿参议员队、巴黎圣母院战斗爱尔兰队和芝加哥小熊队。此外，这篇文章也是关于未来的。一些团体已经要求华盛顿职业橄榄球队的老板丹尼尔·斯奈德(Daniel Snyder)更改球队的昵称。到目前为止，斯奈德拒绝了。我的文章以一个虚构的故事开始，讲述了即使没有斯奈德的同意，这个绰号也可能被改变。这种可能性可能会让现代读者感到奇怪，但在1890年，这似乎是完全正常的。

引用次数: 1

The Rule of Probabilities: A Practical Approach for Applying Bayes' Rule to the Analysis of DNA Evidence 概率法则:应用贝叶斯法则分析DNA证据的实用方法

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2015-01-13 DOI: 10.2139/SSRN.2549068

I. Ayres, B. Nalebuff

Bayes’ rule is not being used to guide jury decision making in the vast majority of criminal cases introducing evidence of DNA testing. Instead of telling juries the “source probability,” the probability that the individual whose DNA matches was the source of the forensic evidence found at the crime scene, experts only present pieces of the puzzle. They provide the probability that a randomly selected innocent person would have a match or the expected number of innocent matches in the database. In some cases, the random match probability will be so low (one in a quadrillion) that the intuitive source probability is practically one hundred percent. But, in other cases, with large database trawls and random match probability at 1 in a million, jurors will have no ability to convert the random match probability or the likelihood ratio based on expected number of matches into relevant data that will help them address the question of guilt. This Article shows that a correct application of Bayes’ rule should lead fact-finders and litigants to focus on the size of two variables that influence the source probability: the probability that a non-source in the DNA database would have an alibi, and the probability that the source of the DNA is included in the database. This Article suggests practical means of estimating these two variables and argues that as a legal matter these parameters as well as the Bayesian posterior source probability are admissible in court. In particular, focusing on the prior probability that the “database is guilty,” i.e. the probability that someone in the database is the source of the forensic evidence, is not just analytically and empirically tractable, but avoids the evidentiary limitations concerning a particular defendant’s prior bad acts. Appropriate application of Bayes’ rule, far from preempting the fact-finding and adversarial process, can guide advocates to engage the important aspects of the evidence that are still likely to be open to contestation. Perhaps most important, appropriate application of Bayes’ rule will also allow jurors to reach verdicts via a coherent path that employs sound logic and reasoning.

在绝大多数引入DNA检测证据的刑事案件中，贝叶斯规则并没有被用来指导陪审团的决策。专家们没有告诉陪审团“来源概率”，即DNA匹配的人是在犯罪现场发现的法医证据来源的概率，而是只展示了拼图的一部分。它们提供随机选择的无辜的人有匹配的概率或数据库中无辜匹配的预期数量。在某些情况下，随机匹配概率非常低(千万亿分之一)，以至于直观的源概率实际上是100%。但是，在其他情况下，由于数据库庞大，随机匹配概率为百万分之一，陪审员将无法将随机匹配概率或基于预期匹配数量的可能性比转换为有助于他们解决有罪问题的相关数据。本文表明，贝叶斯规则的正确应用应该引导事实发现者和诉讼当事人关注影响来源概率的两个变量的大小:DNA数据库中非来源有不在场证明的概率，以及DNA来源被包含在数据库中的概率。本文提出了估计这两个变量的实用方法，并认为作为一个法律问题，这些参数以及贝叶斯后验源概率在法庭上是可以接受的。特别是，关注“数据库有罪”的先验概率，即数据库中某人是法医证据来源的概率，不仅在分析和经验上易于处理，而且避免了对特定被告先前不良行为的证据限制。适当应用贝叶斯规则，不仅不会妨碍事实调查和对抗过程，还可以引导辩护者利用证据中仍可能存在争议的重要方面。也许最重要的是，贝叶斯规则的适当应用也将允许陪审员通过一个连贯的路径，采用健全的逻辑和推理来达成裁决。

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引用次数: 12

Communicating with vegetative state patients: the role of neuroimaging in American disability law. 与植物人患者沟通:神经影像学在美国残疾法中的作用。

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2014-06-01

Dalia B Taylor

Patients in vegetative states appear to be awake but unconscious. If they have been in a vegetative state for more than one year, they have little chance of ever recovering. Additionally, no one can communicate with them, including physicians, loved ones, and families. However, new scientific evidence has challenged our understanding of this bleak reality. In particular, recent neuroscience research has shown that a substantial number of patients in vegetative states may actually be conscious and able to communicate through the use of brain-scanning technology. This exciting development poses many difficult questions, including the one analyzed here: now that we know neuroimaging may be the only way to communicate with these patients, will health care facilities be required to provide brain-scanning equipment under American disability law? This Note argues that lawsuits seeking neuroimaging technology from hospitals have a significant chance of success. The main challenge for plaintiffs will be convincing judges that existing scientific evidence actually shows that neuroimaging can facilitate communication with patients. Ultimately, if the appropriate legal framework develops, brain-scanning technology could permit patients in vegetative states to make decisions regarding their own medical care and allow families to communicate with their loved ones.

植物人状态下的病人似乎是清醒的，但没有意识。如果他们处于植物人状态超过一年，他们几乎没有机会恢复。此外，没有人可以与他们沟通，包括医生、亲人和家人。然而，新的科学证据挑战了我们对这一惨淡现实的理解。特别是，最近的神经科学研究表明，相当数量的植物人患者实际上可能是有意识的，并且能够通过使用大脑扫描技术进行交流。这一令人兴奋的发展提出了许多难题，包括本文分析的问题:既然我们知道神经成像可能是与这些患者交流的唯一方式，那么根据美国残疾人法，医疗机构是否需要提供脑部扫描设备?本报告认为，从医院寻求神经成像技术的诉讼有很大的成功机会。原告面临的主要挑战将是说服法官，现有的科学证据实际上表明，神经成像可以促进与患者的交流。最终，如果适当的法律框架得以发展，大脑扫描技术将允许植物人患者对自己的医疗护理做出决定，并允许家人与亲人沟通。

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引用次数: 0

God, Civic Virtue, and the American Way: Reconstructing Engel 上帝、公民美德与美国方式:重构恩格尔

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2014-04-11 DOI: 10.31228/osf.io/fzhwp

C. Lain

If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.

如果说有一个判决体现了我们浪漫地认为是司法审查的英勇的、反多数主义的功能，那就是1962年推翻学校祈祷的判决——恩格尔诉维塔莱案。恩格尔案激起了更多的愤怒，更多的国会试图推翻它，对最高法院的攻击可能比历史上任何其他决定都要多。事实上，恩格尔的反多数主义叙事是如此强烈，以至于学者们在很大程度上认为，历史记录支持了我们对这种情况的浪漫化看法。但事实并非如此。本文运用法律史的视角，重构恩格尔的故事，并探讨这种重构叙事的意蕴。恩格尔案看起来并不是反多数主义的案例，但认识到它不是什么，让我们看到了恩格尔案的本来面目:对最高法院决策的非常详尽的描述，丰富了宪法中的许多对话。恩格尔为新兴的研究文化力量的学术体系增添了新的线索，特别是社会运动，以产生宪法变革。它罕见地展示了大法官们明确参与司法审查的对话功能。它还揭示了大众宪政在实践中可能出现的质的差异，并对理论本身产生了影响。最后，恩格尔案仍然是一个关于最高法院决策和司法审查作用的有价值的见解。它们只是不是传统智慧让我们认为的那种见解。

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引用次数: 4

The modernization of American public law: health care reform and popular constitutionalism. 美国公法的现代化:医疗改革与大众宪政。

IF 4.9 1区社会学 Q1 Social Sciences

Stanford Law Review

Pub Date : 2014-04-01

David A Super

The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA's structural changes to public law likely will prove far more important should they become entrenched. The struggle over the ACA has triggered the kind of "constitutional moment" that has largely replaced Article V's formal amendment procedure since the Prohibition fiasco. The Court participates in this process, but the definitive and enduring character of these constitutional moments' outcomes springs from broad popular engagement. Despite the Court's ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic principles that guide the development of federalism, social insurance, tax policy, and privatization for decades to come. In each of these areas, the New Deal bequeathed us a delicate accommodation between traditionalist social values and modernizing norms of economic efficiency and interest group liberalism. This balance has come under increasing stress, with individual laws rejecting tradition far more emphatically than the New Deal did. But absent broad popular engagement, no definitive new principles could be established. The ACA's entrenchment would elevate technocratic norms across public law, the first change of our fundamental law since the civil rights revolution. The ACA's failure would rejuvenate individualistic, moralistic, pre-New Deal norms and allow opponents to attempt a counterrevolution against technocracy.

《患者保护和平价医疗法案》(ACA)在重要方面改变了美国公法，其影响远远超出了医疗保健。与全国独立企业联合会诉西贝利厄斯案带来的理论转变一样重要的是，如果ACA对公法的结构性改变变得根深蒂固，它们可能会被证明要重要得多。围绕平价医疗法案的斗争引发了一种“宪法时刻”，自禁酒令惨败以来，这种时刻在很大程度上取代了宪法第五条的正式修正程序。最高法院参与了这一过程，但这些宪法时刻的结果的决定性和持久性源于广泛的公众参与。不管最高法院的裁决和2012年大选的结果如何，在我们人民做出明确的决定之前，联邦和各州关于是否实施或搁置平价医疗法案的斗争将继续有增无减。ACA的成败将决定未来几十年指导联邦制、社会保险、税收政策和私有化发展的基本原则。在每一个领域，新政都给我们留下了传统主义社会价值观与经济效率和利益集团自由主义的现代化规范之间的微妙调和。这种平衡受到越来越大的压力，个别法律比新政更强烈地拒绝传统。但如果没有广泛的民众参与，就不可能确立明确的新原则。ACA的巩固将提升整个公法领域的技术官僚规范，这是自民权革命以来我国基本法的第一次变化。ACA的失败将使个人主义的、道德主义的、新政前的规范重新焕发活力，并允许反对者尝试一场反对技术官僚的反革命。

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