On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.
{"title":"The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing","authors":"Colin Miller","doi":"10.2139/SSRN.2145928","DOIUrl":"https://doi.org/10.2139/SSRN.2145928","url":null,"abstract":"On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67950315","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}
China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this article adds depth to existing understanding of institutional development in China, showing that increased innovation and competence are not resulting in greater authority for the courts. Despite thirty-four years of legal reforms and significant strengthening of legal institutions, the shadow of the law remains weak. Medical cases highlight largely unobserved trends in both law and governance in China, in particular state over-responsiveness to individual grievances. The findings presented here suggest limitations to contemporary understanding of both the functioning of the Chinese state and of the role of law in China, and add to existing literature on the non-convergence of the Chinese system to existing models of legal and political development.
{"title":"Malpractice Mobs: Medical Dispute Resolution in China","authors":"B. Liebman","doi":"10.7916/D8445M3B","DOIUrl":"https://doi.org/10.7916/D8445M3B","url":null,"abstract":"China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this article adds depth to existing understanding of institutional development in China, showing that increased innovation and competence are not resulting in greater authority for the courts. Despite thirty-four years of legal reforms and significant strengthening of legal institutions, the shadow of the law remains weak. Medical cases highlight largely unobserved trends in both law and governance in China, in particular state over-responsiveness to individual grievances. The findings presented here suggest limitations to contemporary understanding of both the functioning of the Chinese state and of the role of law in China, and add to existing literature on the non-convergence of the Chinese system to existing models of legal and political development.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71364590","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}
It is often said that the legal touchstone of agency independence is whether the agency head or heads are removable at will, or only for cause. Yet this test does not adequately describe the landscape of agency independence. There are many important agencies who are conventionally treated as independent, yet whose heads lack for-cause tenure protection. Conversely, there are agencies whose heads enjoy for-cause tenure protection, yet are by all accounts thoroughly dependent upon organized interest groups, the White House, legislators and legislative committees, or all of these. Legally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence. The crucial consideration, largely neglected in the literature, is the role of what Commonwealth lawyers call conventions. Agencies that lack for-cause tenure yet enjoy operative independence are protected by unwritten conventions that constrain political actors from attempting to remove their members, to direct their exercise of discretion, or both. Such conventions may be generated by a variety of mechanisms; the common feature is that norms arising within relevant legal and political communities impose sanctions for violations of agency independence or create beliefs or internalized moral strictures protecting that independence. Conversely, where agencies enjoy statutory independence yet lack operative independence, the reason is that the interaction among relevant political actors has failed to generate any such set of protective conventions. The lens of convention helps resolve a range of puzzles about the behavior of Presidents, legislators, judges and other actors with respect to agency independence – including the Supreme Court’s puzzling treatment of SEC independence in Free Enterprise Fund v. PCAOB.By bringing the conventional character of agency independence to the surface, U.S. courts may begin to incorporate ideas from the courts of Commonwealth legal systems – such as the United Kingdom and Canada – that are familiar with the promise and problems of conventions and with the methods for harmonizing conventions with written rules of law. My principal suggestion is that U.S. courts interpreting statutes and constitutional rules that bear on agency independence should adopt the leading Commonwealth approach, according to which judges may indirectly “recognize” conventions and incorporate them into their interpretation of written law, although they may not directly enforce conventions as freestanding obligations.
{"title":"Conventions of Agency Independence","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2103338","DOIUrl":"https://doi.org/10.2139/SSRN.2103338","url":null,"abstract":"It is often said that the legal touchstone of agency independence is whether the agency head or heads are removable at will, or only for cause. Yet this test does not adequately describe the landscape of agency independence. There are many important agencies who are conventionally treated as independent, yet whose heads lack for-cause tenure protection. Conversely, there are agencies whose heads enjoy for-cause tenure protection, yet are by all accounts thoroughly dependent upon organized interest groups, the White House, legislators and legislative committees, or all of these. Legally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence. The crucial consideration, largely neglected in the literature, is the role of what Commonwealth lawyers call conventions. Agencies that lack for-cause tenure yet enjoy operative independence are protected by unwritten conventions that constrain political actors from attempting to remove their members, to direct their exercise of discretion, or both. Such conventions may be generated by a variety of mechanisms; the common feature is that norms arising within relevant legal and political communities impose sanctions for violations of agency independence or create beliefs or internalized moral strictures protecting that independence. Conversely, where agencies enjoy statutory independence yet lack operative independence, the reason is that the interaction among relevant political actors has failed to generate any such set of protective conventions. The lens of convention helps resolve a range of puzzles about the behavior of Presidents, legislators, judges and other actors with respect to agency independence – including the Supreme Court’s puzzling treatment of SEC independence in Free Enterprise Fund v. PCAOB.By bringing the conventional character of agency independence to the surface, U.S. courts may begin to incorporate ideas from the courts of Commonwealth legal systems – such as the United Kingdom and Canada – that are familiar with the promise and problems of conventions and with the methods for harmonizing conventions with written rules of law. My principal suggestion is that U.S. courts interpreting statutes and constitutional rules that bear on agency independence should adopt the leading Commonwealth approach, according to which judges may indirectly “recognize” conventions and incorporate them into their interpretation of written law, although they may not directly enforce conventions as freestanding obligations.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67912700","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}
Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This article examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adoption by courts. I argue that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process to protect affirmative constitutional rights.
{"title":"Thirteenth Amendment Optimism","authors":"J. Greene","doi":"10.7916/D8KD1X1F","DOIUrl":"https://doi.org/10.7916/D8KD1X1F","url":null,"abstract":"Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This article examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adoption by courts. I argue that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process to protect affirmative constitutional rights.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71366927","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":"Stock Unloading and Banker Incentives","authors":"R. Jackson","doi":"10.7916/D8RF5V2G","DOIUrl":"https://doi.org/10.7916/D8RF5V2G","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368126","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}
An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.
{"title":"Delegating to Enemies","authors":"Jacob E. Gersen, Adrian Vermeule","doi":"10.2139/SSRN.2017974","DOIUrl":"https://doi.org/10.2139/SSRN.2017974","url":null,"abstract":"An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67856626","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}
The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight. Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: the class action and other complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.
{"title":"The Agency Class Action","authors":"Michael D. Sant'Ambrogio, Adam S. Zimmerman","doi":"10.2139/SSRN.1997421","DOIUrl":"https://doi.org/10.2139/SSRN.1997421","url":null,"abstract":"The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight. Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: the class action and other complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2012-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67838184","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}
Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political spending. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use - employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object - shareholders enjoy no right to opt out of financing corporate political activity. This article assesses whether the asymmetric rule of political opt-out rights is justified. The article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic opportunities - whether employment or investment-based - should not be used to secure compliance with or support for the economic actor’s political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the article suggests that the current asymmetry in opt-out rules may be unjustified. The article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.
{"title":"Unions, Corporations, and Political Opt-Out Rights after Citizens United","authors":"B. Sachs","doi":"10.2139/SSRN.1924916","DOIUrl":"https://doi.org/10.2139/SSRN.1924916","url":null,"abstract":"Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political spending. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use - employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object - shareholders enjoy no right to opt out of financing corporate political activity. This article assesses whether the asymmetric rule of political opt-out rights is justified. The article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic opportunities - whether employment or investment-based - should not be used to secure compliance with or support for the economic actor’s political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the article suggests that the current asymmetry in opt-out rules may be unjustified. The article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2011-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67791464","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}
Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a limited extent. This Article defends penalty-sensitive free- speech adjudication and calls for its expanded use within First Amendment law. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty-sensitive analysis can further important constitutional objectives: (1) by increasing fairness for similarly-situated speakers; (2) by mitigating chilling effects on protected speech; (3) by facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) by rooting out improper government motives; and (5) by promoting transparency in judicial decision-making. The Article also considers and rejects potential objections to the penalty-sensitive approach, concluding that it will often generate proper results in difficult First Amendment cases.
{"title":"Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment","authors":"Michaela Coenen","doi":"10.2139/ssrn.1908408","DOIUrl":"https://doi.org/10.2139/ssrn.1908408","url":null,"abstract":"Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a limited extent. This Article defends penalty-sensitive free- speech adjudication and calls for its expanded use within First Amendment law. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty-sensitive analysis can further important constitutional objectives: (1) by increasing fairness for similarly-situated speakers; (2) by mitigating chilling effects on protected speech; (3) by facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) by rooting out improper government motives; and (5) by promoting transparency in judicial decision-making. The Article also considers and rejects potential objections to the penalty-sensitive approach, concluding that it will often generate proper results in difficult First Amendment cases.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2011-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67778031","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}
American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jeny-built model was in place, Congress signaled its approval, and an academic-John Dickinson-wrote a persuasive book extolling its virtues. As a result, the appellate review model became entrenched by the 1920s and eventually spread to all of administrative law. The early adoption of the appellate review model helps explain why the Supreme Court never seriously grappled with Article III problems created by the widespread use of administrative agencies to adjudicate cases once the New Deal and the expansion of the administrative state arrived. It also helps explain why the judiciary has played such a large role in the development of administrative policy in the United States relative to other legal systems. INTRODUCTION . .................................................. 940 I. NINETEENTH-CENTURY BACKGROUND ........................... 946 II. THE EMERGENCE OF THE APPELLATE REVIEW MODEL ........ 953 A. The ICC Crisis ....................................... 953 B. The Hepburn Act .................................... 955 C. Strategic Retreat ..................................... 959 D. The Source of the Appellate Review Model ........... 963 * Charles Evans Hughes Professor of Law, Columbia Law School. The Article has benefited from comments by participants in workshops at Chicago, Columbia, Minnesota, and Vanderbilt Law Schools. Special thanks to Charles McCurdy,Jerry Mashaw, and Henry Monaghan for their interest and input. Brad Lipton and Brantley Webb provided valuable research assistance. Some of the material in this Article appears in abbreviated form in Thomas W. Merrill, The Origins of American Style Judicial Review, in Comparative Administrative Law 389 (Susan Rose-Ackerman & Peter L. Lindseth eds., 2011).
{"title":"Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law","authors":"T. Merrill","doi":"10.7916/D88915DF","DOIUrl":"https://doi.org/10.7916/D88915DF","url":null,"abstract":"American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jeny-built model was in place, Congress signaled its approval, and an academic-John Dickinson-wrote a persuasive book extolling its virtues. As a result, the appellate review model became entrenched by the 1920s and eventually spread to all of administrative law. The early adoption of the appellate review model helps explain why the Supreme Court never seriously grappled with Article III problems created by the widespread use of administrative agencies to adjudicate cases once the New Deal and the expansion of the administrative state arrived. It also helps explain why the judiciary has played such a large role in the development of administrative policy in the United States relative to other legal systems. INTRODUCTION . .................................................. 940 I. NINETEENTH-CENTURY BACKGROUND ........................... 946 II. THE EMERGENCE OF THE APPELLATE REVIEW MODEL ........ 953 A. The ICC Crisis ....................................... 953 B. The Hepburn Act .................................... 955 C. Strategic Retreat ..................................... 959 D. The Source of the Appellate Review Model ........... 963 * Charles Evans Hughes Professor of Law, Columbia Law School. The Article has benefited from comments by participants in workshops at Chicago, Columbia, Minnesota, and Vanderbilt Law Schools. Special thanks to Charles McCurdy,Jerry Mashaw, and Henry Monaghan for their interest and input. Brad Lipton and Brantley Webb provided valuable research assistance. Some of the material in this Article appears in abbreviated form in Thomas W. Merrill, The Origins of American Style Judicial Review, in Comparative Administrative Law 389 (Susan Rose-Ackerman & Peter L. Lindseth eds., 2011).","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71364836","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：