Scholars have criticized the Court’s qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid the qualified immunity defense by pursuing claims for nominal damages alone. Such nominal claims have a lengthy pedigree, both as a common law analog to the declaratory judgment, and as a remedy for constitutional violations. Because they do not threaten to impose personal liability on official defendants, nominal claims should not give rise to a qualified immunity defense. By seeking only nominal relief, litigants could secure the vindication of their constitutional rights in cases where legal uncertainty might otherwise lead to a dismissal. Such a regime would advance the acknowledged interest in maintaining a vibrant body of constitutional law without threatening to impose ruinous liability on the officials named in the complaint.
{"title":"Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages","authors":"James E. Pfander","doi":"10.2139/SSRN.1795341","DOIUrl":"https://doi.org/10.2139/SSRN.1795341","url":null,"abstract":"Scholars have criticized the Court’s qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid the qualified immunity defense by pursuing claims for nominal damages alone. Such nominal claims have a lengthy pedigree, both as a common law analog to the declaratory judgment, and as a remedy for constitutional violations. Because they do not threaten to impose personal liability on official defendants, nominal claims should not give rise to a qualified immunity defense. By seeking only nominal relief, litigants could secure the vindication of their constitutional rights in cases where legal uncertainty might otherwise lead to a dismissal. Such a regime would advance the acknowledged interest in maintaining a vibrant body of constitutional law without threatening to impose ruinous liability on the officials named in the complaint.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2011-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67747475","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 recent years, the Supreme Court has increasingly supplemented traditional Marbury-style judicial review with constitutionally inspired clear statement rules. These canons of statutory construction have two characteristics. First, they impose a clarity tax on Congress by insisting that Congress legislate exceptionally clearly when it wishes to achieve a statutory outcome that threatens to intrude upon some judicially identified constitutional value-such as federalism, nonretroactivity, or the rule of law. Second, as the Court has acknowledged, clear statement rules apply even though the outcomes avoided by such rules would not themselves violate the Constitution. For example, although the Court has held that the Ex Post Facto Clause prohibits retroactivity only in the criminal context, the Court has also culled from that clause (among others) a more general value that it uses to justify a nonretroactivity clear statement rule for civil cases.This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them. In fact, the Constitution represents a "bundle of compromises" that embody not merely abstract ends or values, but also particular means that limit and define the scope and the content of those values. If the Ex Post Facto Clause prohibits retroactivity in the criminal context, it violates the terms of the implementing bargain to extend its animating value to civil contexts. This concern-that clear statement rules impermissibly abstract from concrete constitutional means to general constitutional ends-applies, moreover, even if one believes that most constitutional law is now properly found in judge-made implementing doctrine. Such doctrine itself often defines relatively precise means of enforcing the Constitution, not merely the vague constitutional ends that so often animate clear statement rules.
{"title":"Clear Statement Rules and the Constitution","authors":"J. Manning","doi":"10.2139/SSRN.2849258","DOIUrl":"https://doi.org/10.2139/SSRN.2849258","url":null,"abstract":"In recent years, the Supreme Court has increasingly supplemented traditional Marbury-style judicial review with constitutionally inspired clear statement rules. These canons of statutory construction have two characteristics. First, they impose a clarity tax on Congress by insisting that Congress legislate exceptionally clearly when it wishes to achieve a statutory outcome that threatens to intrude upon some judicially identified constitutional value-such as federalism, nonretroactivity, or the rule of law. Second, as the Court has acknowledged, clear statement rules apply even though the outcomes avoided by such rules would not themselves violate the Constitution. For example, although the Court has held that the Ex Post Facto Clause prohibits retroactivity only in the criminal context, the Court has also culled from that clause (among others) a more general value that it uses to justify a nonretroactivity clear statement rule for civil cases.This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them. In fact, the Constitution represents a \"bundle of compromises\" that embody not merely abstract ends or values, but also particular means that limit and define the scope and the content of those values. If the Ex Post Facto Clause prohibits retroactivity in the criminal context, it violates the terms of the implementing bargain to extend its animating value to civil contexts. This concern-that clear statement rules impermissibly abstract from concrete constitutional means to general constitutional ends-applies, moreover, even if one believes that most constitutional law is now properly found in judge-made implementing doctrine. Such doctrine itself often defines relatively precise means of enforcing the Constitution, not merely the vague constitutional ends that so often animate clear statement rules.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2849258","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387007","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 Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the dis posing power of the legislature?the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administra tive law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of constitutional common law?the power of courts to pre scribe rules inspired by the Constitution but subject to legislative revision, as described in Professor Henry Monaghan fs pathbreaking 1975 Harvard Law Review Foreword?may in fact be unconstitutional in many of its applications.
{"title":"The Disposing Power of the Legislature","authors":"T. Merrill","doi":"10.7916/D89Z94H8","DOIUrl":"https://doi.org/10.7916/D89Z94H8","url":null,"abstract":"The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the dis posing power of the legislature?the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administra tive law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of constitutional common law?the power of courts to pre scribe rules inspired by the Constitution but subject to legislative revision, as described in Professor Henry Monaghan fs pathbreaking 1975 Harvard Law Review Foreword?may in fact be unconstitutional in many of its applications.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71365543","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":"A treatise on the specific performance of contracts","authors":"J. Pomeroy, J. Mann","doi":"10.2307/1112913","DOIUrl":"https://doi.org/10.2307/1112913","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2009-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1112913","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225009","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}
This paper explores the appropriate system of civil liability for mandatory securities disclosure violations by established, publicly traded issuers. The U.S. system's design has become outmoded as the underlying mandatory disclosure regime that has moved from an emphasis on disclosure at the time that an issuer makes a public offering, to an emphasis on the issuer's ongoing periodic disclosures. An efficiency analysis shows that, unlike U.S. law today, the relevant actors should have equally great civil liability incentives to comply with the disclosure rules whether or not the issuer is offering securities at the time. An issuer not making a public offering of securities should have no liability because the compensatory justification is weak. Deterrence will be achieved instead by imposing liability on other actors. An issuer's annual filings should be signed by an external certifier - an investment bank or other well capitalized entity with financial expertise. If the filing contains a material misstatement and the certifier fails to do due diligence, the certifier would face measured liability. Officers and directors would be subject to similar liability. Damages would be payable to the issuer. When an issuer is making a public offering, it would be liable to investors for its disclosure violations as an antidote to what otherwise would be an extra incentive not to comply. This design would address two major complaints concerning the existing U.S. civil liability system: underwriter Section 11 liability for a lack of due diligence concerning disclosures that in modern offerings underwriters have no realistic ability to police, and litigation-expensive issuer class action fraud-on-market liability. The system suggested here would eliminate both sorts of liability. But unlike elimination reforms proposed by underwriters and issuers, it would retain deterrence by substituting in place of these liabilities more effective and efficient civil liability incentives for disclosure compliance.
{"title":"Civil Liability and Mandatory Disclosure","authors":"M. Fox","doi":"10.7916/D8Z31Z4H","DOIUrl":"https://doi.org/10.7916/D8Z31Z4H","url":null,"abstract":"This paper explores the appropriate system of civil liability for mandatory securities disclosure violations by established, publicly traded issuers. The U.S. system's design has become outmoded as the underlying mandatory disclosure regime that has moved from an emphasis on disclosure at the time that an issuer makes a public offering, to an emphasis on the issuer's ongoing periodic disclosures. An efficiency analysis shows that, unlike U.S. law today, the relevant actors should have equally great civil liability incentives to comply with the disclosure rules whether or not the issuer is offering securities at the time. An issuer not making a public offering of securities should have no liability because the compensatory justification is weak. Deterrence will be achieved instead by imposing liability on other actors. An issuer's annual filings should be signed by an external certifier - an investment bank or other well capitalized entity with financial expertise. If the filing contains a material misstatement and the certifier fails to do due diligence, the certifier would face measured liability. Officers and directors would be subject to similar liability. Damages would be payable to the issuer. When an issuer is making a public offering, it would be liable to investors for its disclosure violations as an antidote to what otherwise would be an extra incentive not to comply. This design would address two major complaints concerning the existing U.S. civil liability system: underwriter Section 11 liability for a lack of due diligence concerning disclosures that in modern offerings underwriters have no realistic ability to police, and litigation-expensive issuer class action fraud-on-market liability. The system suggested here would eliminate both sorts of liability. But unlike elimination reforms proposed by underwriters and issuers, it would retain deterrence by substituting in place of these liabilities more effective and efficient civil liability incentives for disclosure compliance.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368505","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}
This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the "facts" about a social group, an approach that she terms "fact-based adjudication." Professor Goldberg critiques this approach for its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms. The Article also observes that because fact-based adjudication enables courts to leave norms unacknowledged, it does serve the judiciary's institutional interests by maximizing flexibility for future decisionmaking regarding restrictions on group members' rights. At the same time, however, this approach facilitates inconsistency in theory and outcome by enabling courts to variously embrace and reject traditional rationales for restricting social groups without having to justify the inconsistent treatment of group-related norms. As a possible remedy for these flaws, the Article considers the costs and benefits of greater judicial candor regarding the normative underpinning of decisions. Although Professor Goldberg ultimately advocates only a limited modification to the current fact-based adjudication regime, she concludes that our theories of judicial review will improve, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable judicial involvement in making normative judgments about social groups.
{"title":"Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication","authors":"Suzanne B. Goldberg","doi":"10.7916/D8WD4033","DOIUrl":"https://doi.org/10.7916/D8WD4033","url":null,"abstract":"This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts \"tip\" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the \"facts\" about a social group, an approach that she terms \"fact-based adjudication.\" Professor Goldberg critiques this approach for its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms. The Article also observes that because fact-based adjudication enables courts to leave norms unacknowledged, it does serve the judiciary's institutional interests by maximizing flexibility for future decisionmaking regarding restrictions on group members' rights. At the same time, however, this approach facilitates inconsistency in theory and outcome by enabling courts to variously embrace and reject traditional rationales for restricting social groups without having to justify the inconsistent treatment of group-related norms. As a possible remedy for these flaws, the Article considers the costs and benefits of greater judicial candor regarding the normative underpinning of decisions. Although Professor Goldberg ultimately advocates only a limited modification to the current fact-based adjudication regime, she concludes that our theories of judicial review will improve, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable judicial involvement in making normative judgments about social groups.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2008-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368543","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}
Human rights treaties play an important role in international relations but they lack a foundation in moral philosophy and doubts have been raised about their effectiveness for constraining states. Drawing on ideas from the literature on economic development, this paper argues that international concern should be focused on human welfare rather than on human rights. A focus on welfare has three advantages. First, the proposition that governments should advance the welfare of their populations enjoys broader international and philosophical support than do the various rights that are incorporated in the human rights treaties. Second, the human rights treaties are both too rigid and too vague - they do not allow governments to adopt reasonable policies that advance welfare at the expense of rights, and they do not set forth rules governing how states may trade off rights. A welfare treaty could provide guidance by supplying a maximand along with verifiable measures of compliance. Third, the human rights regime and international development policy work at cross-purposes. Development policy favors the poorest states, while the human rights regime condemns the states with the worst governments: unfortunately, the poorest states usually have the worst governments. Various possible welfare treaties are surveyed.
{"title":"Human Welfare, Not Human Rights","authors":"E. Posner","doi":"10.2139/SSRN.1105209","DOIUrl":"https://doi.org/10.2139/SSRN.1105209","url":null,"abstract":"Human rights treaties play an important role in international relations but they lack a foundation in moral philosophy and doubts have been raised about their effectiveness for constraining states. Drawing on ideas from the literature on economic development, this paper argues that international concern should be focused on human welfare rather than on human rights. A focus on welfare has three advantages. First, the proposition that governments should advance the welfare of their populations enjoys broader international and philosophical support than do the various rights that are incorporated in the human rights treaties. Second, the human rights treaties are both too rigid and too vague - they do not allow governments to adopt reasonable policies that advance welfare at the expense of rights, and they do not set forth rules governing how states may trade off rights. A welfare treaty could provide guidance by supplying a maximand along with verifiable measures of compliance. Third, the human rights regime and international development policy work at cross-purposes. Development policy favors the poorest states, while the human rights regime condemns the states with the worst governments: unfortunately, the poorest states usually have the worst governments. Various possible welfare treaties are surveyed.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139717","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}
For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle. Is private enforcement of Rule 10b-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental and neglected question demands attention today more than ever. An academic consensus has now emerged that private enforcement of Rule 10b-5 cannot be defended on compensatory grounds, at least in its most common form (a fraud-on-the-market class action brought against a non-trading issuer). That leaves the oft-cited, but under-theorized, rationale that private enforcement is a necessary supplement to the securities fraud deterrence efforts of the SEC. When this justification is critically examined, however, it proves to be highly debatable. A rich body of law and economics scholarship teaches that bounty hunter enforcement of an overbroad law, like Rule 10b-5, may lead to overdeterrence and stymie governmental efforts to set effective enforcement policy (even assuming away strike suits and the agency costs that attend class action litigation); if private enforcement is nevertheless desirable - a contestable proposition - it is because a world without it might result in even greater deviations from optimal deterrence, due to SEC budgetary constraints, inefficiency and/or capture. By carefully explicating the relative advantages and disadvantages of private Rule 10b-5 enforcement versus exclusive public enforcement, this Article reveals a new and better way to remedy the shortcomings of the Rule 10b-5 class action. It proposes that policymakers adopt an oversight approach to securities litigation reform by, for example, granting the SEC the ability to screen which Rule 10b-5 class actions may be filed, and against whom. By muting the overdeterrence threat of private litigation and placing the SEC back firmly at the helm of Rule 10b-5 enforcement policy, this approach would mitigate the primary disadvantages of private enforcement. Moreover, by preserving a private check on SEC inefficiency and capture and allowing the SEC to continue to supplement its budget with private enforcement resources, it would do so without eliminating the primary advantages of the current system. This approach stands in stark contrast to prior securities litigation reforms, which have responded to the overdeterrence threat posed by Rule 10b-5 class actions by rigidly narrowing the scope of private liability. This Article argues that an oversight approach to securities litigation reform carries distinct advantages over this narrowing approach, and ought to receive serious consideration in the ongoing policy debate.
{"title":"Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5","authors":"A. Rose","doi":"10.2139/SSRN.1096864","DOIUrl":"https://doi.org/10.2139/SSRN.1096864","url":null,"abstract":"For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle. Is private enforcement of Rule 10b-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental and neglected question demands attention today more than ever. An academic consensus has now emerged that private enforcement of Rule 10b-5 cannot be defended on compensatory grounds, at least in its most common form (a fraud-on-the-market class action brought against a non-trading issuer). That leaves the oft-cited, but under-theorized, rationale that private enforcement is a necessary supplement to the securities fraud deterrence efforts of the SEC. When this justification is critically examined, however, it proves to be highly debatable. A rich body of law and economics scholarship teaches that bounty hunter enforcement of an overbroad law, like Rule 10b-5, may lead to overdeterrence and stymie governmental efforts to set effective enforcement policy (even assuming away strike suits and the agency costs that attend class action litigation); if private enforcement is nevertheless desirable - a contestable proposition - it is because a world without it might result in even greater deviations from optimal deterrence, due to SEC budgetary constraints, inefficiency and/or capture. By carefully explicating the relative advantages and disadvantages of private Rule 10b-5 enforcement versus exclusive public enforcement, this Article reveals a new and better way to remedy the shortcomings of the Rule 10b-5 class action. It proposes that policymakers adopt an oversight approach to securities litigation reform by, for example, granting the SEC the ability to screen which Rule 10b-5 class actions may be filed, and against whom. By muting the overdeterrence threat of private litigation and placing the SEC back firmly at the helm of Rule 10b-5 enforcement policy, this approach would mitigate the primary disadvantages of private enforcement. Moreover, by preserving a private check on SEC inefficiency and capture and allowing the SEC to continue to supplement its budget with private enforcement resources, it would do so without eliminating the primary advantages of the current system. This approach stands in stark contrast to prior securities litigation reforms, which have responded to the overdeterrence threat posed by Rule 10b-5 class actions by rigidly narrowing the scope of private liability. This Article argues that an oversight approach to securities litigation reform carries distinct advantages over this narrowing approach, and ought to receive serious consideration in the ongoing policy debate.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2008-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1096864","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137975","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 this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. In developing this contextual account, Professor Lee resolves uncertainty over the constitutional basis for the ATS and shows how, even with sparse conventional sources, the original meaning of an iconic founding-era statute might be recovered.
{"title":"Safe-Conduct Theory of the Alien Tort Statute, The","authors":"Thomas H. Lee","doi":"10.2139/SSRN.687799","DOIUrl":"https://doi.org/10.2139/SSRN.687799","url":null,"abstract":"In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a \"safe conduct\" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. In developing this contextual account, Professor Lee resolves uncertainty over the constitutional basis for the ATS and shows how, even with sparse conventional sources, the original meaning of an iconic founding-era statute might be recovered.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2007-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.687799","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67800724","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}
Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists traditionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body's purpose.Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textualists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain textual meaning. Sophisticated purposivists, moreover, have posited their own "reasonable person" framework to make purposive interpretation more objective. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than policy context (evidence about the way a reasonable person solves problems). Professor Manning contends that the textualist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In contrast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpassingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process.
{"title":"What Divides Textualists from Purposivists","authors":"J. Manning","doi":"10.2139/SSRN.2849247","DOIUrl":"https://doi.org/10.2139/SSRN.2849247","url":null,"abstract":"Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists traditionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body's purpose.Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textualists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain textual meaning. Sophisticated purposivists, moreover, have posited their own \"reasonable person\" framework to make purposive interpretation more objective. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than policy context (evidence about the way a reasonable person solves problems). Professor Manning contends that the textualist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In contrast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpassingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2849247","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68386954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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