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":"112 1","pages":"991-1054"},"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":"111 1","pages":"939-1003"},"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}
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":"111 1","pages":"1601-1639"},"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":"1 1","pages":""},"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":"110 1","pages":"452-478"},"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":"537 1","pages":"318"},"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":"109 1","pages":"237-308"},"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":"106 1","pages":"1955-2022"},"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":"108 1","pages":"1758"},"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":"108 1","pages":""},"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}
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