Debates over "entitlements" have lacked conceptual clarity because the term has at least six analytically distinct meanings. The psychological "entitlements" that many attack are distinct from the legalistic "entitlements" that others champion. Most importantly, however, entitlements are economic concepts. A benefit provided to all claimants meeting stated eligibility requirements can be termed a "responsive entitlement', its antithesis is a program that arbitrarily caps participation. Similarly, a program whose benefits are defined by the amount required to accomplish some specific purpose is a 'functional entitlement"; it may be juxtaposed with one providing only an arbitrary sum. The market through which public sentiments and claimants' needs govern the generosity of benefits and the number of recipients served can be described in terms offamiliar supply and demand functions. Responsive entitlements allow that market to clear. Artificially capping participation, by contrast, creates the same inefficiencies economists decry in pricecontrolled markets. Benefits lacking functional entitlements also may distort private markets. Moreover, entitlements are crucial to maintaining political transparency. Without them, programs' scope, benefits, and eligibility requirements must be described in arbitrary terms few voters can comprehend. Voters tend to assume programs are entitlements, overestimating the support available to those programs' target populations. Confusion among types of entitlements, and the complexity inherent in nonentitlements, further impedes meaningful debate. Recognizing this, some liberals have sought to avoid debate about costs by creating nonentitlements that they can slowly expand. Conversely, some opponents of means-tested programs have shifted from attacking programs' funding to dismantling responsive and functional entitlements.
{"title":"The Political Economy of Entitlement","authors":"David A. Super","doi":"10.2307/4099328","DOIUrl":"https://doi.org/10.2307/4099328","url":null,"abstract":"Debates over \"entitlements\" have lacked conceptual clarity because the term has at least six analytically distinct meanings. The psychological \"entitlements\" that many attack are distinct from the legalistic \"entitlements\" that others champion. Most importantly, however, entitlements are economic concepts. A benefit provided to all claimants meeting stated eligibility requirements can be termed a \"responsive entitlement', its antithesis is a program that arbitrarily caps participation. Similarly, a program whose benefits are defined by the amount required to accomplish some specific purpose is a 'functional entitlement\"; it may be juxtaposed with one providing only an arbitrary sum. The market through which public sentiments and claimants' needs govern the generosity of benefits and the number of recipients served can be described in terms offamiliar supply and demand functions. Responsive entitlements allow that market to clear. Artificially capping participation, by contrast, creates the same inefficiencies economists decry in pricecontrolled markets. Benefits lacking functional entitlements also may distort private markets. Moreover, entitlements are crucial to maintaining political transparency. Without them, programs' scope, benefits, and eligibility requirements must be described in arbitrary terms few voters can comprehend. Voters tend to assume programs are entitlements, overestimating the support available to those programs' target populations. Confusion among types of entitlements, and the complexity inherent in nonentitlements, further impedes meaningful debate. Recognizing this, some liberals have sought to avoid debate about costs by creating nonentitlements that they can slowly expand. Conversely, some opponents of means-tested programs have shifted from attacking programs' funding to dismantling responsive and functional entitlements.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099328","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754725","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":"Corporate Criminal Liability: Patchwork Verdicts and the Problem of Locating a Guilty Agent","authors":"Stacey Neumann Vu","doi":"10.2307/4099301","DOIUrl":"https://doi.org/10.2307/4099301","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099301","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754215","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":"The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law","authors":"Daniel Suleiman","doi":"10.2307/4099300","DOIUrl":"https://doi.org/10.2307/4099300","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099300","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754040","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 paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the "limited times" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, "exclusive rights" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.
{"title":"Intellectual Property and Constitutional Norms","authors":"Thomas B. Nachbar","doi":"10.2139/SSRN.453261","DOIUrl":"https://doi.org/10.2139/SSRN.453261","url":null,"abstract":"The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the \"limited times\" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power. Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution. Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, \"exclusive rights\" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.453261","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736082","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":"Trademark Dilution on the Constitutional Edge","authors":"B. Jacobs","doi":"10.2307/4099351","DOIUrl":"https://doi.org/10.2307/4099351","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099351","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755498","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}
Two timeless women embody the ideals of our nation. In New York Harbor, the Statue of Liberty proclaims: "Give me your tired, your poor, / Your huddled masses yearning to breathe free ... ."1 In Washington, D.C., the statue Contemplation of Justice sits solemnly before the main entrance to the Supreme Court of the United States.2 Above her head, on the building's architrave, appear the words "Equal Justice Under Law." These two promises, of opportunity and equality, have marked our nation's vision since its founding. The pledge of "equal justice under law" is a profound one, positing a judicial system free of corruption and favoritism as well as one that disdains distinctions of class and caste. The true achievement of our country has been not merely the original expression of this idea, but our willingness to expand our commitment, gradually, to include propertyless white men, former male slaves, other men of color, women of all races, people with disabilities, gay and lesbian citizens, and others within the circle originally reserved for the propertied white men who founded our nation. We began with a transcendent principle, but we have also had the humility to recognize our failings and to revise our behavior to draw closer to our ideal.
{"title":"Ruth Bader Ginsburg's Jurisprudence of Opportunity and Equality","authors":"D. J. Merritt, D. Lieberman","doi":"10.2307/4099346","DOIUrl":"https://doi.org/10.2307/4099346","url":null,"abstract":"Two timeless women embody the ideals of our nation. In New York Harbor, the Statue of Liberty proclaims: \"Give me your tired, your poor, / Your huddled masses yearning to breathe free ... .\"1 In Washington, D.C., the statue Contemplation of Justice sits solemnly before the main entrance to the Supreme Court of the United States.2 Above her head, on the building's architrave, appear the words \"Equal Justice Under Law.\" These two promises, of opportunity and equality, have marked our nation's vision since its founding. The pledge of \"equal justice under law\" is a profound one, positing a judicial system free of corruption and favoritism as well as one that disdains distinctions of class and caste. The true achievement of our country has been not merely the original expression of this idea, but our willingness to expand our commitment, gradually, to include propertyless white men, former male slaves, other men of color, women of all races, people with disabilities, gay and lesbian citizens, and others within the circle originally reserved for the propertied white men who founded our nation. We began with a transcendent principle, but we have also had the humility to recognize our failings and to revise our behavior to draw closer to our ideal.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099346","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755548","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":"Ruth Bader Ginsburg, Professor of Law","authors":"H. Kay","doi":"10.2307/4099343","DOIUrl":"https://doi.org/10.2307/4099343","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099343","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754777","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 articulates and examines one ideal for the institution of marriage - marriage as an egalitarian liberal community. Under this vision, the communal values of marriage, where spouses share with each other without reference to individual desert, are combined with a concern for non-subordination and a protection of individual autonomy, notably free exit. We argue that, contrary to the common assumption that these goals are incompatible, they can be accommodated to a remarkable degree. We then trace the implications for this vision of marriage for marital property law. We use it to defend the equal division rule of existing marital assets, as well as a broad scope for marital property, including notably both the spouses' increased (and decreased) earning capacity during the pendency of their marriage. We also discuss alimony, endorsing generally the current practice of rehabilitative alimony, and property governance, arguing for community property rules for spouses during marriage.
{"title":"Properties of Marriage","authors":"Hanoch Dagan, Carolyn J. Frantz","doi":"10.2307/4099349","DOIUrl":"https://doi.org/10.2307/4099349","url":null,"abstract":"This paper articulates and examines one ideal for the institution of marriage - marriage as an egalitarian liberal community. Under this vision, the communal values of marriage, where spouses share with each other without reference to individual desert, are combined with a concern for non-subordination and a protection of individual autonomy, notably free exit. We argue that, contrary to the common assumption that these goals are incompatible, they can be accommodated to a remarkable degree. We then trace the implications for this vision of marriage for marital property law. We use it to defend the equal division rule of existing marital assets, as well as a broad scope for marital property, including notably both the spouses' increased (and decreased) earning capacity during the pendency of their marriage. We also discuss alimony, endorsing generally the current practice of rehabilitative alimony, and property governance, arguing for community property rules for spouses during marriage.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099349","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755342","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 Supreme Court's decision in Grutter v. Bollinger,1 upholding race-conscious affirmative action in admissions to the University of Michigan Law School, is widely seen as a landmark decision for its reaffirmation ofJustice Lewis Powell's position in the Bakke case2 a quarter century ago. The Powell opinion had justified the consideration of race as one factor in a public university's admissions process designed to produce diversity in its student body for educational purposes.3 In Grutter, the Court spelled out in some detail the potential educational advantages of student diversity, including the preparation of graduates for a society and a work force that are growing more and more diverse. The opinion thus provides a grounding in social science for the advantages Justice Powell had asserted on the basis of less evidence.
最高法院在格鲁特诉博林格案(Grutter v. Bollinger)中做出的裁决，在密歇根大学法学院(University of Michigan Law School)的录取中支持种族歧视的平权法案，被广泛视为一个里程碑式的决定，因为它重申了25年前刘易斯·鲍威尔大法官(Lewis Powell)在巴克案中的立场。鲍威尔的意见证明，公立大学在招生过程中考虑种族因素是合理的，目的是为了教育目的而使学生群体多样化在格鲁特案中，最高法院详细阐述了学生多样性在教育方面的潜在优势，包括为毕业生为日益多样化的社会和劳动力做好准备。因此，该意见为鲍威尔大法官在较少证据的基础上断言的优势提供了社会科学基础。
{"title":"THE REVIVAL OF FORWARD-LOOKING AFFIRMATIVE ACTION","authors":"Kenneth L. Karst","doi":"10.2307/4099348","DOIUrl":"https://doi.org/10.2307/4099348","url":null,"abstract":"The Supreme Court's decision in Grutter v. Bollinger,1 upholding race-conscious affirmative action in admissions to the University of Michigan Law School, is widely seen as a landmark decision for its reaffirmation ofJustice Lewis Powell's position in the Bakke case2 a quarter century ago. The Powell opinion had justified the consideration of race as one factor in a public university's admissions process designed to produce diversity in its student body for educational purposes.3 In Grutter, the Court spelled out in some detail the potential educational advantages of student diversity, including the preparation of graduates for a society and a work force that are growing more and more diverse. The opinion thus provides a grounding in social science for the advantages Justice Powell had asserted on the basis of less evidence.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099348","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755713","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":"Tomorrow's Massiah: Towards a \"Prosecution Specific\" Understanding of the Sixth Amendment Right to Counsel","authors":"Michael J Howe","doi":"10.2307/4099350","DOIUrl":"https://doi.org/10.2307/4099350","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099350","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755444","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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