In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction. This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes. The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would be one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
{"title":"Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures","authors":"L. Weinberger","doi":"10.2139/ssrn.3574692","DOIUrl":"https://doi.org/10.2139/ssrn.3574692","url":null,"abstract":"In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction. \u0000 \u0000This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes. \u0000 \u0000The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would be one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"31 1","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2020-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80298820","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}
What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence (AI) systems increasingly integrate into our society, they will do bad things. They have already killed people. These new technologies present a number of interesting substantive law questions, from predictability, to transparency, to liability for high stakes decision making in complex computational systems. Our focus here is different. We seek to explore what remedies the law can and should provide once a robot has caused harm. Where substantive law defines who wins legal disputes, remedies law asks, “What do I get when I win?” Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. For instance, the law will often act to deprive a defendant of its gains even if the result is a windfall to the plaintiff, because we think it is unfair to let defendants keep those gains. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful. Each of these goals of remedies law, however, runs into difficulties when the bad actor in question is neither a person nor a corporation but a robot. We might order a robot—or, more realistically, the designer or owner of the robot—to pay for the damages it causes. (Though, as we will see, even that presents some surprisingly thorny problems.) But it turns out to be much harder for a judge to “order” a robot, rather than a human, to engage in or refrain from certain conduct . Robots can’t directly obey court orders not written in computer code. And bridging the translation gap between natural language and code is often harder than we might expect. This is particularly true of modern AI techniques that empower machines to learn and modify their decision making over time. If we don’t know how the robot “thinks,” we won’t know how to tell it to behave in a way likely to cause it to do what we actually want it to do. Moreover, if the ultimate goal of a legal remedy is to encourage good behavior or discourage bad behavior, punishing owners or designers for the behavior of their robots may not always make sense—if only for the simple reason that their owners didn’t act wrongfully in any meaningful way. The same problem affects injunctive relief. Courts are used to ordering people and companies to do (or stop doing) certain things, with a penalty of contempt of court for noncompliance. But ordering a robot to abstain from certain behavior won’t be trivial in many cases. And ordering it to take affirmative acts may prove even more problematic. In this paper, we begin to think about how we might design a system of remedies for robots. It may, for example, make sense to focus less of our doctrinal attention on moral guilt and more of it on no-fault liability systems (or at lea
{"title":"Remedies for Robots","authors":"Mark A. Lemley, B. Casey","doi":"10.2139/SSRN.3223621","DOIUrl":"https://doi.org/10.2139/SSRN.3223621","url":null,"abstract":"What happens when artificially intelligent robots misbehave? The question is not just hypothetical. As robotics and artificial intelligence (AI) systems increasingly integrate into our society, they will do bad things. They have already killed people. \u0000 \u0000These new technologies present a number of interesting substantive law questions, from predictability, to transparency, to liability for high stakes decision making in complex computational systems. Our focus here is different. We seek to explore what remedies the law can and should provide once a robot has caused harm. \u0000 \u0000Where substantive law defines who wins legal disputes, remedies law asks, “What do I get when I win?” Remedies are sometimes designed to make plaintiffs whole by restoring them to the condition they would have been in “but for” the wrong. But they can also contain elements of moral judgment, punishment, and deterrence. For instance, the law will often act to deprive a defendant of its gains even if the result is a windfall to the plaintiff, because we think it is unfair to let defendants keep those gains. In other instances, the law may order defendants to do (or stop doing) something unlawful or harmful. \u0000 \u0000Each of these goals of remedies law, however, runs into difficulties when the bad actor in question is neither a person nor a corporation but a robot. We might order a robot—or, more realistically, the designer or owner of the robot—to pay for the damages it causes. (Though, as we will see, even that presents some surprisingly thorny problems.) But it turns out to be much harder for a judge to “order” a robot, rather than a human, to engage in or refrain from certain conduct . Robots can’t directly obey court orders not written in computer code. And bridging the translation gap between natural language and code is often harder than we might expect. This is particularly true of modern AI techniques that empower machines to learn and modify their decision making over time. If we don’t know how the robot “thinks,” we won’t know how to tell it to behave in a way likely to cause it to do what we actually want it to do. \u0000 \u0000Moreover, if the ultimate goal of a legal remedy is to encourage good behavior or discourage bad behavior, punishing owners or designers for the behavior of their robots may not always make sense—if only for the simple reason that their owners didn’t act wrongfully in any meaningful way. The same problem affects injunctive relief. Courts are used to ordering people and companies to do (or stop doing) certain things, with a penalty of contempt of court for noncompliance. But ordering a robot to abstain from certain behavior won’t be trivial in many cases. And ordering it to take affirmative acts may prove even more problematic. \u0000 \u0000In this paper, we begin to think about how we might design a system of remedies for robots. It may, for example, make sense to focus less of our doctrinal attention on moral guilt and more of it on no-fault liability systems (or at lea","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"76 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2018-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91290917","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, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider who in the personalization debate. Specifically, I identify the policy consideration that bear on the optimal maker or enforcer of personalized law. To put it another way, my essay begins where most of the prior literature leaves off: having concluded that personalized law has some merit in a given area, I ask when the state should facilitate personalized lawmaking by non-state actors.
{"title":"Privatizing Personalized Law","authors":"Andrew Verstein","doi":"10.2139/SSRN.3206834","DOIUrl":"https://doi.org/10.2139/SSRN.3206834","url":null,"abstract":"In recent years, scholars have devoted increasing attention to the prospect of personalized law. The bulk of the literature has so far concerned whether to personalize any law and, if so, what substantive changes should be instantiated through personalization. Comparatively little discussion has gone to the authorship personalized laws. Who will make personalized laws? Who will enforce them? In this Essay, I propose we consider who in the personalization debate. Specifically, I identify the policy consideration that bear on the optimal maker or enforcer of personalized law. To put it another way, my essay begins where most of the prior literature leaves off: having concluded that personalized law has some merit in a given area, I ask when the state should facilitate personalized lawmaking by non-state actors.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"48 1","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2018-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88915224","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}
Under the leadership of Chief Justice William Rehnquist, the Supreme Court of the United States has generally been minimalist, in the sense that it has attempted to say no more than is necessary to decide the case at hand, without venturing anything large or ambitious.' To some extent, the Court's minimalism appears to have been a product of some of the justices' conception of the appropriately limited role of the judiciary in American political life. To some extent, the tendency toward minimalism has been a product of the simple need to assemble a majority vote. If five or more votes are sought, the opinion might well tend in the direction of minimalism, reflecting judgments and commitments that can command agreement from diverse people. To be sure, the Court has been willing, on occasion, to be extremely aggressive. In a number of cases, the Court has asserted its own, highly contestable vision of the Constitution against the democratic process. This aggressive strand has been most evident in a set of decisions involving federalism; it can be found elsewhere as well.' But generally these decisions have been minimalist too. Notwithstanding their aggressiveness, they tend to decide the case at hand, without making many commitments for the future. Sometimes those decisions have even been "subminimalist," in the sense that they have said less
{"title":"Order Without Law","authors":"C. Sunstein","doi":"10.2307/1600401","DOIUrl":"https://doi.org/10.2307/1600401","url":null,"abstract":"Under the leadership of Chief Justice William Rehnquist, the Supreme Court of the United States has generally been minimalist, in the sense that it has attempted to say no more than is necessary to decide the case at hand, without venturing anything large or ambitious.' To some extent, the Court's minimalism appears to have been a product of some of the justices' conception of the appropriately limited role of the judiciary in American political life. To some extent, the tendency toward minimalism has been a product of the simple need to assemble a majority vote. If five or more votes are sought, the opinion might well tend in the direction of minimalism, reflecting judgments and commitments that can command agreement from diverse people. To be sure, the Court has been willing, on occasion, to be extremely aggressive. In a number of cases, the Court has asserted its own, highly contestable vision of the Constitution against the democratic process. This aggressive strand has been most evident in a set of decisions involving federalism; it can be found elsewhere as well.' But generally these decisions have been minimalist too. Notwithstanding their aggressiveness, they tend to decide the case at hand, without making many commitments for the future. Sometimes those decisions have even been \"subminimalist,\" in the sense that they have said less","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"27 1","pages":"757"},"PeriodicalIF":2.0,"publicationDate":"2017-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74001195","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}
Pub Date : 2017-09-01DOI: 10.7758/9781610448765.16
S. Issacharoff
Barely a quarter century after the collapse of the Soviet empire, it is democracy that has entered an intense period of public scrutiny. The election of President Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by the distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today may unseat the victors in a new round of electoral challenge. At issue across the nuances of the national settings is a deep challenge to the core claim of democracy to be the superior form of political organization of civilized peoples. This Article roots the current democratic malaise not so much in the outcome of any particular election but in four central institutional challenges, each one a compromise of how democracy was consolidated over the past few centuries. The four are: first, the accelerated decline of political parties and other institutional forms of popular engagement; second, the paralysis of the legislative branches; third, the loss of a sense of social cohesion; and fourth, the decline in state competence. While there are no doubt other candidates for inducing anxiety over the state of democracy, these four have a particular salience in theories of democratic superiority that make their decline or loss a matter of grave concern. Among the great defenses of democracy stand the claims that democracies offer the superior form of participation, of deliberation, of solidarity, and of the capacity to get the job done. We need not arbitrate among the theories of participatory democracy, deliberative democracy, solidaristic democracy, or epistemic democratic superiority. Rather, we should note with concern that each of these theories states a claim for the advantages of democracy, and each faces worrisome disrepair.
{"title":"Democracy’s Deficits","authors":"S. Issacharoff","doi":"10.7758/9781610448765.16","DOIUrl":"https://doi.org/10.7758/9781610448765.16","url":null,"abstract":"Barely a quarter century after the collapse of the Soviet empire, it is democracy that has entered an intense period of public scrutiny. The election of President Trump and the Brexit vote are dramatic moments in a populist uprising against the postwar political consensus of liberal rule. But they are also signposts in a process long in the making, yet perhaps not fully appreciated until the intense electoral upheavals of recent years. The current moment is defined by the distrust of the institutional order of democracy and, more fundamentally, of the idea that there is a tomorrow and that the losers of today may unseat the victors in a new round of electoral challenge. At issue across the nuances of the national settings is a deep challenge to the core claim of democracy to be the superior form of political organization of civilized peoples. \u0000This Article roots the current democratic malaise not so much in the outcome of any particular election but in four central institutional challenges, each one a compromise of how democracy was consolidated over the past few centuries. The four are: first, the accelerated decline of political parties and other institutional forms of popular engagement; second, the paralysis of the legislative branches; third, the loss of a sense of social cohesion; and fourth, the decline in state competence. While there are no doubt other candidates for inducing anxiety over the state of democracy, these four have a particular salience in theories of democratic superiority that make their decline or loss a matter of grave concern. Among the great defenses of democracy stand the claims that democracies offer the superior form of participation, of deliberation, of solidarity, and of the capacity to get the job done. We need not arbitrate among the theories of participatory democracy, deliberative democracy, solidaristic democracy, or epistemic democratic superiority. Rather, we should note with concern that each of these theories states a claim for the advantages of democracy, and each faces worrisome disrepair.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"12 1","pages":"4"},"PeriodicalIF":2.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80491460","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}
Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.
{"title":"The Concepts of Law","authors":"Thomas B. Ginsburg, N. Stephanopoulos","doi":"10.4324/9781315573298","DOIUrl":"https://doi.org/10.4324/9781315573298","url":null,"abstract":"Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"15 1","pages":"147"},"PeriodicalIF":2.0,"publicationDate":"2017-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88168010","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}
Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives — which this Article brands “customer-based incentives” — offer tax relief to a firm’s customers rather than directly to the firm. The puzzle underling customer-based incentives is that tax relief provided to the firm’s customers would seem more difficult for the firm to capture than relief provided directly to the firm — strange, as a state’s primary goal is to subsidize the firm’s investment in the state.After examining the emergence of this new form of incentive, this Article offers a novel explanation for their use and potential for success. Specifically, it argues that the effects of predictable consumer biases, particularly with respect to the salience of the tax relief provided by the incentives to consumers, cause customer-based incentives to differ substantively from traditional incentives in ways that are beneficial to both firms and states. Customer-based incentives thus present an example of how taxpayer behavior can influence the substantive effects of tax provisions, even causing two provisions with the same substantive goal to differ on the ground. Taking these behavioral effects into account provides opportunities to increase the effectiveness of tax provisions.
{"title":"The Unexpected Role of Tax Salience in State Competition for Businesses","authors":"H. Holderness","doi":"10.2139/SSRN.2843567","DOIUrl":"https://doi.org/10.2139/SSRN.2843567","url":null,"abstract":"Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives — which this Article brands “customer-based incentives” — offer tax relief to a firm’s customers rather than directly to the firm. The puzzle underling customer-based incentives is that tax relief provided to the firm’s customers would seem more difficult for the firm to capture than relief provided directly to the firm — strange, as a state’s primary goal is to subsidize the firm’s investment in the state.After examining the emergence of this new form of incentive, this Article offers a novel explanation for their use and potential for success. Specifically, it argues that the effects of predictable consumer biases, particularly with respect to the salience of the tax relief provided by the incentives to consumers, cause customer-based incentives to differ substantively from traditional incentives in ways that are beneficial to both firms and states. Customer-based incentives thus present an example of how taxpayer behavior can influence the substantive effects of tax provisions, even causing two provisions with the same substantive goal to differ on the ground. Taking these behavioral effects into account provides opportunities to increase the effectiveness of tax provisions.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"53 1","pages":"1091"},"PeriodicalIF":2.0,"publicationDate":"2016-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84212805","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 democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously anti-democratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these rollback laws. A main reason for this struggle has been the judicial unwillingness to tackle directly the transparently partisan motives underlying these legislative cutbacks in voting opportunities. This judicial difficulty with curtailing excessive partisanship stems from an attempt to rely on equal protection as the relevant constitutional standard for judicial review of election laws. Invocation of equal protection is understandable given the initial success of Warren Court precedents, like Reynolds v. Sims and Harper v. Virginia Board of Elections, in using equal protection to protect equal voting rights. But as the courts have subsequently discovered, equal protection is ill-suited to the problems of gerrymander or legislation that cuts back voting opportunities for all voters. This Article offers a previously undeveloped alternative to equal protection: due process. In a wide range of areas, including civil and criminal procedure, the Supreme Court has long recognized that due process encompasses a principle of fair play. This fair play principle, well understood to apply in society to athletic competition, is suitable in the domain of politics for constraining excessive partisanship in electoral competition. In fact, the history of the Fourteenth Amendment’s ratification reveals that this fair play principle played an essential role in constraining excessive partisanship that threatened to destabilize the Republic at the time the amendment’s ratification was under consideration in Congress. Once the significance of this history is recognized, the Fourteenth Amendment’s due process clause is properly construed as constraining partisan overreaching that currently threatens to undermine American democracy. In this way, the federal judiciary appropriately can invoke due process to directly redress excessive partisanship in the form of gerrymandering or rollbacks in voting opportunities.
{"title":"Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws","authors":"E. Foley","doi":"10.2139/SSRN.2815892","DOIUrl":"https://doi.org/10.2139/SSRN.2815892","url":null,"abstract":"American democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously anti-democratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these rollback laws. A main reason for this struggle has been the judicial unwillingness to tackle directly the transparently partisan motives underlying these legislative cutbacks in voting opportunities. This judicial difficulty with curtailing excessive partisanship stems from an attempt to rely on equal protection as the relevant constitutional standard for judicial review of election laws. Invocation of equal protection is understandable given the initial success of Warren Court precedents, like Reynolds v. Sims and Harper v. Virginia Board of Elections, in using equal protection to protect equal voting rights. But as the courts have subsequently discovered, equal protection is ill-suited to the problems of gerrymander or legislation that cuts back voting opportunities for all voters. This Article offers a previously undeveloped alternative to equal protection: due process. In a wide range of areas, including civil and criminal procedure, the Supreme Court has long recognized that due process encompasses a principle of fair play. This fair play principle, well understood to apply in society to athletic competition, is suitable in the domain of politics for constraining excessive partisanship in electoral competition. In fact, the history of the Fourteenth Amendment’s ratification reveals that this fair play principle played an essential role in constraining excessive partisanship that threatened to destabilize the Republic at the time the amendment’s ratification was under consideration in Congress. Once the significance of this history is recognized, the Fourteenth Amendment’s due process clause is properly construed as constraining partisan overreaching that currently threatens to undermine American democracy. In this way, the federal judiciary appropriately can invoke due process to directly redress excessive partisanship in the form of gerrymandering or rollbacks in voting opportunities.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"34 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73908110","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}
Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims to its masterful use of comparative case studies from around the globe. However, we also have questions about the ability of the theory to hang together in a unified manner and to do the work assigned to it.
{"title":"Courts of Good and Ill Repute: Garoupa and Ginsburg's Judicial Reputation: A Comparative Theory","authors":"Tracey E. George, G. Gulati","doi":"10.2139/SSRN.2783433","DOIUrl":"https://doi.org/10.2139/SSRN.2783433","url":null,"abstract":"Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims to its masterful use of comparative case studies from around the globe. However, we also have questions about the ability of the theory to hang together in a unified manner and to do the work assigned to it.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"18 1","pages":"1683-1715"},"PeriodicalIF":2.0,"publicationDate":"2016-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78910610","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 more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."
{"title":"The Unbearable Rightness of Auer","authors":"C. Sunstein, Adrian Vermeule","doi":"10.2139/SSRN.2716737","DOIUrl":"https://doi.org/10.2139/SSRN.2716737","url":null,"abstract":"For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call \"the sign fallacy.\"","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"43 1","pages":"14"},"PeriodicalIF":2.0,"publicationDate":"2016-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79403880","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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