The federal district courts of the United States face a peculiar time crunch each time they confront a new criminal prosecution. Every year, federal judges must cope with tens of thousands of criminal cases which have become increasingly complex and time-consuming.' At the same time, the courts are procedurally constrained in terms of the amount of time they are permitted to devote to each new case. The Speedy Trial Act2 ("STA") mandates dismissal of any federal criminal case in which an indictment is not issued within thirty days of arrest or in which a trial does not begin within seventy days of indictment or arraignment. Designed by Congress to reduce recidivism and increase deterrence through the efficient administration of justice, the STA paradoxically threatens to thwart its own objectives whenever a complex and time-consuming prosecution comes before the courts. The drafters of the STA were cognizant of this danger and constructed the statute to accommodate it. Recognizing the practical need to reconcile the STA with the many unavoidable delays intrinsic to the criminal process, the drafters enumerated nine specific exclusions that toll the STA's time limits.3 Eight of the exclusions are specifically targeted to common sources of delay such as pretrial motions and joining of new codefendants. The ninth confers discretion upon judges to grant a continuance when necessary to serve the "ends of justice."4 These exclusions, espe-
{"title":"Speedy Justice and Timeless Delays: The Validity of Open-Ended \"Ends-of-Justice\" Continuances under the Speedy Trial Act","authors":"Greg Ostfeld","doi":"10.2307/1600319","DOIUrl":"https://doi.org/10.2307/1600319","url":null,"abstract":"The federal district courts of the United States face a peculiar time crunch each time they confront a new criminal prosecution. Every year, federal judges must cope with tens of thousands of criminal cases which have become increasingly complex and time-consuming.' At the same time, the courts are procedurally constrained in terms of the amount of time they are permitted to devote to each new case. The Speedy Trial Act2 (\"STA\") mandates dismissal of any federal criminal case in which an indictment is not issued within thirty days of arrest or in which a trial does not begin within seventy days of indictment or arraignment. Designed by Congress to reduce recidivism and increase deterrence through the efficient administration of justice, the STA paradoxically threatens to thwart its own objectives whenever a complex and time-consuming prosecution comes before the courts. The drafters of the STA were cognizant of this danger and constructed the statute to accommodate it. Recognizing the practical need to reconcile the STA with the many unavoidable delays intrinsic to the criminal process, the drafters enumerated nine specific exclusions that toll the STA's time limits.3 Eight of the exclusions are specifically targeted to common sources of delay such as pretrial motions and joining of new codefendants. The ninth confers discretion upon judges to grant a continuance when necessary to serve the \"ends of justice.\"4 These exclusions, espe-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"5 1","pages":"9"},"PeriodicalIF":2.0,"publicationDate":"2016-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86937688","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 provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, afford willful judges a convenient vehicle for massaging different meanings out of the same text, and make statutory interpretation unpredictable, because judges invent new canons and reject old ones to suit their changing tastes. Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges, in particular, overuse such canons.Whereas most previous studies have focused on the Rehnquist Court, this paper reconsiders the substantive canons in light of new data collected from the Roberts Court. The data show that contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court — and that, even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions. Indeed substantive canons often are referenced as an afterthought, or add-on argument supplying minimal additional support to an interpretation reached primarily through other interpretive tools. Perhaps most surprisingly, textualist Justices rarely invoke substantive canons in the opinions they author; indeed, intentionalist Justice Stevens leads the Roberts Court in references to such canons.The paper also challenges scholars’ gloomy warnings that Justices in the modern, New-Textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text. Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at slightly, or even substantially, higher rates than they referenced substantive canons. Moreover, the Court’s own precedents, followed by practical-consequences-based reasoning — rather than substantive canons or legislative history — seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text. The paper first reports the findings from my study of 295 Roberts Court cases and then explores the theoretical implications of these findings for several leading statutory interpretation theories and debates.
{"title":"Reconsidering Substantive Canons","authors":"Anita S. Krishnakumar","doi":"10.2139/SSRN.2724054","DOIUrl":"https://doi.org/10.2139/SSRN.2724054","url":null,"abstract":"This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, afford willful judges a convenient vehicle for massaging different meanings out of the same text, and make statutory interpretation unpredictable, because judges invent new canons and reject old ones to suit their changing tastes. Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges, in particular, overuse such canons.Whereas most previous studies have focused on the Rehnquist Court, this paper reconsiders the substantive canons in light of new data collected from the Roberts Court. The data show that contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court — and that, even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions. Indeed substantive canons often are referenced as an afterthought, or add-on argument supplying minimal additional support to an interpretation reached primarily through other interpretive tools. Perhaps most surprisingly, textualist Justices rarely invoke substantive canons in the opinions they author; indeed, intentionalist Justice Stevens leads the Roberts Court in references to such canons.The paper also challenges scholars’ gloomy warnings that Justices in the modern, New-Textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text. Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at slightly, or even substantially, higher rates than they referenced substantive canons. Moreover, the Court’s own precedents, followed by practical-consequences-based reasoning — rather than substantive canons or legislative history — seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text. The paper first reports the findings from my study of 295 Roberts Court cases and then explores the theoretical implications of these findings for several leading statutory interpretation theories and debates.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"45 1","pages":"825"},"PeriodicalIF":2.0,"publicationDate":"2016-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88079789","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}
Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years.
{"title":"Territoriality, Technology, and National Security","authors":"Z. Clopton","doi":"10.31228/osf.io/gcfbe","DOIUrl":"https://doi.org/10.31228/osf.io/gcfbe","url":null,"abstract":"Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"1 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73181053","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 plausibility pleading regime of Twombly and Iqbal has generated continuing controversy and concern over its effects on the ability of plaintiffs, particularly certain categories of civil rights plaintiffs, to bring cases in federal court. I assess the effects of plausibility pleading by undertaking a novel thought experiment: What would a plaintiff’s filing and pleading decisions look like in a world with no pleading standard at all? In other words, what if there were no motions to dismiss for failure to state a claim, and every filed case could reach discovery? I show that in this hypothetical world, with few exceptions plaintiffs file factually detailed, plausible complaints or do not file at all. In short, pleading standards rarely matter. Perhaps most surprisingly, this is true even for cases in which asymmetries of information favor the defendant. Plaintiffs’ attorneys, not judges, are the gatekeepers to court, and pleading practices are driven not by doctrine but by settlement strategy. This analysis generates empirical predictions, which find support in a wide range of qualitative (though hardly conclusive) evidence. Further, this thought experiment may turn the normative critique of Twombly and Iqbal on its head: plausibility pleading may advance, rather than undermine, the “liberal ethos” of the Federal Rules.
{"title":"A Fresh Look at Plausibility Pleading","authors":"William H. J. Hubbard","doi":"10.2139/SSRN.2360723","DOIUrl":"https://doi.org/10.2139/SSRN.2360723","url":null,"abstract":"The plausibility pleading regime of Twombly and Iqbal has generated continuing controversy and concern over its effects on the ability of plaintiffs, particularly certain categories of civil rights plaintiffs, to bring cases in federal court. I assess the effects of plausibility pleading by undertaking a novel thought experiment: What would a plaintiff’s filing and pleading decisions look like in a world with no pleading standard at all? In other words, what if there were no motions to dismiss for failure to state a claim, and every filed case could reach discovery? I show that in this hypothetical world, with few exceptions plaintiffs file factually detailed, plausible complaints or do not file at all. In short, pleading standards rarely matter. Perhaps most surprisingly, this is true even for cases in which asymmetries of information favor the defendant. Plaintiffs’ attorneys, not judges, are the gatekeepers to court, and pleading practices are driven not by doctrine but by settlement strategy. This analysis generates empirical predictions, which find support in a wide range of qualitative (though hardly conclusive) evidence. Further, this thought experiment may turn the normative critique of Twombly and Iqbal on its head: plausibility pleading may advance, rather than undermine, the “liberal ethos” of the Federal Rules.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"57 1","pages":"693"},"PeriodicalIF":2.0,"publicationDate":"2015-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87741466","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}
Richard Mcadams, Dhammika Dharmapala, Nuno Garoupa
Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how “police are different,” focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one’s threshold of doubt — the perceived probability of guilt at which one would search or seize a suspect. That police have a lower threshold of doubt plausibly justifies more judicial scrutiny of police searches than of nonpolice searches (as well as more-permissive rules when police perform tasks outside the scope of law enforcement). We also consider and critique Bill Stuntz’s alternative explanation of the relevant doctrine.
{"title":"The Law of Police","authors":"Richard Mcadams, Dhammika Dharmapala, Nuno Garoupa","doi":"10.2139/SSRN.2561497","DOIUrl":"https://doi.org/10.2139/SSRN.2561497","url":null,"abstract":"Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how “police are different,” focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one’s threshold of doubt — the perceived probability of guilt at which one would search or seize a suspect. That police have a lower threshold of doubt plausibly justifies more judicial scrutiny of police searches than of nonpolice searches (as well as more-permissive rules when police perform tasks outside the scope of law enforcement). We also consider and critique Bill Stuntz’s alternative explanation of the relevant doctrine.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"46 1","pages":"135-158"},"PeriodicalIF":2.0,"publicationDate":"2015-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81255626","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 essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.
这篇文章严肃地讨论了执法效率的相关性，以及经验主义在理解弗洛伊德案件中警察行为的合宪性和更普遍的城市警察行为方面的作用，并对辩论进行了一些重塑。一个关键而又模糊的问题是，最高法院在Terry v. Ohio案中阐明对拦截搜身的宪法合理性的相关检验时所采用的分析水平与今天(以及历史上)警察将拦截搜身作为一种实践的规模之间的不匹配。更简洁地说，在Terry案中，当警察有可能有理由相信一名武装人员参与犯罪时，法院授权警察干预个别事件，而实际上，拦截和搜身通常是由警察集体执行的一项计划。尽管宪法框架是建立在一次性调查事件的基础上的，但许多被拦下的人，其中大多数是有色人种的年轻男子，并没有把被拦下视为一次性事件。他们把它们当作一个程序来管理他们作为一个群体，当然，这就是现实。这正是警察机构正在做的。第四条修正案的合理性必须考虑到这一事实。我在这里就我们应该如何处理这个问题提出一个论点。
{"title":"Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident","authors":"T. Meares","doi":"10.2139/SSRN.2524930","DOIUrl":"https://doi.org/10.2139/SSRN.2524930","url":null,"abstract":"This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"21 1","pages":"7"},"PeriodicalIF":2.0,"publicationDate":"2014-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83077241","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 examines the role of lower-court precedent in the U.S. Supreme Court’s decisionmaking. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, the Article analyzes and evaluates a variety of potential reasons to give weight to lower-court precedent, including reasons related to stability, constraint, and the wisdom of crowds. To address the descriptive question, the Article examines the current Justices’ voting behavior and reasoning, over a period of several recent years, in cases in which the Court resolves splits in the lower courts. The conclusions shed light on broader debates over interpretive methodology and the Supreme Court’s role as the manager of a large judicial system.
{"title":"Following Lower-Court Precedent","authors":"A. Bruhl","doi":"10.2139/SSRN.2389198","DOIUrl":"https://doi.org/10.2139/SSRN.2389198","url":null,"abstract":"This Article examines the role of lower-court precedent in the U.S. Supreme Court’s decisionmaking. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, the Article analyzes and evaluates a variety of potential reasons to give weight to lower-court precedent, including reasons related to stability, constraint, and the wisdom of crowds. To address the descriptive question, the Article examines the current Justices’ voting behavior and reasoning, over a period of several recent years, in cases in which the Court resolves splits in the lower courts. The conclusions shed light on broader debates over interpretive methodology and the Supreme Court’s role as the manager of a large judicial system.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"29 38","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2014-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72387948","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 the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act's employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners' complicity claim at its word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee's healthcare package the "boss's business" (to borrow from the title of the Democrats' proposed bill overturning the Hobby Lobby decision). Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns Hobby Lobby raises – about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (e.g., blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (e.g., gays and lesbians) – do not turn on the organizational form the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or non-profit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially where that accommodation would impose costs on third parties?Hobby Lobby does not provide the proper guidance for answering these questions, and no wonder: As I aim to argue here, the conception of complicity pervading the treatment of conscientious objection in the law is murky and misleading, and it often yields unjust results. This Article seeks to offer the guidance that the doctrine does not. To that end, it exposes the flaws in the understandings of complicity evident in both the majority and dissenting opinions in Hobby Lobby, as well as in RFRA cases more generally. It then seeks to disaggregate the elements in a complicity claim and to identify which of these deserve to be treated deferentially. Deference, however, is not decisive. The Article’s second ambition is to expose a glaring oversight in the law's treatment of conscientious objection – viz., its failure to inquire into how a religious accommodation will affect third parties. Exemption opponents contend that the
在良心拒服兵役的典型案例中，拒服兵役者声称他的宗教禁止他积极参与错误的行为(例如，参加战争)。另一方面，在对《合理医疗费用法案》(Affordable Care Act)雇主授权的宗教挑战中，雇主声称，他们的宗教信仰禁止他们仅仅补贴员工可能犯错误的保险(例如，使用避孕措施)。对支持这些挑战的共谋的理解，比标准的法律教义或道德理论所考虑的要广泛得多。法院通常会拒绝出于良心反对为军事行动提供资金的税收，或为堕胎服务提供支持的大学学费。然而，在Hobby Lobby一案中，最高法院采纳了公司所有者的共谋主张:只要Hobby Lobby相信自己是共谋，不管它的信念有多特殊，就足以使它有资格获得豁免。通过这种方式，最高法院将雇员医疗保健计划的要素变成了“老板的事”(借用民主党提出的推翻Hobby Lobby裁决的法案的标题)。对Hobby Lobby的批评大多集中在宗教自由的企业权利问题上。然而，这个问题是转移注意力的问题。Hobby Lobby提出的更深层次的担忧——雇主现在是否可以基于宗教理由拒绝补贴其他形式的医疗保险(例如输血或接种疫苗)，或者拒绝为他们所谴责的生活方式(例如同性恋)的客户提供服务——与雇主采用的组织形式无关。相反，更重要的问题在于我们对共谋的理解:雇主(营利性或非营利性，企业或个人)何时认为自己参与了员工或客户的行为是合理的?什么时候，一个合理的共谋指控才足以令人信服地保证和解，尤其是在这种和解会给第三方带来成本的情况下?“爱好游说团”没有为回答这些问题提供适当的指导，这也难怪:正如我在这里想要论证的那样，法律中普遍存在的共犯概念是模糊和误导的，而且往往会产生不公正的结果。本文试图提供该原则所没有的指导。为此，它暴露了对同谋理解上的缺陷，无论是在Hobby Lobby案的多数意见还是反对意见中，以及在更普遍的RFRA案中，都很明显。然后，它试图分解共谋主张中的要素，并确定哪些要素应该得到尊重。然而，顺从并不是决定性的。该条款的第二个目标是揭露法律在处理出于良心拒服兵役方面的一个明显疏忽——即未能调查宗教和解将如何影响第三方。反对豁免的人认为，法律已经要求进行这样的调查。他们错了。在文章的最后，我提出了一个经过修订的平衡测试——它反映了对反对者的利害关系的更细致的把握，同时为第三方带来了更公正的结果。
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Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.
{"title":"Following the Script: Narratives of Suspicion in Terry Stops in Street Policing","authors":"J. Fagan, A. Geller","doi":"10.7916/D8JW8DZH","DOIUrl":"https://doi.org/10.7916/D8JW8DZH","url":null,"abstract":"Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"37 1","pages":"51-88"},"PeriodicalIF":2.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85464071","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, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.
近年来，美国最重要的监管法院——美国哥伦比亚特区巡回上诉法院(United States court of Appeals for the District of Columbia Circuit)的几位法官催生了自由主义行政法，其形式是一系列法官制定的原则，旨在保护私人秩序不受国家监管的干扰。这些原则包括不授权原则、保护商业言论、管理解释规则的程序、任意性审查、地位和可审查性。对于那些相信罗斯福新政和现代监管国家存在基本宪法缺陷的人来说，自由意志主义行政法可以被视为次优选择，一些相关法官公开辩称。作为一个整体，自由意志主义行政法与同一法院在20世纪70年代创立的那种进步行政法相似，而最高法院在佛蒙特州扬基案中一致否决了这种渐进式行政法。它应该会遭遇类似的命运。下个任期将要判决的两个案件为最高法院提供了一个否定自由主义行政法的机会。
{"title":"Libertarian Administrative Law","authors":"C. Sunstein, Adrian Vermeule","doi":"10.2139/SSRN.2460822","DOIUrl":"https://doi.org/10.2139/SSRN.2460822","url":null,"abstract":"In recent years, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"12 1","pages":"14"},"PeriodicalIF":2.0,"publicationDate":"2014-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87200276","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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