Individuals in common pools-employees in firms, shareholders in firms, individuals in insurance plans, and citizens in a jurisdiction - want the managers of those common pools to act paternalistically toward other individuals, because this lowers the costs of being in the pool. The nanny state, which bans smoking in public places and imposes innumerable sin taxes, and the nanny corporation, which is starting to force employees to be more healthy, are simply responding to this demand. These two can thought of as competing in the "market for paternalism" to deliver paternalism to individuals that demand it. Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules - the state or the firm - is the most efficient supplier of paternalism. This essay describes numerous reasons why corporate nannies are superior to their state analogs in some cases. For instance, corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching but also helps solve information problems in ways likely to reduce the sum of decision and error costs. There is, however, no theory under which the state or firm will always be superior at imposing nanny limitations on behavior. Because of this, we might expect firms to supply nanny rules when it is efficient for them to do so, say because of better monitoring, lower agency costs, or the like, and not to do so when government rules could be supplied at lower cost for a given efficacy level. The problem, however, is that there are government rules, regulations, statutes, constitutional provisions, and case law that may distort the market from efficiency. This essay makes the case for corporate nannyism and shows how government regulation may be biased without justification in favor of the nanny state.
{"title":"The Nanny Corporation","authors":"M. Henderson","doi":"10.2139/SSRN.1348235","DOIUrl":"https://doi.org/10.2139/SSRN.1348235","url":null,"abstract":"Individuals in common pools-employees in firms, shareholders in firms, individuals in insurance plans, and citizens in a jurisdiction - want the managers of those common pools to act paternalistically toward other individuals, because this lowers the costs of being in the pool. The nanny state, which bans smoking in public places and imposes innumerable sin taxes, and the nanny corporation, which is starting to force employees to be more healthy, are simply responding to this demand. These two can thought of as competing in the \"market for paternalism\" to deliver paternalism to individuals that demand it. Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules - the state or the firm - is the most efficient supplier of paternalism. This essay describes numerous reasons why corporate nannies are superior to their state analogs in some cases. For instance, corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching but also helps solve information problems in ways likely to reduce the sum of decision and error costs. There is, however, no theory under which the state or firm will always be superior at imposing nanny limitations on behavior. Because of this, we might expect firms to supply nanny rules when it is efficient for them to do so, say because of better monitoring, lower agency costs, or the like, and not to do so when government rules could be supplied at lower cost for a given efficacy level. The problem, however, is that there are government rules, regulations, statutes, constitutional provisions, and case law that may distort the market from efficiency. This essay makes the case for corporate nannyism and shows how government regulation may be biased without justification in favor of the nanny state.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"14 1","pages":"1517-1612"},"PeriodicalIF":2.0,"publicationDate":"2009-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89382231","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}
Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways. For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarian for men, which means it does nothing to unsettle the most robust aspect of our current marital naming conventions - the fact that men almost never change their names, even to hyphenate. This fact about men's names - coupled with the fact that children almost always have their father's name, even if their mother makes an unconventional naming choice for herself - means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premarital selves) or with their future (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women. Informally, legal institutions also shape choices through desk-clerk law, that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actors frequently mislead people and discourage unconventional naming choices as a result of ignorance or their own views about proper practice. Because states historically reinforced a regime of patrilineal descent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to encourage more egalitarian decisions about whether to change names and how. States could try any number of creative solutions using existing categories for thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don't speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a forced choosing approach, requiring both spouses to state their postmarital names. More ambitiously, states might encourage hyphenation and, at the next generation, biphenation - defined as the passing of one name from each hyphenated parent - by making this the default option. States could also create what might be called framing rules, which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives
{"title":"Changing Name Changing: Framing Rules and the Future of Marital Names","authors":"Elizabeth F. Emens","doi":"10.7916/D8Z0385D","DOIUrl":"https://doi.org/10.7916/D8Z0385D","url":null,"abstract":"Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways. For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarian for men, which means it does nothing to unsettle the most robust aspect of our current marital naming conventions - the fact that men almost never change their names, even to hyphenate. This fact about men's names - coupled with the fact that children almost always have their father's name, even if their mother makes an unconventional naming choice for herself - means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premarital selves) or with their future (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women. Informally, legal institutions also shape choices through desk-clerk law, that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actors frequently mislead people and discourage unconventional naming choices as a result of ignorance or their own views about proper practice. Because states historically reinforced a regime of patrilineal descent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to encourage more egalitarian decisions about whether to change names and how. States could try any number of creative solutions using existing categories for thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don't speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a forced choosing approach, requiring both spouses to state their postmarital names. More ambitiously, states might encourage hyphenation and, at the next generation, biphenation - defined as the passing of one name from each hyphenated parent - by making this the default option. States could also create what might be called framing rules, which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives ","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"32 1","pages":"763-863"},"PeriodicalIF":2.0,"publicationDate":"2008-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78097129","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}
A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true. Proposition 1: Freedom of speech is not subject to political revision. Proposition 2: Within broad limits, property entitlements are subject to political revision. Proposition 3: The freedom of speech does not include the right to use another person's property in order to convey one's message Proposition 4: All speech requires the use of some property. These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another's property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision. This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court's decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.
现代言论与财产法的核心矛盾在于此。这个矛盾被四个命题抓住了，它们都被广泛接受，但不可能都是真的。命题1:言论自由不受政治修改。提案2:在广泛的范围内，财产权利受到政治修改。命题3:言论自由不包括使用他人财产来传达自己信息的权利命题4:所有言论都需要使用某些财产。这四种主张是不能调和的。如果包括大多数财产权在内的经济权利确实会受到政治修正，如果确实没有权利使用他人的财产进行言论，如果确实言论需要财产，那么言论权利也不可能不受政治修正的影响。本文以最高法院对美国童子军诉戴尔案(Boy Scouts of America v. Dale)的判决为中心，探讨了这个简单但令人费解的三段论的后果。它的结论是，在财产法和言论法的交叉点上，最高法院的原则存在矛盾，这使得我们的言论和财产制度都不像最初看起来那么稳定。
{"title":"The Dale Problem: Property and Speech Under the Regulatory State","authors":"Louis Michael Seidman","doi":"10.2139/ssrn.1082114","DOIUrl":"https://doi.org/10.2139/ssrn.1082114","url":null,"abstract":"A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true. \u0000Proposition 1: Freedom of speech is not subject to political revision. \u0000Proposition 2: Within broad limits, property entitlements are subject to political revision. \u0000Proposition 3: The freedom of speech does not include the right to use another person's property in order to convey one's message \u0000Proposition 4: All speech requires the use of some property. \u0000These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another's property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision. \u0000This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court's decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"22 1","pages":"5"},"PeriodicalIF":2.0,"publicationDate":"2008-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85090926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent empirical scholarship that shows that judges decide cases in a manner that is consistent with their political biases has motivated a stream of proposals for reform, including judicial term limits, limitations on judicial review of statutes and agency actions, revision of the judicial appointments process, and mandatory mixed party representation on judicial panels. However, these proposals incorrectly assume that judicial bias is necessarily harmful, and do not fully consider the costs to other values even when reduction of judicial bias is justified. To evaluate proposals for reform, one needs a theory of judicial review, one that explains how bias and other characteristics of judicial behavior result in socially good or bad outcomes. This paper supplies such a theory, drawing on rational-choice accounts of the role of the judiciary in the legislative process. It argues that judicial bias is not harmful in a broad range of circumstances, and that the merits of the reform proposals depend on many factors, including, among others, the degree of supermajoritarianism of the legislative process, the magnitude of legislative bargaining costs, judicial competence, and the extent to which the judicial appointments process and party competition result in an ideologically diverse judiciary.
{"title":"Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform","authors":"E. Posner","doi":"10.2139/SSRN.1082055","DOIUrl":"https://doi.org/10.2139/SSRN.1082055","url":null,"abstract":"Recent empirical scholarship that shows that judges decide cases in a manner that is consistent with their political biases has motivated a stream of proposals for reform, including judicial term limits, limitations on judicial review of statutes and agency actions, revision of the judicial appointments process, and mandatory mixed party representation on judicial panels. However, these proposals incorrectly assume that judicial bias is necessarily harmful, and do not fully consider the costs to other values even when reduction of judicial bias is justified. To evaluate proposals for reform, one needs a theory of judicial review, one that explains how bias and other characteristics of judicial behavior result in socially good or bad outcomes. This paper supplies such a theory, drawing on rational-choice accounts of the role of the judiciary in the legislative process. It argues that judicial bias is not harmful in a broad range of circumstances, and that the merits of the reform proposals depend on many factors, including, among others, the degree of supermajoritarianism of the legislative process, the magnitude of legislative bargaining costs, judicial competence, and the extent to which the judicial appointments process and party competition result in an ideologically diverse judiciary.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"6 1","pages":"853"},"PeriodicalIF":2.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79697313","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 Real World of Arbitrariness Review (q.v.) supplements Professors Miles and Sunsteins' valuable empirical analysis of federal court of appeals Chevron decisions, with a similar analysis of merits review of EPA and NLRB actions they associate with the Court's contemporary decision in State Farm. Their analysis shows political patterns that are perhaps not surprising; one should perhaps celebrate the evidence of effective moderation on mixed panels, although doubting whether measures intended to produce such panels might tend more to legitimize than to cure the politicization of judging. This brief responsive essay begins by setting out a framework for understanding Chevron, State Farm and other recent standard-of-review cases (e.g., Mead Corp.). The whole issue, it argues, is one of allocation: differentiating those issues that courts must decide for themselves, from those their process of decision leads them to conclude have been validly committed to the care of others, subject to residual judicial oversight. The oversight function, and consequently both State Farm and the second step of Chevron analysis, is governed by the statute controlling judicial review of administrative action (5 USC 706) and the constitutional imperatives underlying delegation concerns. Seen in this light, it is suggested, these cases are considerably less troublesome and complicated than commonly appears from the literature. Turning to the Miles-Sunstein data, the paper questions whether it suggests any causal relation from Chevron and/or State Farm, as results like these could presumably be found in NLRB cases (the bulk of their present data set) for the decades prior to the mid-80's decisions in those two cases. NLRB cases, moreover, do not entail State Farm review in the usual sense. One particular concern of this paper is that easing up on State Farm hard look review, an apparent recommendation from their analysis, would further diminish the influence of those within the administration who care about well reasoned and scientifically supported analysis over those who are more disposed to bend science in the interest of politics. Not knowing how reviewing panels will be constituted, agencies facing hard look must prepare for rigorous review of movement in either conservative or liberal directions; free of that prospect, they would lose this incentive and science could be more readily bent. If it is so that politics inevitably has some influence on judging, it hardly follows that relief from judging somewhat distorted by this influence will produce better administrative judgment, rather than more effective acts of political will.
{"title":"Overseers or 'The Deciders': The Courts in Administrative Law","authors":"P. Strauss","doi":"10.7916/D8862GC2","DOIUrl":"https://doi.org/10.7916/D8862GC2","url":null,"abstract":"The Real World of Arbitrariness Review (q.v.) supplements Professors Miles and Sunsteins' valuable empirical analysis of federal court of appeals Chevron decisions, with a similar analysis of merits review of EPA and NLRB actions they associate with the Court's contemporary decision in State Farm. Their analysis shows political patterns that are perhaps not surprising; one should perhaps celebrate the evidence of effective moderation on mixed panels, although doubting whether measures intended to produce such panels might tend more to legitimize than to cure the politicization of judging. This brief responsive essay begins by setting out a framework for understanding Chevron, State Farm and other recent standard-of-review cases (e.g., Mead Corp.). The whole issue, it argues, is one of allocation: differentiating those issues that courts must decide for themselves, from those their process of decision leads them to conclude have been validly committed to the care of others, subject to residual judicial oversight. The oversight function, and consequently both State Farm and the second step of Chevron analysis, is governed by the statute controlling judicial review of administrative action (5 USC 706) and the constitutional imperatives underlying delegation concerns. Seen in this light, it is suggested, these cases are considerably less troublesome and complicated than commonly appears from the literature. Turning to the Miles-Sunstein data, the paper questions whether it suggests any causal relation from Chevron and/or State Farm, as results like these could presumably be found in NLRB cases (the bulk of their present data set) for the decades prior to the mid-80's decisions in those two cases. NLRB cases, moreover, do not entail State Farm review in the usual sense. One particular concern of this paper is that easing up on State Farm hard look review, an apparent recommendation from their analysis, would further diminish the influence of those within the administration who care about well reasoned and scientifically supported analysis over those who are more disposed to bend science in the interest of politics. Not knowing how reviewing panels will be constituted, agencies facing hard look must prepare for rigorous review of movement in either conservative or liberal directions; free of that prospect, they would lose this incentive and science could be more readily bent. If it is so that politics inevitably has some influence on judging, it hardly follows that relief from judging somewhat distorted by this influence will produce better administrative judgment, rather than more effective acts of political will.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"55 1","pages":"815-829"},"PeriodicalIF":2.0,"publicationDate":"2007-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82320018","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}
Since the 1970s, there has been a tremendous growth in government regulation pertaining to risk and the environment. These efforts have emerged quite legitimately because market processes alone cannot fully address risk-related concerns.' Without some kind of regulation or liability, for example, firms lack appropriate incentives to restrict their pollution. Similarly, when products or activities are extremely risky, if people are not cognizant of the risks they face, the firms generating the hazards may not have adequate incentives to issue warnings. To solve these problems, regulatory agencies have mounted a wide variety of efforts to improve the quality of the air we breathe, the water we drink, the products we use, and the workplaces where we toil. Notwithstanding the legitimate impetus for these regulatory activities, government agencies sometimes overstep their bounds. The presence of market failure creates a potential role for government action, but this action must be well conceived. A clearly misguided and unduly burdensome regulation certainly would not be in society's best interest even if it were intended to address a legitimate social problem. As in other policy contexts, the task is to structure regulatory efforts to promote society's welfare as effectively as possible. The importance of this task stems from the need to ensure that the substantial overall cost of regulatory policies is justified. Estimates suggest that total annual regulatory costs are in the vicinity of $400 to $500 billion.2 Of this amount, approximately $100 billion comprises transfers that do not create a net efficien-
{"title":"Regulating the regulators","authors":"W. Viscusi","doi":"10.2307/1600278","DOIUrl":"https://doi.org/10.2307/1600278","url":null,"abstract":"Since the 1970s, there has been a tremendous growth in government regulation pertaining to risk and the environment. These efforts have emerged quite legitimately because market processes alone cannot fully address risk-related concerns.' Without some kind of regulation or liability, for example, firms lack appropriate incentives to restrict their pollution. Similarly, when products or activities are extremely risky, if people are not cognizant of the risks they face, the firms generating the hazards may not have adequate incentives to issue warnings. To solve these problems, regulatory agencies have mounted a wide variety of efforts to improve the quality of the air we breathe, the water we drink, the products we use, and the workplaces where we toil. Notwithstanding the legitimate impetus for these regulatory activities, government agencies sometimes overstep their bounds. The presence of market failure creates a potential role for government action, but this action must be well conceived. A clearly misguided and unduly burdensome regulation certainly would not be in society's best interest even if it were intended to address a legitimate social problem. As in other policy contexts, the task is to structure regulatory efforts to promote society's welfare as effectively as possible. The importance of this task stems from the need to ensure that the substantial overall cost of regulatory policies is justified. Estimates suggest that total annual regulatory costs are in the vicinity of $400 to $500 billion.2 Of this amount, approximately $100 billion comprises transfers that do not create a net efficien-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"30 1","pages":"883 - 883"},"PeriodicalIF":2.0,"publicationDate":"2007-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85956251","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 offers case studies of three emergency statutes, all dealing with terrorism and all enacted within less than a year after a major terrorist attack: the September 14, 2001 Authorization to Use Military Force; the USA PATRIOT Act; and the U.K. Terrorism Act 2006. A standard worry about such cases is that the circumstances of emergency lawmaking produce blank-check delegations to the executive. The fog of uncertainty, emotions such as urgency and visceral fear, and the tendency of legislators and the public to rally 'round the flag, all cause legislators to vote the executive massive new powers, regardless of whether those powers are rationally justifiable. This view is descriptively and theoretically flawed. Descriptively, executives in all three episodes lost control of the political dynamics, faced bipartisan resistance or rebellion in the legislature, and ended up obtaining far less than they asked for or desired. Theoretically, emergency conditions have cross-cutting political effects on legislators. The mechanisms and forces operative during emergency lawmaking cut both ways, constraining as well as empowering the executive, with unpredictable net results in particular cases. Although executives usually receive new powers in emergencies, there is no reason to think that they systematically tend to receive more new authority than a rational legislature would provide.
{"title":"Emergency Lawmaking After 9/11 and 7/7","authors":"Adrian Vermeule","doi":"10.2139/SSRN.1019542","DOIUrl":"https://doi.org/10.2139/SSRN.1019542","url":null,"abstract":"This essay offers case studies of three emergency statutes, all dealing with terrorism and all enacted within less than a year after a major terrorist attack: the September 14, 2001 Authorization to Use Military Force; the USA PATRIOT Act; and the U.K. Terrorism Act 2006. A standard worry about such cases is that the circumstances of emergency lawmaking produce blank-check delegations to the executive. The fog of uncertainty, emotions such as urgency and visceral fear, and the tendency of legislators and the public to rally 'round the flag, all cause legislators to vote the executive massive new powers, regardless of whether those powers are rationally justifiable. This view is descriptively and theoretically flawed. Descriptively, executives in all three episodes lost control of the political dynamics, faced bipartisan resistance or rebellion in the legislature, and ended up obtaining far less than they asked for or desired. Theoretically, emergency conditions have cross-cutting political effects on legislators. The mechanisms and forces operative during emergency lawmaking cut both ways, constraining as well as empowering the executive, with unpredictable net results in particular cases. Although executives usually receive new powers in emergencies, there is no reason to think that they systematically tend to receive more new authority than a rational legislature would provide.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"61 5 1","pages":"5"},"PeriodicalIF":2.0,"publicationDate":"2007-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89059486","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 doctrine of primary jurisdiction applies when a claim is originally cognizable in the courts but involves issues that fall within the special competence of an administrative agency. Under the doctrine, a court can stay litigation and refer such issues to the agency for its decision.' Primary jurisdiction is a cousin of better known abstention doctrines that permit (and sometimes require) federal courts to abstain from addressing issues cognizable by state courts or state agencies.2 The essential difference between primary jurisdiction and these other forms of abstention is that primary jurisdiction furthers comity between federal courts and federal agencies rather than federal courts and state institutions. As the Supreme Court has explained, "[n]o fixed formula exists for applying the doctrine of primary jurisdiction."3 When a federal district court decides if an agency has primary jurisdiction over an issue, it must ask "whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation."' One thing is certain: every grant of primary jurisdiction requires district courts to first interpret enabling statutes and then exercise judicial discretion. Because the propriety of primary jurisdiction includes legal and discretionary considerations, circuit courts face the difficult task of deciding whether to review primary jurisdiction decisions de novo or for abuse of discretion. Statutory interpretation is a matter of law and therefore reviewed de novo. Decisions that turn on the discretion of a trial court are reviewed for an abuse of discretion.
{"title":"The Primary Jurisdiction Two-Step","authors":"Bryson Santaguida","doi":"10.2307/20141869","DOIUrl":"https://doi.org/10.2307/20141869","url":null,"abstract":"The doctrine of primary jurisdiction applies when a claim is originally cognizable in the courts but involves issues that fall within the special competence of an administrative agency. Under the doctrine, a court can stay litigation and refer such issues to the agency for its decision.' Primary jurisdiction is a cousin of better known abstention doctrines that permit (and sometimes require) federal courts to abstain from addressing issues cognizable by state courts or state agencies.2 The essential difference between primary jurisdiction and these other forms of abstention is that primary jurisdiction furthers comity between federal courts and federal agencies rather than federal courts and state institutions. As the Supreme Court has explained, \"[n]o fixed formula exists for applying the doctrine of primary jurisdiction.\"3 When a federal district court decides if an agency has primary jurisdiction over an issue, it must ask \"whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.\"' One thing is certain: every grant of primary jurisdiction requires district courts to first interpret enabling statutes and then exercise judicial discretion. Because the propriety of primary jurisdiction includes legal and discretionary considerations, circuit courts face the difficult task of deciding whether to review primary jurisdiction decisions de novo or for abuse of discretion. Statutory interpretation is a matter of law and therefore reviewed de novo. Decisions that turn on the discretion of a trial court are reviewed for an abuse of discretion.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"88 1","pages":"11"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73520878","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}
One of the most challenging problems in legal scholarship is the measurement of attorney ability. Measuring attorney ability presents inherent challenges because the nonrandom pairing of attorney and client in most cases makes it difficult, if not impossible, to distinguish between attorney ability and case selection. Las Vegas felony case data, provided by the Clark County Office of the Public Defender in Nevada, offer a unique opportunity to compare attorney performance. The office assigns its incoming felony cases randomly among its pool of attorneys, thereby creating a natural experiment free from selection bias. We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year. While we find no statistical difference based on law school attended or gender, we find evidence that the public defender’s race correlates with sentence length, with Hispanic attorneys obtaining sentences that were up to 26 percent shorter on average than those obtained by black or white attorneys. We also find evidence suggesting that differences in sentencing may be driven partly by different plea bargaining behavior on the part of the public defenders.
{"title":"The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability","authors":"David S. Abrams, Albert H. Yoon","doi":"10.2307/20141859","DOIUrl":"https://doi.org/10.2307/20141859","url":null,"abstract":"One of the most challenging problems in legal scholarship is the measurement of attorney ability. Measuring attorney ability presents inherent challenges because the nonrandom pairing of attorney and client in most cases makes it difficult, if not impossible, to distinguish between attorney ability and case selection. Las Vegas felony case data, provided by the Clark County Office of the Public Defender in Nevada, offer a unique opportunity to compare attorney performance. The office assigns its incoming felony cases randomly among its pool of attorneys, thereby creating a natural experiment free from selection bias. We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year. While we find no statistical difference based on law school attended or gender, we find evidence that the public defender’s race correlates with sentence length, with Hispanic attorneys obtaining sentences that were up to 26 percent shorter on average than those obtained by black or white attorneys. We also find evidence suggesting that differences in sentencing may be driven partly by different plea bargaining behavior on the part of the public defenders.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"25 1","pages":"1"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91187813","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 at least thirty-eight years, the circuit courts of appeals have been split over the proper standard of review for a trial court's distinc tion of debt from equity.1 Whether a financial disbursement counts as debt or equity is material to the tax treatment it receives. Underlying this split are two central disagreements. One is academic?whether the debt/equity distinction is ultimately a legal or factual determina tion. The other is practical?whether deferential or independent re view will strike the right balance between decisionmaking accuracy and costs. Courts commonly consider three options for standard of review: clearly erroneous, abuse of discretion, and de novo. But on this issue, the circuits are split four ways, with different circuits advocating for the three principal standards as well as a hybrid utilizing both clearly erroneous and de novo review. The inquiry is complex and dynamic, and clear resolution is needed.2 Courts of appeals have been resolving debt/equity cases for over fifty years. But the dust has not yet settled?just last year the Third Circuit formally adopted its position, joining the majority of circuits in classifying the question as factual and the review as for
{"title":"The Case for Reviewing Debt/Equity Determinations for Abuse of Discretion","authors":"N. Christensen","doi":"10.2307/20141863","DOIUrl":"https://doi.org/10.2307/20141863","url":null,"abstract":"For at least thirty-eight years, the circuit courts of appeals have been split over the proper standard of review for a trial court's distinc tion of debt from equity.1 Whether a financial disbursement counts as debt or equity is material to the tax treatment it receives. Underlying this split are two central disagreements. One is academic?whether the debt/equity distinction is ultimately a legal or factual determina tion. The other is practical?whether deferential or independent re view will strike the right balance between decisionmaking accuracy and costs. Courts commonly consider three options for standard of review: clearly erroneous, abuse of discretion, and de novo. But on this issue, the circuits are split four ways, with different circuits advocating for the three principal standards as well as a hybrid utilizing both clearly erroneous and de novo review. The inquiry is complex and dynamic, and clear resolution is needed.2 Courts of appeals have been resolving debt/equity cases for over fifty years. But the dust has not yet settled?just last year the Third Circuit formally adopted its position, joining the majority of circuits in classifying the question as factual and the review as for","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"100 1","pages":"5"},"PeriodicalIF":2.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77578713","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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