Despite thousands of gun deaths annually, the United States has failed to reach consensus on any means of addressing the public health crisis that is gun violence. The issue has become politically polarized, constitutionalized, and an object of pessimism and despair. We propose a regulatory system in which gun manufacturers would be strictly liable to a federal fund for deaths caused by their guns, paired with a subsidy that will serve to ensure the availability of guns sufficient to meet the rights the Supreme Court has found in the Second Amendment. While strict liability of this kind can indeed serve its traditional purposes of spreading costs and incentivizing better designs and processes, our primary goal is to alter the political economy around the issue of gun violence more generally. If manufacturers bear an increasing share of the costs created by their products, they will endeavor not only to produce products and advertise them in ways likely to reduce those costs but also to advocate for regulations that may do the same. While our proposal may not depolarize the issue entirely, it at least attempts to focus the minds and experience of those who know guns best on effective means of reducing guns’ social costs.
{"title":"The Gun Subsidy","authors":"C. Turner, Justin C. Van Orsdol","doi":"10.2139/ssrn.3537278","DOIUrl":"https://doi.org/10.2139/ssrn.3537278","url":null,"abstract":"Despite thousands of gun deaths annually, the United States has failed to reach consensus on any means of addressing the public health crisis that is gun violence. The issue has become politically polarized, constitutionalized, and an object of pessimism and despair. We propose a regulatory system in which gun manufacturers would be strictly liable to a federal fund for deaths caused by their guns, paired with a subsidy that will serve to ensure the availability of guns sufficient to meet the rights the Supreme Court has found in the Second Amendment. While strict liability of this kind can indeed serve its traditional purposes of spreading costs and incentivizing better designs and processes, our primary goal is to alter the political economy around the issue of gun violence more generally. If manufacturers bear an increasing share of the costs created by their products, they will endeavor not only to produce products and advertise them in ways likely to reduce those costs but also to advocate for regulations that may do the same. While our proposal may not depolarize the issue entirely, it at least attempts to focus the minds and experience of those who know guns best on effective means of reducing guns’ social costs.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"68 1","pages":"1117"},"PeriodicalIF":0.5,"publicationDate":"2020-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41579976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates the function and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition tax as joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any other longstanding and obsolescing tax principle. Recommending that Congress seize the Tax Cuts and Jobs Act moment and discard the general rule deferring the inclusion of gain in income through a realization requirement in favor of the annual marking to market of all the taxpayer’s property, the article models a general mark to market transition tax after the new transition tax on deferred foreign income. The proposal recommends inclusion of the net gain in taxpayers’ incomes at significantly reduced rates of tax, including one rate for liquid assets and a lower rate for illiquid assets and an opportunity to pay the tax in installments. Following the initial inclusion under this transition tax, gain and loss would be included annually consistent with comprehensive tax base definitions under an accrual system of taxation based on marking to market. Growth or decline in the value of taxpayers’ property would be taken into account income annually. In some instances permitting some taxpayers to defer payment of the tax until disposition of the property may be desirable but the continued deferral might incur an interest charge.
2017年的《减税和就业法案》(Tax Cuts and Jobs Act)对长达31年的未分配累积企业收入征收了一项税收，即“过渡税”。本文重点关注过渡税，因为它评估了税收的功能和合宪性，并考虑过渡税是否可以作为解决美国更广泛的递延收入问题的模型。本文认为，过渡税与移居税和其他按市场计价的规定一样，放弃了实现原则具有持续活力的任何借口，因为它比任何其他长期存在和过时的税收原则都更有说服力。建议国会抓住减税和就业法案的时机，放弃通过实现要求推迟纳入收入收益的一般规则，转而支持所有纳税人财产的年度市值计价，文章在递延外国收入的新过渡税之后建立了一般市值计价过渡税。该提案建议将净收益纳入纳税人收入，并大幅降低税率，包括对流动资产实行统一税率，对非流动资产实行较低税率，并提供分期纳税的机会。在最初纳入这种过渡税之后，利得和损失将按照以市场计价的权责发生制税制下的综合税基定义每年纳入。纳税人财产价值的增长或下降将被计入每年的收入。在某些情况下，允许一些纳税人推迟支付税款，直到财产处置可能是可取的，但继续推迟可能会产生利息费用。
{"title":"Abandoning Realization and the Transition Tax: Toward a Comprehensive Tax Base","authors":"Henry Ordower","doi":"10.2139/SSRN.3273098","DOIUrl":"https://doi.org/10.2139/SSRN.3273098","url":null,"abstract":"The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates the function and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition tax as joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any other longstanding and obsolescing tax principle. Recommending that Congress seize the Tax Cuts and Jobs Act moment and discard the general rule deferring the inclusion of gain in income through a realization requirement in favor of the annual marking to market of all the taxpayer’s property, the article models a general mark to market transition tax after the new transition tax on deferred foreign income. The proposal recommends inclusion of the net gain in taxpayers’ incomes at significantly reduced rates of tax, including one rate for liquid assets and a lower rate for illiquid assets and an opportunity to pay the tax in installments. Following the initial inclusion under this transition tax, gain and loss would be included annually consistent with comprehensive tax base definitions under an accrual system of taxation based on marking to market. Growth or decline in the value of taxpayers’ property would be taken into account income annually. In some instances permitting some taxpayers to defer payment of the tax until disposition of the property may be desirable but the continued deferral might incur an interest charge.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"67 1","pages":"1371"},"PeriodicalIF":0.5,"publicationDate":"2019-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42456954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating or applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. It would be even more useful if it had helped that law-giver to think about how to pin things down.This better top-level distinction lies between binary and scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. Binary/scalar is a superior distinction for analysis. First, binary/scalar is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver’s pinning down the law-applier, and thus enables the tools’ deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another—and offers a route to retrieving control in the application of any law that has to be expressed as a scalar directive.Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of “irreparable harm,” but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges’ discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test, which tries to state alternative c
{"title":"Rules, Standards, and Such","authors":"K. Clermont","doi":"10.31228/osf.io/n2kx3","DOIUrl":"https://doi.org/10.31228/osf.io/n2kx3","url":null,"abstract":"This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image. A clearer distinction would be useful in formulating or applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. It would be even more useful if it had helped that law-giver to think about how to pin things down.This better top-level distinction lies between binary and scalar directives. If the directive comprises a checklist of one or more yes/no conditions, then it is a binary directive. If instead the directive calls for consideration of multivalent factors, it is a scalar directive. Binary/scalar is a superior distinction for analysis. First, binary/scalar is a clean distinction. Second, it is a telling distinction that represents a significant difference between the components that compose the law. Third, it tells the law-applier much about whether the law-giver tried to pin things down. Fourth, it conveys a better sense of the tools at hand for the law-giver’s pinning down the law-applier, and thus enables the tools’ deployment in an optimal way. Fifth, it allows the drawing of meaningful subdivisions that bring to the fore the choices in shaping that law: for example, one such subtype of scalar directives is a true balancing test, which explicitly or implicitly presents an exhaustive listing of quantifiable and commensurable considerations to be scaled and weighed against one another—and offers a route to retrieving control in the application of any law that has to be expressed as a scalar directive.Parenthetically, a running example to illustrate the superiority of binary/scalar comes from injunctive relief. The test for a temporary restraining order was the supposedly binary condition of “irreparable harm,” but it has disintegrated in practice to the prevailing test for a preliminary injunction. The diversity among the tests for preliminary injunctions reveals the essential struggle between the necessary flexibility for infinitely variable situations and the need for appropriately corralling the judges’ discretion. From ancient roots of unrestrained discretion, the test for a preliminary injunction has evolved in recent decades from a sequential test of four supposedly binary conditions to the indefiniteness of a sliding-scale approach that balances the so-called four factors, back to a hopeless stab at crispness in the form of the alternatives test, which tries to state alternative c","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"68 1","pages":"751"},"PeriodicalIF":0.5,"publicationDate":"2019-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42167819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one’s health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one’s health depended on one’s digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting the question be studied seriously.
{"title":"What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea","authors":"Dan Priel","doi":"10.2139/SSRN.2982716","DOIUrl":"https://doi.org/10.2139/SSRN.2982716","url":null,"abstract":"According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one’s health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one’s health depended on one’s digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting the question be studied seriously.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"68 1","pages":"899"},"PeriodicalIF":0.5,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43095234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The enclosed article offers a new understanding of the history of American legal thought. I developed this interpretation over twenty years as I read into the early twentieth century literature in jurisprudence. The conventional view holds that the Progressive Movement (1905-1923) and the Realist Movement (1923-1941) combined forces to attack and ultimately undermine Classical Legal Thought (1870-1920’s). Any differences between the progressives and the realists are seen as minor as compared with their joint effort to undermine Classical Thought. After reading the original literature I came to realize this standard approach is seriously flawed and a source of endless confusion in contemporary legal thought. Legal Realism was primarily a critique of progressive thought. Although the realists continued to assail the formalism of Classical Thought, their work is interesting and important because of their attack on the progressives. This attack was linked to a cognitive relativism in legal realism that parallels the profound changes in science and the arts in the 1920’s and 30’s. For example, an article from 1927 in an American Bar Association journal makes the following point: “[T]he old cosmic absolutes – absolute space, absolute time, absolute matter, absolute natural law, absolute truth – are gone. The reign of relativity . . . is destined to work a corresponding revolution, deep, noiseless it may be, but inevitable, in all the views and institutions of man.” This article also traces the genealogy of balancing. With the collapse of Classical Legal Thought, balancing became the predominant method of legal reasoning. The progressives and the realists held radically different views of balancing but, unfortunately, both used the same terms and it requires careful reading to untangle this history. The article distinguishes a teleological view of balancing, dominant in the progressive era and still the prevailing approach, and an attack on teleological balancing which the article calls “conflicting considerations.” One of the confusions in contemporary thought is the failure to recognize these two types of balancing. Many lawyers, judges, and scholars see only teleological balancing and fail to recognize the importance of the realists’ contribution to policy analysis.
{"title":"Re-Reading Legal Realism and Tracing a Genealogy of Balancing","authors":"Curtis Nyquist","doi":"10.2139/SSRN.2934539","DOIUrl":"https://doi.org/10.2139/SSRN.2934539","url":null,"abstract":"The enclosed article offers a new understanding of the history of American legal thought. I developed this interpretation over twenty years as I read into the early twentieth century literature in jurisprudence. The conventional view holds that the Progressive Movement (1905-1923) and the Realist Movement (1923-1941) combined forces to attack and ultimately undermine Classical Legal Thought (1870-1920’s). Any differences between the progressives and the realists are seen as minor as compared with their joint effort to undermine Classical Thought. After reading the original literature I came to realize this standard approach is seriously flawed and a source of endless confusion in contemporary legal thought. \u0000Legal Realism was primarily a critique of progressive thought. Although the realists continued to assail the formalism of Classical Thought, their work is interesting and important because of their attack on the progressives. This attack was linked to a cognitive relativism in legal realism that parallels the profound changes in science and the arts in the 1920’s and 30’s. For example, an article from 1927 in an American Bar Association journal makes the following point: “[T]he old cosmic absolutes – absolute space, absolute time, absolute matter, absolute natural law, absolute truth – are gone. The reign of relativity . . . is destined to work a corresponding revolution, deep, noiseless it may be, but inevitable, in all the views and institutions of man.” \u0000This article also traces the genealogy of balancing. With the collapse of Classical Legal Thought, balancing became the predominant method of legal reasoning. The progressives and the realists held radically different views of balancing but, unfortunately, both used the same terms and it requires careful reading to untangle this history. The article distinguishes a teleological view of balancing, dominant in the progressive era and still the prevailing approach, and an attack on teleological balancing which the article calls “conflicting considerations.” One of the confusions in contemporary thought is the failure to recognize these two types of balancing. Many lawyers, judges, and scholars see only teleological balancing and fail to recognize the importance of the realists’ contribution to policy analysis.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"65 1","pages":"771"},"PeriodicalIF":0.5,"publicationDate":"2017-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44357293","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This short essay is my contribution to a conference on “opportunities for law’s intellectual history,” which took place at SUNY Buffalo Law School in the fall of 2014. The essay offers a friendly criticism of what I perceive to be a trend in legal history. In particular, it criticizes legal historians’ seemingly increasing reluctance to offer causal explanations of past events or current practices. While recognizing the empirical and conceptual difficulties that beset any effort to identify “causes” of historical events, I argue that legal history cannot effectively serve the critical function many historians hope for it without making controversial judgments about historical causation in particular cases. The bulk of the essay is devoted to identifying and analyzing four potentially critical types of history: Impeaching Accounts, Genealogies, Stories, and Restorative Projects. My aim in discussing each type is to show that critical histories that purport to remain agnostic as to the driving causal factors at work in the historical phenomena under examination are either insufficiently critical, insufficiently historical, or both.
{"title":"Causation, Legal History, and Legal Doctrine","authors":"Charles L. Barzun","doi":"10.2139/SSRN.2714005","DOIUrl":"https://doi.org/10.2139/SSRN.2714005","url":null,"abstract":"This short essay is my contribution to a conference on “opportunities for law’s intellectual history,” which took place at SUNY Buffalo Law School in the fall of 2014. The essay offers a friendly criticism of what I perceive to be a trend in legal history. In particular, it criticizes legal historians’ seemingly increasing reluctance to offer causal explanations of past events or current practices. While recognizing the empirical and conceptual difficulties that beset any effort to identify “causes” of historical events, I argue that legal history cannot effectively serve the critical function many historians hope for it without making controversial judgments about historical causation in particular cases. The bulk of the essay is devoted to identifying and analyzing four potentially critical types of history: Impeaching Accounts, Genealogies, Stories, and Restorative Projects. My aim in discussing each type is to show that critical histories that purport to remain agnostic as to the driving causal factors at work in the historical phenomena under examination are either insufficiently critical, insufficiently historical, or both.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"64 1","pages":"81"},"PeriodicalIF":0.5,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68268010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While the ubiquity of lawyers in U.S. electoral politics is well known, there has been almost no research on how their prevalence has changed over time, why these changes might have occurred, or the consequences of any such shift. This article helps address these gaps. Using a unique data set that extends over two hundred years of the occupational background of members of the U.S. Congress, it confirms widespread perceptions that lawyers have long dominated Congress. However, it also finds that this dominance is in slow, but steady, retreat. In the mid-19th century almost 80% of members were lawyers. By the 1960s this had dropped to under 60%, and by 2015 it was less than 40%. The article puts forward a set of arguments about why lawyers have traditionally had such success in U.S. electoral politics, including their affinity for lawmaking, the politicization of the U.S. justice system, and advantages in terms of career flexibility and access to resources. It claims lawyers’ electoral decline is largely the result of changes within the legal profession as well as new electoral competition, particularly from an emerging professionalized political class comprised of political aides and members of civil society that have made politics a career. The article argues lawyers’ prevalence in Congress has had at least three effects. First, it has impacted Congressional outcomes. While lawyer legislators generally have similar voting records as other members, evidence is presented here for the first time that members of the House of Representatives who are lawyers have been more likely to support the funding of civil legal aid, potentially pointing to a larger set of behavioral differences between lawyer and non-lawyer legislators, especially in their approach to policies related to the legal system. Second, law, as a “gateway” occupation into politics, has affected Congressional diversity. The article presents new evidence that lawyer members of Congress have historically been less likely to be women, indicating that the hurdles women have faced in law have possibly reduced their representation in Congress. Third, lawyers’ prevalence in Congress has impacted the legal profession and the larger legal system. Lawyers’ decline in Congress, and politics more generally, has likely reduced the number of politically oriented students who enter law and contributed to perceptions that the profession has become less civic-minded. The even more precipitous decline in Congress of former judges may be helping depoliticize the judiciary even more quickly than the bar. The article concludes by claiming that law schools and the profession need to more actively address diversity challenges as well as provide better training in leadership if they want lawyers to remain central to and be as positive a force as possible in electoral politics in the United States.
{"title":"The Decline of the Lawyer Politician","authors":"N. Robinson","doi":"10.2139/SSRN.2684731","DOIUrl":"https://doi.org/10.2139/SSRN.2684731","url":null,"abstract":"While the ubiquity of lawyers in U.S. electoral politics is well known, there has been almost no research on how their prevalence has changed over time, why these changes might have occurred, or the consequences of any such shift. This article helps address these gaps. Using a unique data set that extends over two hundred years of the occupational background of members of the U.S. Congress, it confirms widespread perceptions that lawyers have long dominated Congress. However, it also finds that this dominance is in slow, but steady, retreat. In the mid-19th century almost 80% of members were lawyers. By the 1960s this had dropped to under 60%, and by 2015 it was less than 40%. The article puts forward a set of arguments about why lawyers have traditionally had such success in U.S. electoral politics, including their affinity for lawmaking, the politicization of the U.S. justice system, and advantages in terms of career flexibility and access to resources. It claims lawyers’ electoral decline is largely the result of changes within the legal profession as well as new electoral competition, particularly from an emerging professionalized political class comprised of political aides and members of civil society that have made politics a career. The article argues lawyers’ prevalence in Congress has had at least three effects. First, it has impacted Congressional outcomes. While lawyer legislators generally have similar voting records as other members, evidence is presented here for the first time that members of the House of Representatives who are lawyers have been more likely to support the funding of civil legal aid, potentially pointing to a larger set of behavioral differences between lawyer and non-lawyer legislators, especially in their approach to policies related to the legal system. Second, law, as a “gateway” occupation into politics, has affected Congressional diversity. The article presents new evidence that lawyer members of Congress have historically been less likely to be women, indicating that the hurdles women have faced in law have possibly reduced their representation in Congress. Third, lawyers’ prevalence in Congress has impacted the legal profession and the larger legal system. Lawyers’ decline in Congress, and politics more generally, has likely reduced the number of politically oriented students who enter law and contributed to perceptions that the profession has become less civic-minded. The even more precipitous decline in Congress of former judges may be helping depoliticize the judiciary even more quickly than the bar. The article concludes by claiming that law schools and the profession need to more actively address diversity challenges as well as provide better training in leadership if they want lawyers to remain central to and be as positive a force as possible in electoral politics in the United States.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"65 1","pages":"657"},"PeriodicalIF":0.5,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2684731","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional. The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing non-retroactive constitutional rulings as it recognized new criminal constitutional rights. But the Burger and Rehnquist Courts rejected non-retroactivity. Instead, they enforced forfeiture rules and significantly broadened the reach of remedy-limiting doctrines such as qualified immunity, harmless error, and exceptions to the exclusionary rule. The Roberts Court has continued in the same vein. Unfortunately, however, the Court’s shift away from non-retroactivity has been unaccompanied by any trans-substantive account of when and how courts may withhold constitutional remedies. As a consequence, influential commentators have charged the Court with inconsistency; they say that it is incoherent to discard non-retroactivity while expanding doctrines that accomplish the same thing. These commentators have called for a revival of non-retroactivity doctrine to enable more constitutional innovation. This paper argues against reviving non-retroactivity doctrine and proposes a functional framework for evaluating when and how courts may withhold constitutional remedies. The proposal differentiates between substitutionary remedies addressed to wholly concluded constitutional wrongs, which courts sometimes may withhold, and specific remedies addressed to ongoing violations, which are obligatory. The proposal rationalizes the Court’s recent remedial practices in constitutional adjudication, permits a context-specific balancing of remedial interests in cases where such a balancing is appropriate, and accounts for separation-of-powers and federalism concerns. It thus provides concrete guidance on when courts may withhold constitutional remedies and when they may not. It also respects Article III limits on judicial power — limits that non-retroactivity doctrines exceed.
{"title":"Remedial Discretion in Constitutional Adjudication","authors":"John M. Greabe","doi":"10.2139/SSRN.2305629","DOIUrl":"https://doi.org/10.2139/SSRN.2305629","url":null,"abstract":"Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional. The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing non-retroactive constitutional rulings as it recognized new criminal constitutional rights. But the Burger and Rehnquist Courts rejected non-retroactivity. Instead, they enforced forfeiture rules and significantly broadened the reach of remedy-limiting doctrines such as qualified immunity, harmless error, and exceptions to the exclusionary rule. The Roberts Court has continued in the same vein. Unfortunately, however, the Court’s shift away from non-retroactivity has been unaccompanied by any trans-substantive account of when and how courts may withhold constitutional remedies. As a consequence, influential commentators have charged the Court with inconsistency; they say that it is incoherent to discard non-retroactivity while expanding doctrines that accomplish the same thing. These commentators have called for a revival of non-retroactivity doctrine to enable more constitutional innovation. This paper argues against reviving non-retroactivity doctrine and proposes a functional framework for evaluating when and how courts may withhold constitutional remedies. The proposal differentiates between substitutionary remedies addressed to wholly concluded constitutional wrongs, which courts sometimes may withhold, and specific remedies addressed to ongoing violations, which are obligatory. The proposal rationalizes the Court’s recent remedial practices in constitutional adjudication, permits a context-specific balancing of remedial interests in cases where such a balancing is appropriate, and accounts for separation-of-powers and federalism concerns. It thus provides concrete guidance on when courts may withhold constitutional remedies and when they may not. It also respects Article III limits on judicial power — limits that non-retroactivity doctrines exceed.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"62 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2014-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2305629","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68081130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The longstanding debate over the political versus judicial safeguards of federalism has paid insufficient attention to the role presidential politics might play in promoting state policy-making autonomy. In certain circumstances, the President may be better positioned than either the courts or Congress to be politically sensitive to state policy initiatives and to create the flexibilities in federal law necessary to accommodate them. A powerful example of this dynamic is presented by the problem of state marijuana legalization. A sharp policy conflict has arisen between the federal Controlled Substances Act, which purports to impose a zero-tolerance regime on marijuana distribution and use, and state laws permitting distribution and use of marijuana for medical and, more recently, recreational purposes. While the courts and Congress have played virtually no role in permitting such state policy experiments to go forward, the Obama administration's low key approach toward enforcing the CSA's marijuana ban in marijuana legalization states has created space for state level policy experiments. The article argues that the Obama administration's position reflects political sensitivity to the policy preferences of a small number of marijuana legalization states that play an outsized role in presidential "electoral math." The marijuana legalization example provides strong evidence that presidential politics can be a significant political safeguard of federalism where a grouping of "swing states" has a salient policy preference that is inconsistent with a well-supported national policy alternative in an era of close presidential elections.
{"title":"Presidential Politics as a Safeguard of Federalism: The Case of Marijuana Legalization","authors":"David S. Schwartz","doi":"10.2139/SSRN.2326688","DOIUrl":"https://doi.org/10.2139/SSRN.2326688","url":null,"abstract":"The longstanding debate over the political versus judicial safeguards of federalism has paid insufficient attention to the role presidential politics might play in promoting state policy-making autonomy. In certain circumstances, the President may be better positioned than either the courts or Congress to be politically sensitive to state policy initiatives and to create the flexibilities in federal law necessary to accommodate them. A powerful example of this dynamic is presented by the problem of state marijuana legalization. A sharp policy conflict has arisen between the federal Controlled Substances Act, which purports to impose a zero-tolerance regime on marijuana distribution and use, and state laws permitting distribution and use of marijuana for medical and, more recently, recreational purposes. While the courts and Congress have played virtually no role in permitting such state policy experiments to go forward, the Obama administration's low key approach toward enforcing the CSA's marijuana ban in marijuana legalization states has created space for state level policy experiments. The article argues that the Obama administration's position reflects political sensitivity to the policy preferences of a small number of marijuana legalization states that play an outsized role in presidential \"electoral math.\" The marijuana legalization example provides strong evidence that presidential politics can be a significant political safeguard of federalism where a grouping of \"swing states\" has a salient policy preference that is inconsistent with a well-supported national policy alternative in an era of close presidential elections.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"62 1","pages":"599"},"PeriodicalIF":0.5,"publicationDate":"2013-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2326688","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68106448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent empirical research, including my own, has exposed a previously overlooked behavior: instances in which people constrain themselves from doing something that they want to do because they believe a norm obligates them to do so, even though the norm in question does not, on a straightforward reading, contain such an obligation. I label this phenomenon “Norm Supercompliance.” Simply put, Supercompliers treat soft norms as if they are hard norms. For example, one who grudgingly complies with an aspirational norm, such as “a lawyer should aspire to render at least 50 hours of pro bono service per year” on the belief that it states an obligation is a Supercomplier. There is a vast literature in which authors assert that norms in legal contexts that possess certain weak or soft qualities — “soft laws” — do not deserve legal status because such norms fail to make a practical difference to the deliberation of those subject to them. This assertion unduly ignores or undervalues Supercompliance; as those engaging in it experience considerable changes in their decision-making when they follow soft law. While it is easy to write off Supercompliance as a self-defeating or masochistic mistake, it has the capacity to benefit those engaging in it, allowing them to reap the same rewards that come from accepting legal obligation under ordinary circumstances. In this Article, I set forth the elements of Supercompliance in detail, provide examples from the empirical literature in which those elements have been satisfied, and discuss the theoretical and practical implications thereof. In particular, I focus on how the discovery of this behavior might weaken arguments in support of Exclusive Legal Positivism. Illuminating the value of Supercompliance and, in turn, soft law, will give legislators a better sense of the tools at their disposal that can bring about improved behavior. It will help them build better legal norms.
{"title":"Norm Supercompliance and the Status of Soft Law","authors":"Brian Sheppard","doi":"10.2139/SSRN.2319557","DOIUrl":"https://doi.org/10.2139/SSRN.2319557","url":null,"abstract":"Recent empirical research, including my own, has exposed a previously overlooked behavior: instances in which people constrain themselves from doing something that they want to do because they believe a norm obligates them to do so, even though the norm in question does not, on a straightforward reading, contain such an obligation. I label this phenomenon “Norm Supercompliance.” Simply put, Supercompliers treat soft norms as if they are hard norms. For example, one who grudgingly complies with an aspirational norm, such as “a lawyer should aspire to render at least 50 hours of pro bono service per year” on the belief that it states an obligation is a Supercomplier. There is a vast literature in which authors assert that norms in legal contexts that possess certain weak or soft qualities — “soft laws” — do not deserve legal status because such norms fail to make a practical difference to the deliberation of those subject to them. This assertion unduly ignores or undervalues Supercompliance; as those engaging in it experience considerable changes in their decision-making when they follow soft law. While it is easy to write off Supercompliance as a self-defeating or masochistic mistake, it has the capacity to benefit those engaging in it, allowing them to reap the same rewards that come from accepting legal obligation under ordinary circumstances. In this Article, I set forth the elements of Supercompliance in detail, provide examples from the empirical literature in which those elements have been satisfied, and discuss the theoretical and practical implications thereof. In particular, I focus on how the discovery of this behavior might weaken arguments in support of Exclusive Legal Positivism. Illuminating the value of Supercompliance and, in turn, soft law, will give legislators a better sense of the tools at their disposal that can bring about improved behavior. It will help them build better legal norms.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"62 1","pages":"787"},"PeriodicalIF":0.5,"publicationDate":"2013-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68100116","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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