This Essay examines the ways in which the Supreme Court’s October 2021 Term challenges core theoretical commitments of progressive constitutional theory. Progressive constitutional theory originated in the progressive political theory of the late nineteenth and early twentieth centuries. Accordingly, progressive constitutional theory shares progressive political theory’s commitments to two propositions: rationalism and individualism. These commitments lead to an understanding of history as moving in a particular direction—one that is generally in line with progressive ideology. The originalist and traditionalist approaches of the Court’s October 2021 decisions call into question the progressive confidence in the direction of history while simultaneously rejecting the rationalistic and individualistic premises of progressivism. This helps explain why many progressive constitutional theorists have found the Court’s decisions so disorienting and confounding. The October 2021 Term challenged—even though it did not definitively refute—the progressive narrative of constitutional redemption through history. The implications of the Court’s decisions will reverberate through American constitutional theory for decades to come.
{"title":"The October 2021 Term and the Challenge to Progressive Constitutional Theory","authors":"","doi":"10.59015/wlr.kxzh1904","DOIUrl":"https://doi.org/10.59015/wlr.kxzh1904","url":null,"abstract":"This Essay examines the ways in which the Supreme Court’s October 2021 Term challenges core theoretical commitments of progressive constitutional theory. Progressive constitutional theory originated in the progressive political theory of the late nineteenth and early twentieth centuries. Accordingly, progressive constitutional theory shares progressive political theory’s commitments to two propositions: rationalism and individualism. These commitments lead to an understanding of history as moving in a particular direction—one that is generally in line with progressive ideology. The originalist and traditionalist approaches of the Court’s October 2021 decisions call into question the progressive confidence in the direction of history while simultaneously rejecting the rationalistic and individualistic premises of progressivism. This helps explain why many progressive constitutional theorists have found the Court’s decisions so disorienting and confounding. The October 2021 Term challenged—even though it did not definitively refute—the progressive narrative of constitutional redemption through history. The implications of the Court’s decisions will reverberate through American constitutional theory for decades to come.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219661","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}
Rape mythologies about the “stranger lurking in the bushes” continue to inform attitudes and decisions by law enforcement personnel, judges, and juries. These archaic stereotypes prejudice sexual assault victims by conditioning factfinders to distrust rape allegations lacking corroborative evidence of a physical struggle with a stranger. In reality, over three-quarters of all sexual assaults in the United States are committed by someone known to the victim; more often than not the victim and perpetrator live, work, or attend school together. Given the perpetuation of rape myths, the incarceration rate for these “acquaintance rape” offenders currently stands at less than 1%. The failure of the criminal justice system to protect sexual assault victims from perpetrators with ongoing access to their victims puts victims at genuine risk of future harm. Moreover, existing civil restraining order statutes remain largely unavailable to sexual assault victims, because these statutes either require the presence of a romantic relationship or impose an unattainably high burden of proof for victims with little extrinsic evidence of physical assault. This Article advocates for a new Sexual Assault Protection Order that imposes no relationship requirement, operates under a lower burden of proof, and provides carefully-tailored prospective relief specifically designed for sexual assault victims. This Article also considers the constitutional concerns of critics who argue that restraining order hearings impermissibly adjudicate criminal guilt under more permissive civil procedures. The Article concludes by balancing these competing concerns, and recommending a model Sexual Assault Protection Order that can both provide tangible, attainable protection remedies to victims and adequately protect the rights of the accused.
{"title":"Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders","authors":"Shawn E. Fields","doi":"10.2139/SSRN.2849871","DOIUrl":"https://doi.org/10.2139/SSRN.2849871","url":null,"abstract":"Rape mythologies about the “stranger lurking in the bushes” continue to inform attitudes and decisions by law enforcement personnel, judges, and juries. These archaic stereotypes prejudice sexual assault victims by conditioning factfinders to distrust rape allegations lacking corroborative evidence of a physical struggle with a stranger. In reality, over three-quarters of all sexual assaults in the United States are committed by someone known to the victim; more often than not the victim and perpetrator live, work, or attend school together. Given the perpetuation of rape myths, the incarceration rate for these “acquaintance rape” offenders currently stands at less than 1%. The failure of the criminal justice system to protect sexual assault victims from perpetrators with ongoing access to their victims puts victims at genuine risk of future harm. Moreover, existing civil restraining order statutes remain largely unavailable to sexual assault victims, because these statutes either require the presence of a romantic relationship or impose an unattainably high burden of proof for victims with little extrinsic evidence of physical assault. This Article advocates for a new Sexual Assault Protection Order that imposes no relationship requirement, operates under a lower burden of proof, and provides carefully-tailored prospective relief specifically designed for sexual assault victims. This Article also considers the constitutional concerns of critics who argue that restraining order hearings impermissibly adjudicate criminal guilt under more permissive civil procedures. The Article concludes by balancing these competing concerns, and recommending a model Sexual Assault Protection Order that can both provide tangible, attainable protection remedies to victims and adequately protect the rights of the accused.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2016-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387727","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 addresses the use of state law in bankruptcy in the context of the controversial “hanging paragraph” of the Bankruptcy Code, which was added to the Code by the 2005 amendments. The hanging paragraph appears to grant undersecured car lenders full payment in Chapter 13 bankruptcy cases, treatment that gives such lenders better treatment than other secured lenders. The provision is particularly controversial when applied to negative equity financing. Negative equity financing is provided by lenders when a car buyer offers a trade-in vehicle that is worth less than the outstanding loan that it secures. When a lender makes a negative equity loan, it is undersecured on the day the loan is made.Whether a negative equity loan is entitled to full payment under the hanging paragraph turns on the definition of “purchase money security interest,” a term that is used but not defined in the Bankruptcy Code. The majority of all courts that have addressed the issue, as well as all nine of the Circuit Courts of Appeal that have done so, considered the term to be defined by state law, relying on a 1979 Supreme Court case, Butner v. United States. In this Article, I explain why state law should not define the term purchase money security interest for hanging paragraph purposes.To do so, I propose a framework for analysis that is based on the difference between bankruptcy entry rights and bankruptcy exit rights to show that an analysis that relies only on Butner to determine the appropriate use of state law in bankruptcy is incomplete. This entry/exit framework requires a detailed examination of the package of rights inherent in any property interest in order to determine whether that right is one that bankruptcy policy should respect. I then explain that because a purchase money security interest in a consumer good (such as a car subject to the hanging paragraph) refers only to a bankruptcy exit right, it should be defined according to federal law, following another 1979 Supreme Court case, United States v. Kimbell Foods. I conclude by proposing a bankruptcy policy-based definition of purchase money security interest for hanging paragraph purposes.
本文以2005年修订的《破产法》中备受争议的“悬挂条款”为背景，探讨州法在破产法中的运用。在破产法第13章的破产案件中，悬挂条款似乎给予担保不足的汽车贷款机构全额付款，这类贷款机构的待遇优于其他有担保的贷款机构。这一规定在适用于负股权融资时尤其有争议。当购车者以旧换新提供的汽车价值低于其所担保的未偿还贷款时，贷款机构就会提供负资产融资。当贷款人提供负资产贷款时，在贷款当天就会出现担保不足。负资产贷款是否有资格根据悬款全额支付取决于“购买资金担保利息”的定义，这是破产法中使用但未定义的术语。大多数处理过这个问题的法院，以及所有九个处理过这个问题的巡回上诉法院，都认为这个词应该由州法律来定义，依据的是1979年最高法院的一个案件，Butner v. United States。在本文中，我解释了为什么国家法律不应该为挂款目的而定义购买金钱担保利益。为此，我提出了一个基于破产进入权和破产退出权之间差异的分析框架，以表明仅依靠Butner来确定破产中州法的适当使用的分析是不完整的。这一进入/退出框架要求对任何财产权益所固有的一整套权利进行详细审查，以确定破产政策是否应尊重这一权利。然后，我解释说，因为对消费品(如受悬挂段约束的汽车)的购买资金担保权益只指破产退出权，它应该根据1979年最高法院的另一个案件——美国诉金贝尔食品公司——的联邦法律来定义。最后，笔者提出了一种基于破产政策的购房款担保权益的悬款定义。
{"title":"(Mis)use of State Law in Bankruptcy: The Hanging Paragraph Story","authors":"Juliet M. Moringiello","doi":"10.2139/SSRN.2032078","DOIUrl":"https://doi.org/10.2139/SSRN.2032078","url":null,"abstract":"This article addresses the use of state law in bankruptcy in the context of the controversial “hanging paragraph” of the Bankruptcy Code, which was added to the Code by the 2005 amendments. The hanging paragraph appears to grant undersecured car lenders full payment in Chapter 13 bankruptcy cases, treatment that gives such lenders better treatment than other secured lenders. The provision is particularly controversial when applied to negative equity financing. Negative equity financing is provided by lenders when a car buyer offers a trade-in vehicle that is worth less than the outstanding loan that it secures. When a lender makes a negative equity loan, it is undersecured on the day the loan is made.Whether a negative equity loan is entitled to full payment under the hanging paragraph turns on the definition of “purchase money security interest,” a term that is used but not defined in the Bankruptcy Code. The majority of all courts that have addressed the issue, as well as all nine of the Circuit Courts of Appeal that have done so, considered the term to be defined by state law, relying on a 1979 Supreme Court case, Butner v. United States. In this Article, I explain why state law should not define the term purchase money security interest for hanging paragraph purposes.To do so, I propose a framework for analysis that is based on the difference between bankruptcy entry rights and bankruptcy exit rights to show that an analysis that relies only on Butner to determine the appropriate use of state law in bankruptcy is incomplete. This entry/exit framework requires a detailed examination of the package of rights inherent in any property interest in order to determine whether that right is one that bankruptcy policy should respect. I then explain that because a purchase money security interest in a consumer good (such as a car subject to the hanging paragraph) refers only to a bankruptcy exit right, it should be defined according to federal law, following another 1979 Supreme Court case, United States v. Kimbell Foods. I conclude by proposing a bankruptcy policy-based definition of purchase money security interest for hanging paragraph purposes.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2012-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67870058","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}
Pub Date : 2012-03-05DOI: 10.1017/CBO9780511528248.052
Victor P. Goldberg
{"title":"Readings in the economics of contract law: Price adjustment in long-term contracts","authors":"Victor P. Goldberg","doi":"10.1017/CBO9780511528248.052","DOIUrl":"https://doi.org/10.1017/CBO9780511528248.052","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2012-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511528248.052","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57056773","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 Essay addresses the education of lawyers for community. For twenty-five years I have taught within an academic and practice community of lawyers, clients, judges, scholars, and more recently church ministers and their congregations. Throughout these years, the form and substance of community have changed. For most, the form of a community is discernible despite variation in the demographic status and identity of its membership, or the geography and physical space of its assembly. For others, the substance of a community is elusive, its experience of belonging complex and its intrinsic meaning multifaceted. To many lawyers and legal scholars, the substantive meaning of an engaged community, a community where you have to go together, derives in part from individual and collective efforts to fulfill a core normative responsibility of the legal profession, namely to stand as “a public citizen having special responsibility for the quality of justice.” Under American Bar Association and state ethics rules, that special civic responsibility should guide lawyer performance of the professional functions of representation in advocacy, counseling, and negotiation. The purpose of this Essay is to explore the teaching or pedagogy of community and public citizenship in legal education and professional training. Part of an ongoing classroom study and clinical service project encompassing the education of law students and the continuing training of lawyers, the Essay seeks to integrate several fields of scholarship, notably ethics, education and psychology, law and religion, and the lawyering process. Bracketed by these overlapping fields, the Essay proceeds in four parts. Part I constructs the pedagogy of community and public citizenship from legal and theological materials on mindfulness and spirituality. Part II locates the pedagogy of community and public citizenship in an outcome-based, rotation curricular model of legal education. Part III assesses the pedagogy of community and public citizenship in terms of conventional notions of lawyer role and function in the adversary system. Part IV evaluates the functional compatibility of the pedagogy of community and public citizenship with the curricular form and content of contemporary legal education.
{"title":"Educating Lawyers for Community","authors":"A. Alfieri","doi":"10.2139/SSRN.1991160","DOIUrl":"https://doi.org/10.2139/SSRN.1991160","url":null,"abstract":"This Essay addresses the education of lawyers for community. For twenty-five years I have taught within an academic and practice community of lawyers, clients, judges, scholars, and more recently church ministers and their congregations. Throughout these years, the form and substance of community have changed. For most, the form of a community is discernible despite variation in the demographic status and identity of its membership, or the geography and physical space of its assembly. For others, the substance of a community is elusive, its experience of belonging complex and its intrinsic meaning multifaceted. To many lawyers and legal scholars, the substantive meaning of an engaged community, a community where you have to go together, derives in part from individual and collective efforts to fulfill a core normative responsibility of the legal profession, namely to stand as “a public citizen having special responsibility for the quality of justice.” Under American Bar Association and state ethics rules, that special civic responsibility should guide lawyer performance of the professional functions of representation in advocacy, counseling, and negotiation. The purpose of this Essay is to explore the teaching or pedagogy of community and public citizenship in legal education and professional training. Part of an ongoing classroom study and clinical service project encompassing the education of law students and the continuing training of lawyers, the Essay seeks to integrate several fields of scholarship, notably ethics, education and psychology, law and religion, and the lawyering process. Bracketed by these overlapping fields, the Essay proceeds in four parts. Part I constructs the pedagogy of community and public citizenship from legal and theological materials on mindfulness and spirituality. Part II locates the pedagogy of community and public citizenship in an outcome-based, rotation curricular model of legal education. Part III assesses the pedagogy of community and public citizenship in terms of conventional notions of lawyer role and function in the adversary system. Part IV evaluates the functional compatibility of the pedagogy of community and public citizenship with the curricular form and content of contemporary legal education.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2012-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1991160","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67835869","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 Universal Declaration of Human Rights states: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” This Article suggests how this text may offer a philosophical and legal basis to constrain the further expansion of protectionism in international IP law. Drawing on accepted methodologies of human rights interpretation and recent research from legal and economic scholars on the value of preserving the knowledge commons, the Article offers a theory of “the right to science and culture” as requiring a public goods approach to knowledge innovation and diffusion. The Article then translates this public goods theory into concrete guidance for policy makers seeking to implement human rights obligations, and for jurists asked to adjudicate rights-based challenges to copyright and patent laws. In conclusion, this Article suggests that reviving attention to this long-marginalized provision of international public law may provide an important rhetorical and legal tool with which to open up new possibilities for sensible IP reform.
{"title":"The Right to Science and Culture","authors":"Lea Shaver","doi":"10.2139/SSRN.1354788","DOIUrl":"https://doi.org/10.2139/SSRN.1354788","url":null,"abstract":"The Universal Declaration of Human Rights states: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” This Article suggests how this text may offer a philosophical and legal basis to constrain the further expansion of protectionism in international IP law. Drawing on accepted methodologies of human rights interpretation and recent research from legal and economic scholars on the value of preserving the knowledge commons, the Article offers a theory of “the right to science and culture” as requiring a public goods approach to knowledge innovation and diffusion. The Article then translates this public goods theory into concrete guidance for policy makers seeking to implement human rights obligations, and for jurists asked to adjudicate rights-based challenges to copyright and patent laws. In conclusion, this Article suggests that reviving attention to this long-marginalized provision of international public law may provide an important rhetorical and legal tool with which to open up new possibilities for sensible IP reform.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2009-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168442","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}
Pub Date : 2008-06-11DOI: 10.1017/CBO9780511609800.022
Beverly I. Moran, W. Whitford
Using Census data and the Survey of Income Program participation (SIPP), the authors use social science methodology to show that blacks pay more federal income tax than whites at the same income levels.
{"title":"A Black Critique of the Internal Revenue Code","authors":"Beverly I. Moran, W. Whitford","doi":"10.1017/CBO9780511609800.022","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.022","url":null,"abstract":"Using Census data and the Survey of Income Program participation (SIPP), the authors use social science methodology to show that blacks pay more federal income tax than whites at the same income levels.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2008-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57078079","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}
International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual contracting provide some evidence that coercive sanctions may crowd out self enforcement, implying that too great a propensity by external actors to intervene in the contractual relationship may produce welfare losses. We explore the possibility that too much coercive third-party enforcement similarly can reduce the value of international agreements. We argue that, in spite of the obvious differences between state and individual decisionmaking, enough similarities exist to make the inquiry worthwhile. Using analytic moves worked out in the context of private contracts, we make two general claims about international agreements, one conventional and one controversial. First, we maintain that one usefully can evaluate efforts to frame and implement international agreements in terms of optimal enforcement structure. Choosing from a broad range of normative criteria, one still can distinguish between better and worse enforcement strategies. Second, we argue that the optimal enforcement structure for any particular international agreement will depend on both the goals of the agreement and the context in which it designed and implemented. Because these goals and contexts are diverse, the set of optimal enforcement structures is heterogenous. Some optimal enforcement structures will depend largely on self enforcement, while others will not. Central to our claim is an appreciation of the interaction of self enforcement and third-party coercion including binding arbitration, use of international courts, and enforcement by domestic actors. We maintain that in a far from trivial number of instances subject to international agreement, self enforcement and coercive enforcement may be rivalrous and the optimal enforcement structure would preclude or limit coercive enforcement. In particular, we argue that good theoretical arguments buttress the general tendency of domestic courts not to extend their coercive powers to implement an international agreement without a clear signal from the framers of the agreement that this coercion is desired.
{"title":"Self-Enforcing International Agreements and the Limits of Coercion","authors":"R. Scott, P. Stephan","doi":"10.2139/SSRN.511362","DOIUrl":"https://doi.org/10.2139/SSRN.511362","url":null,"abstract":"International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. Framers of international agreements, no less than the authors of private contracts, can choose between self enforcement and coercive third-party mechanisms to induce compliance with the commitments they make. Studies of individual contracting provide some evidence that coercive sanctions may crowd out self enforcement, implying that too great a propensity by external actors to intervene in the contractual relationship may produce welfare losses. We explore the possibility that too much coercive third-party enforcement similarly can reduce the value of international agreements. We argue that, in spite of the obvious differences between state and individual decisionmaking, enough similarities exist to make the inquiry worthwhile. Using analytic moves worked out in the context of private contracts, we make two general claims about international agreements, one conventional and one controversial. First, we maintain that one usefully can evaluate efforts to frame and implement international agreements in terms of optimal enforcement structure. Choosing from a broad range of normative criteria, one still can distinguish between better and worse enforcement strategies. Second, we argue that the optimal enforcement structure for any particular international agreement will depend on both the goals of the agreement and the context in which it designed and implemented. Because these goals and contexts are diverse, the set of optimal enforcement structures is heterogenous. Some optimal enforcement structures will depend largely on self enforcement, while others will not. Central to our claim is an appreciation of the interaction of self enforcement and third-party coercion including binding arbitration, use of international courts, and enforcement by domestic actors. We maintain that in a far from trivial number of instances subject to international agreement, self enforcement and coercive enforcement may be rivalrous and the optimal enforcement structure would preclude or limit coercive enforcement. In particular, we argue that good theoretical arguments buttress the general tendency of domestic courts not to extend their coercive powers to implement an international agreement without a clear signal from the framers of the agreement that this coercion is desired.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2004-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.511362","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67754455","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 develops a new standard for gap filling in incomplete contracts. It focuses on an important class of situations in which parties leave their agreement deliberately incomplete, with the intent to further negotiate and resolve the remaining issues. In these situations, neither the traditional no-enforcement result nor the usual gap filling approaches accord with the parties' partial consent. Instead, the Article develops the concept of pro-defendant gap-fillers, under which each party is granted an option to enforce the transaction supplemented with terms most favorable (within reason) to the other party. A deliberately incomplete contract with pro-defendant gap fillers transforms into two complete contracts, each favorable to a different party, with each party entitled to enforce only the contract favorable to her opponent. Under this approach, partial consent gives rise to a correspondingly intermediate burden of liability. The Article demonstrates that this regime promotes the interests of negotiating parties who enter agreements-to-agree. It also identifies various doctrinal practices that already incorporate the pro-defendant gap filling logic.
{"title":"'Agreeing to Disagree': Filling Gaps in Deliberately Incomplete Contracts","authors":"O. Ben‐Shahar","doi":"10.2139/SSRN.496183","DOIUrl":"https://doi.org/10.2139/SSRN.496183","url":null,"abstract":"This Article develops a new standard for gap filling in incomplete contracts. It focuses on an important class of situations in which parties leave their agreement deliberately incomplete, with the intent to further negotiate and resolve the remaining issues. In these situations, neither the traditional no-enforcement result nor the usual gap filling approaches accord with the parties' partial consent. Instead, the Article develops the concept of pro-defendant gap-fillers, under which each party is granted an option to enforce the transaction supplemented with terms most favorable (within reason) to the other party. A deliberately incomplete contract with pro-defendant gap fillers transforms into two complete contracts, each favorable to a different party, with each party entitled to enforce only the contract favorable to her opponent. Under this approach, partial consent gives rise to a correspondingly intermediate burden of liability. The Article demonstrates that this regime promotes the interests of negotiating parties who enter agreements-to-agree. It also identifies various doctrinal practices that already incorporate the pro-defendant gap filling logic.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67751028","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}
As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest. These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are given very weighty or dispositive effect; and when the state denies parents an opportunity to challenge the accuracy and reasonableness of their children's statements. The U.S. Supreme Court's decision in Troxel v. Granville increases the urgency of a reassessment of these custody practices. Troxel's reaffirmation of the significance and breadth of parental rights strengthens parents' claim that procedural due process entitles them to access their children's in-camera statements. While such parental access reduces information risks, it exacerbates process risks for children, and counsels careful attention to the context and consequence of preference interviews. This Article briefly surveys preference practices, considers their costs and benefits, and urges a retreat from preference-driven interviews and preference-determinative custody decisions. The Article also considers parental demands for access to children's in-camera statements, and concludes that although such parental access increases risks for children, procedural due process favors it. Finally, the Article suggests that the law's increasing willingness to delegate the custody decision to children stems partly from failure of the open-ended best-interests custody model, and advocates substitution of a modified version of the ALI's more determinant approximation standard. This modified ALI model would allow a reformulation of in-camera interviews as opportunities for children to engage in free narrative, more fully empowering their speech while freeing them from the burdens of painful choice.
{"title":"Swords in the Hands of Babes: Rethinking Custody Interviews after Troxel","authors":"Cynthia Lee Starnes","doi":"10.2139/SSRN.438782","DOIUrl":"https://doi.org/10.2139/SSRN.438782","url":null,"abstract":"As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest. These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are given very weighty or dispositive effect; and when the state denies parents an opportunity to challenge the accuracy and reasonableness of their children's statements. The U.S. Supreme Court's decision in Troxel v. Granville increases the urgency of a reassessment of these custody practices. Troxel's reaffirmation of the significance and breadth of parental rights strengthens parents' claim that procedural due process entitles them to access their children's in-camera statements. While such parental access reduces information risks, it exacerbates process risks for children, and counsels careful attention to the context and consequence of preference interviews. This Article briefly surveys preference practices, considers their costs and benefits, and urges a retreat from preference-driven interviews and preference-determinative custody decisions. The Article also considers parental demands for access to children's in-camera statements, and concludes that although such parental access increases risks for children, procedural due process favors it. Finally, the Article suggests that the law's increasing willingness to delegate the custody decision to children stems partly from failure of the open-ended best-interests custody model, and advocates substitution of a modified version of the ALI's more determinant approximation standard. This modified ALI model would allow a reformulation of in-camera interviews as opportunities for children to engage in free narrative, more fully empowering their speech while freeing them from the burdens of painful choice.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68785669","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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