Most of our genetic information does not change, yet the results of our genetic tests might. Labs reclassify genetic variants in response to advances in genetic science. As a result, a person who took a test in 2010 could take the same test with the same lab in 2020 and get a different result. However, no legal duty requires labs or physicians to inform patients when a lab reclassifies a variant, even if the reclassification communicates clinically actionable information. This Article considers the need for such duties and their potential challenges. In so doing, it offers much-needed guidance to physicians and labs, who may face liability, and to courts, which will hear these cases.
{"title":"GENETIC DUTIES.","authors":"Jessica L Roberts, Alexandra L Foulkes","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Most of our genetic information does not change, yet the results of our genetic tests might. Labs reclassify genetic variants in response to advances in genetic science. As a result, a person who took a test in 2010 could take the same test with the same lab in 2020 and get a different result. However, no legal duty requires labs or physicians to inform patients when a lab reclassifies a variant, even if the reclassification communicates clinically actionable information. This Article considers the need for such duties and their potential challenges. In so doing, it offers much-needed guidance to physicians and labs, who may face liability, and to courts, which will hear these cases.</p>","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"62 1","pages":"143-211"},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10471136/pdf/nihms-1926593.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10152151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The line between guilt and innocence often turns on what a defendant knew. While the law’s approach to knowledge may be relatively straightforward for individuals, its doctrines for corporate defendants are fraught with ambiguity and opportunities for gamesmanship. Corporations can spread information thinly across employees so that it is never “known.” And prosecutors can exploit legal uncertainties to bring knowledge-based charges where corporations were merely negligent in how they handled information. While knowledge as a mens rea has unique practical and normative properties that vary with a corporation’s size and industry, corporate law treats knowledge just like any other mental state and uses the same doctrine for all corporations. Commentators dissatisfied with that doctrine have overlooked an obvious resource: social epistemology, i.e. the formal study of group knowledge states. As a result, it has missed a crucial distinction—between knowledge and information—at the root of ambiguities and inefficiencies in the law and proposed reforms. This Article is the first to draw on the tools of social epistemology and organizational science to develop a functional theory of corporate knowledge. Its goal is to validate the legislature’s frequent choice of knowledge as a mens rea while also inducing corporations of all sorts to process information at socially optimal levels. Critical to the analysis are the incentives corporations have to (mis)manage information, the public cost of corporate crime, and the private cost of corporate compliance. A functional approach to corporate knowledge would eschew the binaries of current doctrine in favor of a sliding test keyed to two factors: 1) “effort,” i.e. the cost of information management, and 2) “obviousness,” i.e. how peer corporations would perform with respect to the same information. The resulting theory is flexible enough to fine tune incentives for corporations of all sizes and industries while also intuitively capturing what culpable knowledge means in the corporate context.
{"title":"Functional Corporate Knowledge","authors":"Mihailis E. Diamantis","doi":"10.2139/SSRN.3236254","DOIUrl":"https://doi.org/10.2139/SSRN.3236254","url":null,"abstract":"The line between guilt and innocence often turns on what a defendant knew. While the law’s approach to knowledge may be relatively straightforward for individuals, its doctrines for corporate defendants are fraught with ambiguity and opportunities for gamesmanship. Corporations can spread information thinly across employees so that it is never “known.” And prosecutors can exploit legal uncertainties to bring knowledge-based charges where corporations were merely negligent in how they handled information. While knowledge as a mens rea has unique practical and normative properties that vary with a corporation’s size and industry, corporate law treats knowledge just like any other mental state and uses the same doctrine for all corporations. Commentators dissatisfied with that doctrine have overlooked an obvious resource: social epistemology, i.e. the formal study of group knowledge states. As a result, it has missed a crucial distinction—between knowledge and information—at the root of ambiguities and inefficiencies in the law and proposed reforms. \u0000 \u0000This Article is the first to draw on the tools of social epistemology and organizational science to develop a functional theory of corporate knowledge. Its goal is to validate the legislature’s frequent choice of knowledge as a mens rea while also inducing corporations of all sorts to process information at socially optimal levels. Critical to the analysis are the incentives corporations have to (mis)manage information, the public cost of corporate crime, and the private cost of corporate compliance. A functional approach to corporate knowledge would eschew the binaries of current doctrine in favor of a sliding test keyed to two factors: 1) “effort,” i.e. the cost of information management, and 2) “obviousness,” i.e. how peer corporations would perform with respect to the same information. The resulting theory is flexible enough to fine tune incentives for corporations of all sizes and industries while also intuitively capturing what culpable knowledge means in the corporate context.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"61 1","pages":"319"},"PeriodicalIF":0.0,"publicationDate":"2019-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68576356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person's health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is shared. Touted as a major civil rights law at the time of its passage, the Genetic Information Nondiscrimination Act of 2008 (GINA) has endured ten years of criticism that its protections are ineffectual, insufficient, or even unethical and overtly unsafe for the people it aims to protect. At the center of this controversy are provisions of GINA that expand people's access to genetic information that others store about them-a heavily contested assertion that data transparency implies sharing data not just with third parties, but with the people whose data are being shared. This Article traces the decades-long roots of this assertion and explores pathways to resolve the controversy that engulfs it. It is important to resolve this controversy. As GINA enters its second decade, genomics is finally starting to gain sufficient predictive power to support discriminatory and other nefarious uses that GINA was designed to prevent. We are entering a positive feedback loop in which the genomic research that exposes us to risk of unwanted data disclosures simultaneously fuels discoveries that make such disclosures potentially more damaging.
{"title":"THE GENETIC INFORMATION NONDISCRIMINATION ACT AT AGE 10: GINA'S CONTROVERSIAL ASSERTION THAT DATA TRANSPARENCY PROTECTS PRIVACY AND CIVIL RIGHTS.","authors":"Barbara J Evans","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person's health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is shared. Touted as a major civil rights law at the time of its passage, the Genetic Information Nondiscrimination Act of 2008 (GINA) has endured ten years of criticism that its protections are ineffectual, insufficient, or even unethical and overtly unsafe for the people it aims to protect. At the center of this controversy are provisions of GINA that expand people's access to genetic information that others store about them-a heavily contested assertion that data transparency implies sharing data not just with third parties, but with the people whose data are being shared. This Article traces the decades-long roots of this assertion and explores pathways to resolve the controversy that engulfs it. It is important to resolve this controversy. As GINA enters its second decade, genomics is finally starting to gain sufficient predictive power to support discriminatory and other nefarious uses that GINA was designed to prevent. We are entering a positive feedback loop in which the genomic research that exposes us to risk of unwanted data disclosures simultaneously fuels discoveries that make such disclosures potentially more damaging.</p>","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 6","pages":"2017-2109"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8095822/pdf/nihms-1062756.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"38953619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the height of the opiate epidemic, Tennessee lawmakers made it a crime for a pregnant woman to transmit narcotics to a fetus. They promised that charging new mothers with this crime would help them receive the treatment and support they often desperately need. In Prosecuting Poverty, Criminalizing Care, Wendy Bach describes the law's actual effect through meticulous examination of the cases of 120 women who were prosecuted for this crime. Drawing on quantitative and qualitative data, Bach demonstrates that both prosecuting 'fetal assault', and institutionalizing the all-too-common idea that criminalization is a road to care, lead at best to clinically dangerous and corrupt treatment, and at worst, and far more often, to an insidious smokescreen obscuring harsh punishment. Urgent, instructive, and humane, this retelling demands we stop criminalizing care and instead move towards robust and respectful systems that meet the real needs of families in poor communities.
{"title":"Prosecuting Poverty, Criminalizing Care","authors":"W. Bach","doi":"10.1017/9781108693783","DOIUrl":"https://doi.org/10.1017/9781108693783","url":null,"abstract":"At the height of the opiate epidemic, Tennessee lawmakers made it a crime for a pregnant woman to transmit narcotics to a fetus. They promised that charging new mothers with this crime would help them receive the treatment and support they often desperately need. In Prosecuting Poverty, Criminalizing Care, Wendy Bach describes the law's actual effect through meticulous examination of the cases of 120 women who were prosecuted for this crime. Drawing on quantitative and qualitative data, Bach demonstrates that both prosecuting 'fetal assault', and institutionalizing the all-too-common idea that criminalization is a road to care, lead at best to clinically dangerous and corrupt treatment, and at worst, and far more often, to an insidious smokescreen obscuring harsh punishment. Urgent, instructive, and humane, this retelling demands we stop criminalizing care and instead move towards robust and respectful systems that meet the real needs of families in poor communities.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 1","pages":"809"},"PeriodicalIF":0.0,"publicationDate":"2018-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47133980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the end of its last term, the Supreme Court held in Pereira v. Sessions that a notice to appear at removal proceedings that does not include the time and place of the proceedings cannot interrupt the continuous physical presence requirement that may entitle a noncitizen to cancellation of removal. Since the decision was announced, there has been a feverous debate about whether the case applies not just when cancellation of removal is sought but to all immigration removal proceedings since every judicial removal proceeding is initiated with a notice to appear. Immigration advocates argue, and some courts have already agreed, that Pereira applies to all adversarial removal proceedings and that the case necessarily means that immigration courts lack subject matter jurisdiction in any case that began with a notice to appear that did not include the time and place of the proceedings. By contrast, the government’s view — and that of a number of other courts — is that Pereira is very limited in its application. To help lawyers and judges think clearly about the case’s impact, this paper offers an assessment of the issues raised. I reach several major conclusions that, collectively, are at odds with positions advanced on both sides. As for Pereira’s scope, I conclude that it applies to all removal proceedings and is not confined to the narrower context in which the case arose. However, I reject the view that treating improper notice is relevant to the immigration court’s jurisdiction over removal proceedings. But while a defective notice is irrelevant to the court’s jurisdiction, there still are consequences if the government has served a defective notice. I show that whether, and in what cases, a Pereira challenge may matter turns on three factors: Pereira’s applicability, either prospectively or retroactively; the possibility of forfeiture; and, finally, the noncitizen’s ability to demonstrate prejudice in the underlying removal proceeding resulting from service of a defective notice.
{"title":"Pereira's Aftershocks","authors":"L. Hoffman","doi":"10.2139/SSRN.3289751","DOIUrl":"https://doi.org/10.2139/SSRN.3289751","url":null,"abstract":"At the end of its last term, the Supreme Court held in Pereira v. Sessions that a notice to appear at removal proceedings that does not include the time and place of the proceedings cannot interrupt the continuous physical presence requirement that may entitle a noncitizen to cancellation of removal. Since the decision was announced, there has been a feverous debate about whether the case applies not just when cancellation of removal is sought but to all immigration removal proceedings since every judicial removal proceeding is initiated with a notice to appear. Immigration advocates argue, and some courts have already agreed, that Pereira applies to all adversarial removal proceedings and that the case necessarily means that immigration courts lack subject matter jurisdiction in any case that began with a notice to appear that did not include the time and place of the proceedings. By contrast, the government’s view — and that of a number of other courts — is that Pereira is very limited in its application. To help lawyers and judges think clearly about the case’s impact, this paper offers an assessment of the issues raised. I reach several major conclusions that, collectively, are at odds with positions advanced on both sides. As for Pereira’s scope, I conclude that it applies to all removal proceedings and is not confined to the narrower context in which the case arose. However, I reject the view that treating improper notice is relevant to the immigration court’s jurisdiction over removal proceedings. But while a defective notice is irrelevant to the court’s jurisdiction, there still are consequences if the government has served a defective notice. I show that whether, and in what cases, a Pereira challenge may matter turns on three factors: Pereira’s applicability, either prospectively or retroactively; the possibility of forfeiture; and, finally, the noncitizen’s ability to demonstrate prejudice in the underlying removal proceeding resulting from service of a defective notice.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"61 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2018-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41680833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic. It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics. Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.
{"title":"Reapportionment, Nonapportionment, and Recovering Some Lost History of One Person, One Vote","authors":"Pamela S. Karlan","doi":"10.2139/SSRN.3028237","DOIUrl":"https://doi.org/10.2139/SSRN.3028237","url":null,"abstract":"The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic. \u0000It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics. \u0000Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"1921"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3028237","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45969489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person's health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is shared. Touted as a major civil rights law at the time of its passage, the Genetic Information Nondiscrimination Act of 2008 (GINA) has endured ten years of criticism that its protections are ineffectual, insufficient, or even unethical and overtly unsafe for the people it aims to protect. At the center of this controversy are provisions of GINA that expand people's access to genetic information that others store about them-a heavily contested assertion that data transparency implies sharing data not just with third parties, but with the people whose data are being shared. This Article traces the decades-long roots of this assertion and explores pathways to resolve the controversy that engulfs it. It is important to resolve this controversy. As GINA enters its second decade, genomics is finally starting to gain sufficient predictive power to support discriminatory and other nefarious uses that GINA was designed to prevent. We are entering a positive feedback loop in which the genomic research that exposes us to risk of unwanted data disclosures simultaneously fuels discoveries that make such disclosures potentially more damaging.
{"title":"THE GENETIC INFORMATION NONDISCRIMINATION ACT AT AGE 10: GINA'S CONTROVERSIAL ASSERTION THAT DATA TRANSPARENCY PROTECTS PRIVACY AND CIVIL RIGHTS.","authors":"B. Evans","doi":"10.2139/ssrn.3128860","DOIUrl":"https://doi.org/10.2139/ssrn.3128860","url":null,"abstract":"The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person's health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is shared. Touted as a major civil rights law at the time of its passage, the Genetic Information Nondiscrimination Act of 2008 (GINA) has endured ten years of criticism that its protections are ineffectual, insufficient, or even unethical and overtly unsafe for the people it aims to protect. At the center of this controversy are provisions of GINA that expand people's access to genetic information that others store about them-a heavily contested assertion that data transparency implies sharing data not just with third parties, but with the people whose data are being shared. This Article traces the decades-long roots of this assertion and explores pathways to resolve the controversy that engulfs it. It is important to resolve this controversy. As GINA enters its second decade, genomics is finally starting to gain sufficient predictive power to support discriminatory and other nefarious uses that GINA was designed to prevent. We are entering a positive feedback loop in which the genomic research that exposes us to risk of unwanted data disclosures simultaneously fuels discoveries that make such disclosures potentially more damaging.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 6 1","pages":"2017-2109"},"PeriodicalIF":0.0,"publicationDate":"2018-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48224121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means. This paper investigates Madison’s hypothesis by documenting the methods actually deployed on the ground to influence or to thwart national policy making used by subnational units in nine federal or quasi-federal states: Argentina, Austria, Belgium, Canada, Germany, Italy, Spain, Switzerland, and the United States. The study produces two notable findings. First, the evidence confirms Madison’s prediction that subnational units in federal states will from time to time assert themselves against national power – ambition does appear to counteract, or at least to be deployed against, ambition. Second, the data show strikingly that subnational units in federal states have energetically developed a great variety of methods to attempt to shape, influence, or thwart national policies. Indeed, the evidence demonstrates that subnational units have not confined themselves to the use of tools of influence provided by their constitutions, but have in many cases creatively developed new tools of influence outside of the formal constitutional scheme. This phenomenon raises the possibility that Madison’s institutional prescription for constitutional stabilization may have the perverse effect of creating the conditions for constitutional destabilization instead. This conclusion in turn throws doubt on the Madisonian premise that constitutions can, through careful engineering, be made to stabilize themselves at their initial design specifications.
{"title":"The Theory and Practice of Contestatory Federalism","authors":"James A. Gardner","doi":"10.2139/SSRN.3068259","DOIUrl":"https://doi.org/10.2139/SSRN.3068259","url":null,"abstract":"Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means. \u0000 \u0000This paper investigates Madison’s hypothesis by documenting the methods actually deployed on the ground to influence or to thwart national policy making used by subnational units in nine federal or quasi-federal states: Argentina, Austria, Belgium, Canada, Germany, Italy, Spain, Switzerland, and the United States. \u0000 \u0000The study produces two notable findings. First, the evidence confirms Madison’s prediction that subnational units in federal states will from time to time assert themselves against national power – ambition does appear to counteract, or at least to be deployed against, ambition. Second, the data show strikingly that subnational units in federal states have energetically developed a great variety of methods to attempt to shape, influence, or thwart national policies. Indeed, the evidence demonstrates that subnational units have not confined themselves to the use of tools of influence provided by their constitutions, but have in many cases creatively developed new tools of influence outside of the formal constitutional scheme. This phenomenon raises the possibility that Madison’s institutional prescription for constitutional stabilization may have the perverse effect of creating the conditions for constitutional destabilization instead. This conclusion in turn throws doubt on the Madisonian premise that constitutions can, through careful engineering, be made to stabilize themselves at their initial design specifications.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"507-588"},"PeriodicalIF":0.0,"publicationDate":"2018-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41310348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.
{"title":"No Arbitrary Power: An Originalist Theory of the Due Process of Law","authors":"Randy E. Barnett, Evan D. Bernick","doi":"10.2139/SSRN.3149590","DOIUrl":"https://doi.org/10.2139/SSRN.3149590","url":null,"abstract":"“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. \u0000We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. \u0000By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 1","pages":"1599"},"PeriodicalIF":0.0,"publicationDate":"2018-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44316979","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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