This article lays out a legislative process failure theory of statutory interpretation. It first defends an intent-based approach to interpretation by arguing that Congress, in the process of drafting statutes, does not use the same mechanisms for determining meaning as do courts when they interpret them. Therefore, courts and legislatures comprise different linguistic interpretive communities. The article proceeds to define legislative process failure to occur when the mechanism of each community leads to different understandings of statutory text. The paramount question then becomes: what is the best response of the legal system to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature’s understanding. That assumption, however, is satisfied so long as Congress knows how courts will interpret statutes and can adjust its process to ensure that the statutes it enacts will be interpreted as it intends. Legislative process failure theory therefore leads to the subsequent question: which branch should accommodate the other’s method of attaching meaning to statutes, and under what circumstances? I conclude that, generally, legislatures cannot engage in judicial type inquiries into statutory meaning while drafting statutes because the cost of engaging such statutory analysis ex-ante – before identification of the potential provisions that might exhibit process failure – is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Hence, in the face of such awareness, usually a textual approach is justified. Finally, having developed the legislative process failure of interpretation, the article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.
{"title":"A Process Failure Theory of Statutory Interpretation","authors":"M. Seidenfeld","doi":"10.2139/SSRN.2339698","DOIUrl":"https://doi.org/10.2139/SSRN.2339698","url":null,"abstract":"This article lays out a legislative process failure theory of statutory interpretation. It first defends an intent-based approach to interpretation by arguing that Congress, in the process of drafting statutes, does not use the same mechanisms for determining meaning as do courts when they interpret them. Therefore, courts and legislatures comprise different linguistic interpretive communities. The article proceeds to define legislative process failure to occur when the mechanism of each community leads to different understandings of statutory text. The paramount question then becomes: what is the best response of the legal system to such failure? Legislative supremacy requires that the courts and Congress come to some accommodation to ensure that courts will interpret statutes in accord with the legislature’s understanding. That assumption, however, is satisfied so long as Congress knows how courts will interpret statutes and can adjust its process to ensure that the statutes it enacts will be interpreted as it intends. Legislative process failure theory therefore leads to the subsequent question: which branch should accommodate the other’s method of attaching meaning to statutes, and under what circumstances? I conclude that, generally, legislatures cannot engage in judicial type inquiries into statutory meaning while drafting statutes because the cost of engaging such statutory analysis ex-ante – before identification of the potential provisions that might exhibit process failure – is prohibitive. But, once the legislature becomes aware of a process failure, the costs of engaging in judicial type textual inquiry become manageable, and the error costs of interpretation due to strategic manipulation of legislative meaning greatly increase. Hence, in the face of such awareness, usually a textual approach is justified. Finally, having developed the legislative process failure of interpretation, the article considers several types of failures for which courts should accommodate the legislative approach to attaching meaning to statutes.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"56 1","pages":"467"},"PeriodicalIF":0.0,"publicationDate":"2013-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2339698","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68119523","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}
Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.
{"title":"Is Guilt Dispositive? Federal Habeas after Martinez","authors":"J. Marceau","doi":"10.2139/SSRN.2338588","DOIUrl":"https://doi.org/10.2139/SSRN.2338588","url":null,"abstract":"Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"24 1","pages":"2071"},"PeriodicalIF":0.0,"publicationDate":"2013-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68118376","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}
Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.
{"title":"Congress's Treaty-Implementing Power in Historical Practice","authors":"J. Galbraith","doi":"10.2139/SSRN.2275355","DOIUrl":"https://doi.org/10.2139/SSRN.2275355","url":null,"abstract":"Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"25 1","pages":"59"},"PeriodicalIF":0.0,"publicationDate":"2013-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68052683","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}
Christopher L. Griffin, F. Sloan, Lindsey M. Eldred
Much empirical analysis has documented racial disparities at the beginning and end stages of a criminal case. However, our understanding about the perpetuation of - and even corrections for - differential outcomes as the process unfolds remains less than complete. This Article provides a comprehensive examination of criminal dispositions using all DWI cases in North Carolina during the period 2001-2011, focusing on several major decision points in the process. Starting with pretrial hearings and culminating in sentencing results, we track differences in outcomes by race and gender. Before sentencing, significant gaps emerge in the severity of pretrial release conditions that disadvantage black and Hispanic defendants. Yet when prosecutors decide whether to pursue charges, we observe an initial correction mechanism: Hispanic men are almost two-thirds more likely to have those charges dropped relative to white men. Although few cases survive after the plea bargaining stage, a second correction mechanism arises: Hispanic men are substantially less likely to receive harsher sentences and are sent to jail for significantly less time relative to white men. The first mechanism is based in part on prosecutors' reviewing the strength of the evidence but much more on declining to invest scarce resources in the pursuit of defendants who fail to appear for trial. The second mechanism seems to follow more directly from judicial discretion to reverse decisions made by law enforcement. We discuss possible explanations for these novel empirical results and review methods for more precisely identifying causal mechanisms in criminal justice.
{"title":"CORRECTIONS FOR RACIAL DISPARITIES IN LAW ENFORCEMENT.","authors":"Christopher L. Griffin, F. Sloan, Lindsey M. Eldred","doi":"10.2139/SSRN.2104182","DOIUrl":"https://doi.org/10.2139/SSRN.2104182","url":null,"abstract":"Much empirical analysis has documented racial disparities at the beginning and end stages of a criminal case. However, our understanding about the perpetuation of - and even corrections for - differential outcomes as the process unfolds remains less than complete. This Article provides a comprehensive examination of criminal dispositions using all DWI cases in North Carolina during the period 2001-2011, focusing on several major decision points in the process. Starting with pretrial hearings and culminating in sentencing results, we track differences in outcomes by race and gender. Before sentencing, significant gaps emerge in the severity of pretrial release conditions that disadvantage black and Hispanic defendants. Yet when prosecutors decide whether to pursue charges, we observe an initial correction mechanism: Hispanic men are almost two-thirds more likely to have those charges dropped relative to white men. Although few cases survive after the plea bargaining stage, a second correction mechanism arises: Hispanic men are substantially less likely to receive harsher sentences and are sent to jail for significantly less time relative to white men. The first mechanism is based in part on prosecutors' reviewing the strength of the evidence but much more on declining to invest scarce resources in the pursuit of defendants who fail to appear for trial. The second mechanism seems to follow more directly from judicial discretion to reverse decisions made by law enforcement. We discuss possible explanations for these novel empirical results and review methods for more precisely identifying causal mechanisms in criminal justice.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"55 4 1","pages":"1365-1427"},"PeriodicalIF":0.0,"publicationDate":"2013-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67913360","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}
Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one’s house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others. This article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutional protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it personal, familial, or associational. Fourth, these contested spaces – like traditional curtilage – will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes.The article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also addresses the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.
{"title":"Personal Curtilage: Fourth Amendment Security in Public","authors":"A. Ferguson","doi":"10.2139/SSRN.2230653","DOIUrl":"https://doi.org/10.2139/SSRN.2230653","url":null,"abstract":"Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one’s house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others. This article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutional protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it personal, familial, or associational. Fourth, these contested spaces – like traditional curtilage – will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes.The article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also addresses the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"55 1","pages":"1283"},"PeriodicalIF":0.0,"publicationDate":"2013-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68010691","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 Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience. Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislativ
{"title":"Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras","authors":"J. Brudney, L. Baum","doi":"10.2139/SSRN.2195644","DOIUrl":"https://doi.org/10.2139/SSRN.2195644","url":null,"abstract":"The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience. Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislativ","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"55 1","pages":"483"},"PeriodicalIF":0.0,"publicationDate":"2013-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67979156","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}
Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits geneticinformation discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that restricting access to information about protected status can thwart future discrimination by denying potential discriminators the very information they would use to discriminate. Informed by this perspective, the Essay explores the advantages and disadvantages of using privacy law as a tool for antidiscrimination, in the context of genetic information and beyond. Finally, the Essay concludes that the weaknesses endemic to privacy law might be addressed by adopting an explicit antidiscrimination purpose. Thus, just as advocates of antidiscrimination may look to privacy law, advocates of privacy protections can look to antidiscrimination. * Assistant Professor of Law, University of Houston Law Center. Thank you to Aaron Bruhl, Brad Areheart, Jessica Clarke, Dave Fagundes, and Mark Rothstein for reading and commenting on drafts. I presented early versions of this Essay during the 3rd Annual National Conference on Genetics, Ethics, & the Law at the University of Virginia Law School and the 2013 ASU Legal Scholars Conference, so my gratitude likewise goes to the participants of those workshops. Many thanks to Chelsea Averill and Zachary White for research assistance and Emily Lawson for library help. ii PRIVACY 1 August 2013
{"title":"Privacy as a Tool for Antidiscrimination","authors":"Jessica Roberts","doi":"10.2139/ssrn.2263583","DOIUrl":"https://doi.org/10.2139/ssrn.2263583","url":null,"abstract":"Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits geneticinformation discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that restricting access to information about protected status can thwart future discrimination by denying potential discriminators the very information they would use to discriminate. Informed by this perspective, the Essay explores the advantages and disadvantages of using privacy law as a tool for antidiscrimination, in the context of genetic information and beyond. Finally, the Essay concludes that the weaknesses endemic to privacy law might be addressed by adopting an explicit antidiscrimination purpose. Thus, just as advocates of antidiscrimination may look to privacy law, advocates of privacy protections can look to antidiscrimination. * Assistant Professor of Law, University of Houston Law Center. Thank you to Aaron Bruhl, Brad Areheart, Jessica Clarke, Dave Fagundes, and Mark Rothstein for reading and commenting on drafts. I presented early versions of this Essay during the 3rd Annual National Conference on Genetics, Ethics, & the Law at the University of Virginia Law School and the 2013 ASU Legal Scholars Conference, so my gratitude likewise goes to the participants of those workshops. Many thanks to Chelsea Averill and Zachary White for research assistance and Emily Lawson for library help. ii PRIVACY 1 August 2013","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68042397","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 partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists.The dominant scholarly view holds that provocation is best explained and defended as a partial excuse on the grounds that the killer’s inflamed emotional state so compromised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct. In contrast,a small minority of scholars have maintained, without significant argumentative support, that provocation is best understood as a partial justification on the ground that the provoked killing is less wrongful than is an unprovoked killing, ceteris paribus. Recently, other commentators have argued that provocation mitigation is neither partial excuse nor partial justification.Against all of these familiar positions, we argue that partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. In our view, an intentional killing deserves to be punished and labeled as manslaughter rather than murder only when, because of provocation, this particular killing is significantly less wrongful than the standard intentional killing and when, because of the actor’s partial lack of control, he is less blameworthy for committing an act that remains all-things-considered wrongful. In elaborating and defending our account, we rebut the oft-repeated but rarely challenged propositions that justification and excuse, even in partial forms, are mutually exclusive, and that the very notion of partial justification is incoherent. We also draw forth implications for how the sentencing ranges for murder and manslaughter should be related.
{"title":"Provocation Manslaughter as Partial Justification and Partial Excuse","authors":"Ian P. Farrell, Mitchell N. Berman","doi":"10.2139/SSRN.2130692","DOIUrl":"https://doi.org/10.2139/SSRN.2130692","url":null,"abstract":"The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists.The dominant scholarly view holds that provocation is best explained and defended as a partial excuse on the grounds that the killer’s inflamed emotional state so compromised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct. In contrast,a small minority of scholars have maintained, without significant argumentative support, that provocation is best understood as a partial justification on the ground that the provoked killing is less wrongful than is an unprovoked killing, ceteris paribus. Recently, other commentators have argued that provocation mitigation is neither partial excuse nor partial justification.Against all of these familiar positions, we argue that partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. In our view, an intentional killing deserves to be punished and labeled as manslaughter rather than murder only when, because of provocation, this particular killing is significantly less wrongful than the standard intentional killing and when, because of the actor’s partial lack of control, he is less blameworthy for committing an act that remains all-things-considered wrongful. In elaborating and defending our account, we rebut the oft-repeated but rarely challenged propositions that justification and excuse, even in partial forms, are mutually exclusive, and that the very notion of partial justification is incoherent. We also draw forth implications for how the sentencing ranges for murder and manslaughter should be related.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"52 1","pages":"1027"},"PeriodicalIF":0.0,"publicationDate":"2012-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67932858","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}
This replaces an unauthorized heavily cut upload which I must disclaim. A late draft, this may be somewhat closer to my intention than the published piece as well.This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the intrinsic sources of power and the individual rights that are power’s extrinsic limits. This Article argues, further, that in rights-based constitutional litigation, substantial scrutiny should become, and as a practical matter is, the general rule, and that certain economic rights should have the benefit of substantial scrutiny. Among the current and recent cases briefly discussed are Sebelius, the “Obamacare” case; Morrison, the Virginia Tech rape case; Kiobel, the Nigerian torture case; Kelo, the failed redevelopment case; Astrue, the in vitro child Social Security case, and Arizona v. U.S., the immigration case.
{"title":"A General Theory of Governance: Due Process and Lawmaking Power","authors":"L. Weinberg","doi":"10.2139/SSRN.2125474","DOIUrl":"https://doi.org/10.2139/SSRN.2125474","url":null,"abstract":"This replaces an unauthorized heavily cut upload which I must disclaim. A late draft, this may be somewhat closer to my intention than the published piece as well.This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the intrinsic sources of power and the individual rights that are power’s extrinsic limits. This Article argues, further, that in rights-based constitutional litigation, substantial scrutiny should become, and as a practical matter is, the general rule, and that certain economic rights should have the benefit of substantial scrutiny. Among the current and recent cases briefly discussed are Sebelius, the “Obamacare” case; Morrison, the Virginia Tech rape case; Kiobel, the Nigerian torture case; Kelo, the failed redevelopment case; Astrue, the in vitro child Social Security case, and Arizona v. U.S., the immigration case.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"54 1","pages":"1057"},"PeriodicalIF":0.0,"publicationDate":"2012-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2125474","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67927693","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}
It is often thought that the judicial recognition of customary international law depends on jurisprudential assumptions about the nature of legal norms, law, and legal validity. This is a mistake. The limits on a judicial reliance on customary international law are constitutional or evidentiary, not jurisprudential. Although Erie Railroad Co. v. Tompkins fairly can be read to require domestic authorization for customary international law to have domestic legal effect, the case and its reasoning do not rely on commitments to a theory of law. Acceptance of the claims of legal positivism is neither necessary nor sufficient for Erie’s result, nor for its application to customary international law. In fact, reliance on positivism has an unwelcome consequence for the legally binding character of customary international law even on states. Finally, the same conception of law or legal validity can ground different views about the relation between international and domestic law. Positions on the priority of customary international law are determined by views about that relation, not by views on the source of its authority. Taken together, these considerations suggest that jurisprudence isn’t needed to answer the questions that courts and legal authorities ask about customary international law's content, the legal obligations it creates, and its domestic legal effect.
{"title":"Why Jurisprudence Doesn't Matter for Customary International Law","authors":"S. Walt","doi":"10.2139/SSRN.2080476","DOIUrl":"https://doi.org/10.2139/SSRN.2080476","url":null,"abstract":"It is often thought that the judicial recognition of customary international law depends on jurisprudential assumptions about the nature of legal norms, law, and legal validity. This is a mistake. The limits on a judicial reliance on customary international law are constitutional or evidentiary, not jurisprudential. Although Erie Railroad Co. v. Tompkins fairly can be read to require domestic authorization for customary international law to have domestic legal effect, the case and its reasoning do not rely on commitments to a theory of law. Acceptance of the claims of legal positivism is neither necessary nor sufficient for Erie’s result, nor for its application to customary international law. In fact, reliance on positivism has an unwelcome consequence for the legally binding character of customary international law even on states. Finally, the same conception of law or legal validity can ground different views about the relation between international and domestic law. Positions on the priority of customary international law are determined by views about that relation, not by views on the source of its authority. Taken together, these considerations suggest that jurisprudence isn’t needed to answer the questions that courts and legal authorities ask about customary international law's content, the legal obligations it creates, and its domestic legal effect.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"54 1","pages":"1023"},"PeriodicalIF":0.0,"publicationDate":"2012-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67903004","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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