It is generally believed that the judicial review of agency rulemakings helps protect the public interest against industry capture. Yet very little empirical research has been done to assess the accuracy of this conventional wisdom. This study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals, and discovers significant disconnects between popular understanding of judicial review and rule-making reality. Of these air toxic rules (N=90), the courts were summoned to review only a small fraction (8%), despite evidence that many air toxic rules may have problems, at least from the public interest perspective. Moreover, although virtually all of the litigation brought by public interest groups against the EPA’s air toxic rules was successful, the resulting victories have not yet had much impact in practice. For most of its vacated regulations, the EPA has either ignored or limited the courts’ opinions and has not re-promulgated revised rules. Thus, while the tenor of the opinions seems to re-affirm the courts’ role as guardian of the public interest, the actual impact of these opinions on agency practice may be less influential than one might expect. A concluding section takes the analysis one step further and explores the possibility that the net effect of judicial review may actually be more perverse. The ability of the dominant parties (which in the case of EPA’s air toxic rules is regulated industry) to threaten the agency with expensive and time-consuming litigation could provide these groups with legal leverage that, in the aggregate serves to further undermine the agency’s ability to act on behalf of the public interest.
{"title":"Revisiting the Impact of Judicial Review on Agency Rulemakings: An Empirical Investigation","authors":"W. Wagner","doi":"10.15781/T2VM42Z5B","DOIUrl":"https://doi.org/10.15781/T2VM42Z5B","url":null,"abstract":"It is generally believed that the judicial review of agency rulemakings helps protect the public interest against industry capture. Yet very little empirical research has been done to assess the accuracy of this conventional wisdom. This study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals, and discovers significant disconnects between popular understanding of judicial review and rule-making reality. Of these air toxic rules (N=90), the courts were summoned to review only a small fraction (8%), despite evidence that many air toxic rules may have problems, at least from the public interest perspective. Moreover, although virtually all of the litigation brought by public interest groups against the EPA’s air toxic rules was successful, the resulting victories have not yet had much impact in practice. For most of its vacated regulations, the EPA has either ignored or limited the courts’ opinions and has not re-promulgated revised rules. Thus, while the tenor of the opinions seems to re-affirm the courts’ role as guardian of the public interest, the actual impact of these opinions on agency practice may be less influential than one might expect. A concluding section takes the analysis one step further and explores the possibility that the net effect of judicial review may actually be more perverse. The ability of the dominant parties (which in the case of EPA’s air toxic rules is regulated industry) to threaten the agency with expensive and time-consuming litigation could provide these groups with legal leverage that, in the aggregate serves to further undermine the agency’s ability to act on behalf of the public interest.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"53 1","pages":"1717"},"PeriodicalIF":0.0,"publicationDate":"2012-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67098255","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}
Pub Date : 2011-09-20DOI: 10.1093/acprof:osobl/9780199837427.003.0003
Julian G. Ku, J. Yoo
Globalization creates pressure for increased international cooperation, and to reap the benefits of collective action, international cooperation is likely to take forms that resemble those of the American administrative state. An international regulatory regime generally will need to reach all activity, regardless of each individual nation’s internal hierarchy of authority. Although relatively new to the international scene, these forms and orders should sound familiar to students of the American administrative state. Just as new international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords, for example, had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm, as discussed in Wickard v. Filburn. The New Deal’s stretching of constitutional doctrine sparked a confrontation between President Franklin D. Roosevelt (FDR) and the Supreme Court, which initially espoused a narrower and less flexible vision of federal power and the role of administrative agencies. Without a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law. This article will offer the outlines of such a theory.
全球化为加强国际合作创造了压力，为了获得集体行动的好处，国际合作很可能采取类似于美国行政国家的形式。一般来说，国际监管制度需要涵盖所有活动，而不管每个国家的内部权威等级如何。尽管这些形式和秩序在国际舞台上相对较新，但对于研究美国行政国家的学生来说，它们应该听起来很熟悉。正如新的国际制度寻求对普通行为进行更普遍的监管一样，新政也寻求对曾经由国家控制的私人经济决策进行国家控制。例如，正如威卡德诉菲尔伯恩案所讨论的那样，《京都议定书》在联邦政府控制每个美国农场每蒲式耳小麦产量的努力中有相应的规定。新政对宪法原则的延伸引发了总统富兰克林·d·罗斯福(Franklin D. Roosevelt)与最高法院之间的对抗，最高法院最初对联邦权力和行政机构的作用持狭隘和不太灵活的看法。如果没有一种理论允许国际政策要求与美国宪法体系相适应，这些新形式的国际合作很可能会产生与宪法法律类似的冲突。本文将提供这样一个理论的概要。
{"title":"Globalization and Structure","authors":"Julian G. Ku, J. Yoo","doi":"10.1093/acprof:osobl/9780199837427.003.0003","DOIUrl":"https://doi.org/10.1093/acprof:osobl/9780199837427.003.0003","url":null,"abstract":"Globalization creates pressure for increased international cooperation, and to reap the benefits of collective action, international cooperation is likely to take forms that resemble those of the American administrative state. An international regulatory regime generally will need to reach all activity, regardless of each individual nation’s internal hierarchy of authority. Although relatively new to the international scene, these forms and orders should sound familiar to students of the American administrative state. Just as new international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords, for example, had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm, as discussed in Wickard v. Filburn. The New Deal’s stretching of constitutional doctrine sparked a confrontation between President Franklin D. Roosevelt (FDR) and the Supreme Court, which initially espoused a narrower and less flexible vision of federal power and the role of administrative agencies. Without a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law. This article will offer the outlines of such a theory.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"32 1","pages":"431"},"PeriodicalIF":0.0,"publicationDate":"2011-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654938","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}
Over the past two decades, nineteen states have established specialized trial courts that hear business disputes primarily or exclusively. To explain the recent surge of interest in these courts, policy-makers and scholars alike have cited the process of inter-jurisdictional competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, re-incorporate, or litigate their disputes in the jurisdiction that created the business court. This Article critically evaluates each of these theories. It argues, first, that business courts do not serve to attract companies from other states because business expansion decisions in the United States are rarely driven by the high quality of the courts in a particular jurisdiction. It next argues that business courts are unlikely to attract incorporation business because their core attributes are such that they are unlikely to compete successfully with the Delaware Court of Chancery. The Article goes on to argue that while the creation of a business court may in some cases serve to divert litigation business to local lawyers, the opportunities for diversion are relatively limited. The Article then draws upon these insights to offer a number of suggestions as to how future business courts should be designed. It suggests that states should think twice before creating business and technology courts. It notes that major institutional reforms will be required if states wish to use business courts to attract incorporation business away from Delaware. It also identifies additional steps that states might take to more effectively attract litigation business. The Article concludes by briefly evaluating the viability of several non-competition-based rationales for establishing business courts.
{"title":"Business Courts and Interstate Competition","authors":"J. Coyle","doi":"10.2139/SSRN.1928108","DOIUrl":"https://doi.org/10.2139/SSRN.1928108","url":null,"abstract":"Over the past two decades, nineteen states have established specialized trial courts that hear business disputes primarily or exclusively. To explain the recent surge of interest in these courts, policy-makers and scholars alike have cited the process of inter-jurisdictional competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, re-incorporate, or litigate their disputes in the jurisdiction that created the business court. This Article critically evaluates each of these theories. It argues, first, that business courts do not serve to attract companies from other states because business expansion decisions in the United States are rarely driven by the high quality of the courts in a particular jurisdiction. It next argues that business courts are unlikely to attract incorporation business because their core attributes are such that they are unlikely to compete successfully with the Delaware Court of Chancery. The Article goes on to argue that while the creation of a business court may in some cases serve to divert litigation business to local lawyers, the opportunities for diversion are relatively limited. The Article then draws upon these insights to offer a number of suggestions as to how future business courts should be designed. It suggests that states should think twice before creating business and technology courts. It notes that major institutional reforms will be required if states wish to use business courts to attract incorporation business away from Delaware. It also identifies additional steps that states might take to more effectively attract litigation business. The Article concludes by briefly evaluating the viability of several non-competition-based rationales for establishing business courts.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"53 1","pages":"1915"},"PeriodicalIF":0.0,"publicationDate":"2011-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67795915","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}
Patent law is in flux, with recent disputes and change in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. However, upon a closer look, many of the cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements as to what exactly is the “invention” the courts should be considering.There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, where courts define the invention by the detailed technology discussion in the patent specification’s descriptions and drawings. Other decisions invoke a “claim-centered invention” definition that relies almost exclusively on the claim, a single sentence at the end of the patent. These two definitions can be judged against common patent theories to determine which best fits the theories’ narratives. The external invention definition, by grounding exclusivity around what the inventor has actually done or plans to do, is more likely to cause the patent to operate as these theories assume. And once a definition of invention is selected, doctrinal conflicts and ambiguities are more easily resolvable.
{"title":"What is the 'Invention'?","authors":"C. Cotropia","doi":"10.2139/SSRN.1918841","DOIUrl":"https://doi.org/10.2139/SSRN.1918841","url":null,"abstract":"Patent law is in flux, with recent disputes and change in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. However, upon a closer look, many of the cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements as to what exactly is the “invention” the courts should be considering.There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, where courts define the invention by the detailed technology discussion in the patent specification’s descriptions and drawings. Other decisions invoke a “claim-centered invention” definition that relies almost exclusively on the claim, a single sentence at the end of the patent. These two definitions can be judged against common patent theories to determine which best fits the theories’ narratives. The external invention definition, by grounding exclusivity around what the inventor has actually done or plans to do, is more likely to cause the patent to operate as these theories assume. And once a definition of invention is selected, doctrinal conflicts and ambiguities are more easily resolvable.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"53 1","pages":"1855"},"PeriodicalIF":0.0,"publicationDate":"2011-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1918841","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67784487","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}
Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions.
{"title":"On the Evasion of Executive Term Limits","authors":"Tom Ginsburg, J. Melton, Zachary Elkins","doi":"10.26153/TSW/2241","DOIUrl":"https://doi.org/10.26153/TSW/2241","url":null,"abstract":"Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"52 1","pages":"1807-1872"},"PeriodicalIF":0.0,"publicationDate":"2011-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69258384","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 American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it. Yet mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the pre-emption of state law causes of action, just to name a few. Although these restrictions in some instances may provide necessary correctives to the system of private litigation in particular and the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to undermine systematically substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention.This Article thus offers a more systemic view of these mechanisms of private enforcement by providing elements of a conceptual framework for tailoring mechanisms of private litigation to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private mechanisms with the regulatory goals of particular areas of substantive law, and at the same time seeks to balance the value of such mechanisms with concerns that they will, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering a systemic view of various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to the achievement of public regulatory objectives.
{"title":"The Structural Role of Private Enforcement Mechanisms in Public Law","authors":"J. Glover","doi":"10.2139/SSRN.1791897","DOIUrl":"https://doi.org/10.2139/SSRN.1791897","url":null,"abstract":"The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it. Yet mechanisms of enforcement attendant to private suits are being restricted in numerous ways, and on numerous fronts, in the form of prohibitions on the use of the class action device, the recalibration of procedural mechanisms through private contract to discourage suit, the heightening of pleading standards, and the pre-emption of state law causes of action, just to name a few. Although these restrictions in some instances may provide necessary correctives to the system of private litigation in particular and the functioning of overall regulatory schemes more generally, in their broad-sweeping forms, they threaten to undermine systematically substantive regulatory law. Yet the larger regulatory consequences of these efforts receive inadequate attention.This Article thus offers a more systemic view of these mechanisms of private enforcement by providing elements of a conceptual framework for tailoring mechanisms of private litigation to the contours of particular regulatory regimes. This framework seeks to effectuate and extend the systemic interests in aligning private mechanisms with the regulatory goals of particular areas of substantive law, and at the same time seeks to balance the value of such mechanisms with concerns that they will, in some substantive regimes, generate undesired regulatory consequences. Indeed, this framework highlights the need, in some instances, for limitations on the use of private enforcement mechanisms, as well as the need, in other circumstances, for the creation of new mechanisms that are more carefully calibrated to address potential pathologies. This framework is therefore preferable to one-size-fits-all, abstract approaches to a number of seemingly disparate debates regarding restrictions on private enforcement mechanisms across our legal landscape. By offering a systemic view of various debates about these mechanisms, this framework offers the hope of eventual resolution of these seemingly intractable disputes. This framework also seeks to provide guidance to judges, agencies, and legislatures in the task of tailoring mechanisms of private enforcement to the achievement of public regulatory objectives.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"53 1","pages":"1137"},"PeriodicalIF":0.0,"publicationDate":"2011-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746325","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}
TABLE OF CONTENTS I. A DEFINING CHALLENGE A. The Founding Vision 1. The Federalists' "Ark of Safety" B. Removing a Disabled Judge: The Pickering Case C. The Impeachment of Justice Chase: Are Justices Different? 1. How To Remove a Justice CONCLUSION I. A DEFINING CHALLENGE The independence of the judiciary is an enduring and defining objective of the legal profession. We lawyers, of all citizens, have the greatest stake in shielding judges from intimidation or reward. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession. (1) The integrity of law and legal institutions requires more than just the protection of judges. It is equally dependent on the willingness and ability of judges to maintain virtuous disinterest in their work. (2) Some might explain their occasional failings as manifestations of the original sin inherited from Adam; (3) whatever their source, the proclivities of judges to indulge or celebrate themselves are perpetual temptations and judicial self-restraint is a perpetual challenge. As Cardozo explained: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (4) A primary and indispensable constraint on those who judge is the moral constraint imposed by the professional community to which they belong. The primary function of transparency in proceedings at trials and arguments, and of published decisions and opinions explicating judges' rulings, is to manifest their disinterest not only to the parties whose contentions they judge, but also to their lawyers, who share responsibility for imposing moral judgment on the professionalism of judges. (5) Judicial disinterest may have been made increasingly difficult in the twentieth century by the replacement of legal formalism with a legal realism that commissions judges to be less constrained by preexisting texts and more attentive to the social consequences of their judgments. (6) A secondary effect may be to inflate the collective vanity of the judiciary. The greater freedom judges assert in taking account of the social consequences of their decisions, the harder it may be for them to lay aside their personal political preferences, the related interests of their friends and allies, and the adoration or hostility of a public that either celebrates or attacks them, depending on the reaction to the policy consequences of their decisions. There is, to be sure, no empirical evidence of this effect, but it is reasonable to suspect that it occurs and contributes to public concerns about possible excesses of judicial independence. As judicial virtue has become more difficult to practice, it has become more in need. The present and rising mistrust of the American judiciary is not a direct consequence of the change in legal philosophy, but there is an obvious connection. As judges have increasingly and openly presumed to shape our polity, citizens who disagree w
{"title":"Original Sin and Judicial Independence: Providing Accountability for Justices","authors":"Paul D. Carrington, R. C. Cramton","doi":"10.31228/osf.io/ut8je","DOIUrl":"https://doi.org/10.31228/osf.io/ut8je","url":null,"abstract":"TABLE OF CONTENTS I. A DEFINING CHALLENGE A. The Founding Vision 1. The Federalists' \"Ark of Safety\" B. Removing a Disabled Judge: The Pickering Case C. The Impeachment of Justice Chase: Are Justices Different? 1. How To Remove a Justice CONCLUSION I. A DEFINING CHALLENGE The independence of the judiciary is an enduring and defining objective of the legal profession. We lawyers, of all citizens, have the greatest stake in shielding judges from intimidation or reward. And that task of protecting judicial independence stands today at the very top of the agenda of the American legal profession. (1) The integrity of law and legal institutions requires more than just the protection of judges. It is equally dependent on the willingness and ability of judges to maintain virtuous disinterest in their work. (2) Some might explain their occasional failings as manifestations of the original sin inherited from Adam; (3) whatever their source, the proclivities of judges to indulge or celebrate themselves are perpetual temptations and judicial self-restraint is a perpetual challenge. As Cardozo explained: \"The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.\" (4) A primary and indispensable constraint on those who judge is the moral constraint imposed by the professional community to which they belong. The primary function of transparency in proceedings at trials and arguments, and of published decisions and opinions explicating judges' rulings, is to manifest their disinterest not only to the parties whose contentions they judge, but also to their lawyers, who share responsibility for imposing moral judgment on the professionalism of judges. (5) Judicial disinterest may have been made increasingly difficult in the twentieth century by the replacement of legal formalism with a legal realism that commissions judges to be less constrained by preexisting texts and more attentive to the social consequences of their judgments. (6) A secondary effect may be to inflate the collective vanity of the judiciary. The greater freedom judges assert in taking account of the social consequences of their decisions, the harder it may be for them to lay aside their personal political preferences, the related interests of their friends and allies, and the adoration or hostility of a public that either celebrates or attacks them, depending on the reaction to the policy consequences of their decisions. There is, to be sure, no empirical evidence of this effect, but it is reasonable to suspect that it occurs and contributes to public concerns about possible excesses of judicial independence. As judicial virtue has become more difficult to practice, it has become more in need. The present and rising mistrust of the American judiciary is not a direct consequence of the change in legal philosophy, but there is an obvious connection. As judges have increasingly and openly presumed to shape our polity, citizens who disagree w","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"50 1","pages":"1105"},"PeriodicalIF":0.0,"publicationDate":"2009-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640619","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}
We identify and document instances of "occupation constitutions," those drafted under conditions of foreign military occupation. Not every occupation produces a constitution, and it appears that certain occupying powers have a greater propensity to encourage or force a constitution-writing process. We anticipate ex ante that occupation constitutions should be less enduring, and provide some supportive evidence to this effect. Some occupation constitutions do endure, however, and we conduct a case study of the Japanese Constitution of 1946. We argue that it had a self-enforcing quality that has allowed it to endure un-amended for over six decades. Unlike conventional understandings of that document as an American imposition that imposed foreign values, we argue that Japanese participation in the adoption process, and familiarity with some of the rights provisions that had already appeared in the Meiji Constitution, helped make the document self-enforcing. Most important of all, however, was that it embodied a political bargain that fit the basic cleavages in Japanese society.
{"title":"Baghdad, Tokyo, Kabul,...: Constitution Making in Occupied States","authors":"Zachary Elkins, Tom Ginsburg, J. Melton","doi":"10.26153/TSW/2249","DOIUrl":"https://doi.org/10.26153/TSW/2249","url":null,"abstract":"We identify and document instances of \"occupation constitutions,\" those drafted under conditions of foreign military occupation. Not every occupation produces a constitution, and it appears that certain occupying powers have a greater propensity to encourage or force a constitution-writing process. We anticipate ex ante that occupation constitutions should be less enduring, and provide some supportive evidence to this effect. Some occupation constitutions do endure, however, and we conduct a case study of the Japanese Constitution of 1946. We argue that it had a self-enforcing quality that has allowed it to endure un-amended for over six decades. Unlike conventional understandings of that document as an American imposition that imposed foreign values, we argue that Japanese participation in the adoption process, and familiarity with some of the rights provisions that had already appeared in the Meiji Constitution, helped make the document self-enforcing. Most important of all, however, was that it embodied a political bargain that fit the basic cleavages in Japanese society.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"49 1","pages":"1139"},"PeriodicalIF":0.0,"publicationDate":"2007-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69258428","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}
Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal courts. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other "political" offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial "parity" debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts - and in perceptions of the quality of those courts. Broader issues of federalism are at stake as well - particularly the "laboratory" value of state experimentation in seeking the optimal balance between accountability and rule of law values. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.
{"title":"Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?","authors":"George D. Brown","doi":"10.2139/ssrn.1008952","DOIUrl":"https://doi.org/10.2139/ssrn.1008952","url":null,"abstract":"Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal courts. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other \"political\" offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial \"parity\" debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts - and in perceptions of the quality of those courts. Broader issues of federalism are at stake as well - particularly the \"laboratory\" value of state experimentation in seeking the optimal balance between accountability and rule of law values. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"49 1","pages":"1543-1620"},"PeriodicalIF":0.0,"publicationDate":"2007-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68123242","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 Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply. The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value. Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles. The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.
{"title":"Inefficient Customs in International Law","authors":"E. Kontorovich","doi":"10.2139/SSRN.969831","DOIUrl":"https://doi.org/10.2139/SSRN.969831","url":null,"abstract":"This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply. The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value. Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles. The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"48 1","pages":"859-922"},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.969831","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915632","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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