This article raises a question that is rarely asked: Do outcomes (reversal/affirmance/remand rates) on appeal from administrative decisions bear a predictable relationship to the relevant scope of review standard? It turns out that the answer is both yes and no and that in two very active review systems (district court review over Social Security disability and FOIA decisions) the results run counter to what one might surmise based on the relative intensity of the review standards. While conclusions are carefully and necessarily hedged, the subject yields hypotheses worthy of further analysis.
{"title":"An Outcomes Analysis of Scope of Review Standards","authors":"Paul R. Verkuil","doi":"10.2139/SSRN.373561","DOIUrl":"https://doi.org/10.2139/SSRN.373561","url":null,"abstract":"This article raises a question that is rarely asked: Do outcomes (reversal/affirmance/remand rates) on appeal from administrative decisions bear a predictable relationship to the relevant scope of review standard? It turns out that the answer is both yes and no and that in two very active review systems (district court review over Social Security disability and FOIA decisions) the results run counter to what one might surmise based on the relative intensity of the review standards. While conclusions are carefully and necessarily hedged, the subject yields hypotheses worthy of further analysis.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"679"},"PeriodicalIF":0.0,"publicationDate":"2003-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68632327","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 Americans with Disabilities Act (ADA) requires private employers to offer reasonable accommodation to disabled persons capable of performing the core elements of a job. Some economists have attacked the statute as ill-advised and inefficient. In examining the efficiency of the ADA, this article analyzes its cost-effectiveness against the following social and legal background conditions: First, society will honor a minimum commitment to provide basic support to persons - including the medically disabled - who, through no fault of their own, cannot earn enough to maintain a minimally decent standard of living. Second, legal and pragmatic factors, including "sticky" or rigid compensation schedules and job classifications, sometimes prevent employers from paying wages that perfectly reflect workers' marginal productivity. Because disabilities sometimes compromise productivity or require costly accommodations, employers may find it difficult to avoid overpaying some disabled employees who "otherwise qualify" for particular jobs. The article argues that effective enforcement of the ADA under these conditions will often be efficient for society as a whole, but may not be for all employers. That is, the ADA will sometimes create a divergence between private and social benefits. Because the ADA mandates that employers hire and accommodate workers they otherwise would shun as too expensive, the statute avoids the dead-weight loss, generated by imperfections in labor markets, of keeping potentially productive disabled persons in idleness. But because many disabled workers hired under the ADA's commands are likely to be paid "too much," the statute effectively shifts from the public at large to employers the expense of subsidizing disabled workers - including, most notably, those workers whose earnings, if truly reflective of net productivity, would otherwise be too meager to sustain a decent standard of living. In short, the ADA, although good for potentially productive disabled persons and for taxpayers, is potentially unfair to employers. The article examines some implications of these observations for reforming and restructuring the ADA. It also explores the suggestion, which arguably follows from its analysis, that many disabled persons - like other persons who, for reasons unrelated to medical disability, are not productive enough to achieve full economic self-sufficiency - should be regarded as having an obligation, as well as a right, to contribute something to their own support through work.
{"title":"Disability, Reciprocity, and \"Real Efficiency\": A Unified Approach","authors":"Amy Wax","doi":"10.2139/SSRN.358621","DOIUrl":"https://doi.org/10.2139/SSRN.358621","url":null,"abstract":"The Americans with Disabilities Act (ADA) requires private employers to offer reasonable accommodation to disabled persons capable of performing the core elements of a job. Some economists have attacked the statute as ill-advised and inefficient. In examining the efficiency of the ADA, this article analyzes its cost-effectiveness against the following social and legal background conditions: First, society will honor a minimum commitment to provide basic support to persons - including the medically disabled - who, through no fault of their own, cannot earn enough to maintain a minimally decent standard of living. Second, legal and pragmatic factors, including \"sticky\" or rigid compensation schedules and job classifications, sometimes prevent employers from paying wages that perfectly reflect workers' marginal productivity. Because disabilities sometimes compromise productivity or require costly accommodations, employers may find it difficult to avoid overpaying some disabled employees who \"otherwise qualify\" for particular jobs. The article argues that effective enforcement of the ADA under these conditions will often be efficient for society as a whole, but may not be for all employers. That is, the ADA will sometimes create a divergence between private and social benefits. Because the ADA mandates that employers hire and accommodate workers they otherwise would shun as too expensive, the statute avoids the dead-weight loss, generated by imperfections in labor markets, of keeping potentially productive disabled persons in idleness. But because many disabled workers hired under the ADA's commands are likely to be paid \"too much,\" the statute effectively shifts from the public at large to employers the expense of subsidizing disabled workers - including, most notably, those workers whose earnings, if truly reflective of net productivity, would otherwise be too meager to sustain a decent standard of living. In short, the ADA, although good for potentially productive disabled persons and for taxpayers, is potentially unfair to employers. The article examines some implications of these observations for reforming and restructuring the ADA. It also explores the suggestion, which arguably follows from its analysis, that many disabled persons - like other persons who, for reasons unrelated to medical disability, are not productive enough to achieve full economic self-sufficiency - should be regarded as having an obligation, as well as a right, to contribute something to their own support through work.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"1421"},"PeriodicalIF":0.0,"publicationDate":"2002-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68609437","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 State of the Union and Recommendation Clauses of Article II, Section 3 provide that the President shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient. Those thirty-one words envision the President as an active participant in the embryonic stages of the making of laws. Eight separate principles animate the President's legislative responsibilities before the presentment process. The State of the Union Clause imposes an executive duty on the President. That duty must be discharged periodically. The President's assessment of the State of the Union must be publicized to Congress, and thus to the nation. The publication of the President's assessment conveys information to Congress - information uniquely gleaned from the President's perspective in his various roles as Commander-in-Chief, chief law enforcer, negotiator with foreign powers, and the like - that shall aid the legislature in public deliberation on matters that may justify the enactment of legislation because of their national importance. The Recommendation Clause also imposes an executive duty on the President. His recommendations respect the equal dignity of Congress and thus embody the anti-royalty sentiment that ignited the American Revolution and subsequently stripped the trappings of monarchy away from the new chief executive. Through his recommendations to Congress, the President speaks collectively for the People as they petition Government for a redress of grievances, and thus his recommendations embody popular sovereignty. The President tailors his recommendations so that their natural implication is the enactment of new legislation, rather then some other action that Congress might undertake. Finally, the President shall have executive discretion to recommend measures of his choosing. When the State of the Union and Recommendation Clauses are seen to have this textual and analytical subtlety, they reveal the sophistication of the Framer's design that the President, through his institutionally unique ability to acquire and analyze information valuable to the leadership of the Republic, would have more to contribute to the making of laws than merely to sign off on their creation by another branch. Far from making the President a cipher in the legislative process, the Constitution created a Legislator-in-Chief.
{"title":"The Legislator-in-Chief","authors":"Vasan Kesavan, J. Sidak","doi":"10.2139/SSRN.310163","DOIUrl":"https://doi.org/10.2139/SSRN.310163","url":null,"abstract":"The State of the Union and Recommendation Clauses of Article II, Section 3 provide that the President shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient. Those thirty-one words envision the President as an active participant in the embryonic stages of the making of laws. Eight separate principles animate the President's legislative responsibilities before the presentment process. The State of the Union Clause imposes an executive duty on the President. That duty must be discharged periodically. The President's assessment of the State of the Union must be publicized to Congress, and thus to the nation. The publication of the President's assessment conveys information to Congress - information uniquely gleaned from the President's perspective in his various roles as Commander-in-Chief, chief law enforcer, negotiator with foreign powers, and the like - that shall aid the legislature in public deliberation on matters that may justify the enactment of legislation because of their national importance. The Recommendation Clause also imposes an executive duty on the President. His recommendations respect the equal dignity of Congress and thus embody the anti-royalty sentiment that ignited the American Revolution and subsequently stripped the trappings of monarchy away from the new chief executive. Through his recommendations to Congress, the President speaks collectively for the People as they petition Government for a redress of grievances, and thus his recommendations embody popular sovereignty. The President tailors his recommendations so that their natural implication is the enactment of new legislation, rather then some other action that Congress might undertake. Finally, the President shall have executive discretion to recommend measures of his choosing. When the State of the Union and Recommendation Clauses are seen to have this textual and analytical subtlety, they reveal the sophistication of the Framer's design that the President, through his institutionally unique ability to acquire and analyze information valuable to the leadership of the Republic, would have more to contribute to the making of laws than merely to sign off on their creation by another branch. Far from making the President a cipher in the legislative process, the Constitution created a Legislator-in-Chief.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"52 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2002-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.310163","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561638","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 article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with increasing wealth disparities and the shrinking of social welfare programs. It argues that diminished legal resources for the poor are best understood in the context of the structural inequities and the normative biases by which goods and services are delivered to the needy. It reviews the principles of the welfare state as well as charity for the purposes of examining their relevance to legal services for the poor and the deficiencies that result from either method of largess. The article concludes with a recognition that although the current political realities reduce the possibilities for decommodifying the law, corrective measures to expand access to the law are both necessary and possible.
{"title":"Law as Largess: Shifting Paradigms of Law for the Poor","authors":"Deborah M. Weissman","doi":"10.2139/SSRN.348521","DOIUrl":"https://doi.org/10.2139/SSRN.348521","url":null,"abstract":"The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with increasing wealth disparities and the shrinking of social welfare programs. It argues that diminished legal resources for the poor are best understood in the context of the structural inequities and the normative biases by which goods and services are delivered to the needy. It reviews the principles of the welfare state as well as charity for the purposes of examining their relevance to legal services for the poor and the deficiencies that result from either method of largess. The article concludes with a recognition that although the current political realities reduce the possibilities for decommodifying the law, corrective measures to expand access to the law are both necessary and possible.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"737"},"PeriodicalIF":0.0,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.348521","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68597857","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}
When Congress enacted the Americans with Disabilities Act (ADA) in 1990, disability rights supporters hailed the law as a radical shift in our nation's policy toward people with disabilities. Today, however, the statute's impact, at least in the employment area seems anything but radical. Many explain this disconnect as resulting from a "backlash" against the ADA and particularly a set of judicial decisions in which courts have imposed their own retrograde views of the proper response to disability on a statute that decisively rejects those views. This article challenges that explanation. While many of the disability rights advocates who assisted in drafting and lobbying for the statute shared a basic commitment to society's responsibility to alter its institutions to make all opportunities accessible to all - a commitment that the courts have not well assimilated - those who urged passage of the statute relied to a significant extent on a distinct argument that rests in some tension with that commitment. Throughout the extensive consideration of the ADA, the bill's supporters consistently argued that the statute was necessary to reduce the high societal cost of dependency by moving people with disabilities off of the public assistance rolls and into the workforce. If the "basic premise" of the ADA is seen as the imperative to reduce the cost of dependency of people with disabilities, then many of the courts' restrictive decisions begin to make sense. Roughly put, those decisions limit the statute's protections to individuals who would be largely unable to work without them, and they limit required accommodations to those that are necessary to move those individuals into the workforce in a reasonably cost-effective manner. The point of this article is not to endorse those restrictive decisions but rather to unearth the avoiding-dependency basis for the ADA and begin the process of demonstrating its inadequacy as a guide to disability employment policy. To the extent that the ADA has failed to bring more people with disabilities into the workforce, that failure has as much to do with its own inherent limitations as with judges' refusal to accept the statute's basic premises. While civil rights protections for people with disabilities are essential to serve many purposes, they are not and cannot be the exclusive means of assuring meaningful employment for the maximal number of people with disabilities. The issue remains an important one because disability rights advocates' reliance on avoiding-dependency arguments in lobbying for the ADA was not merely a tactical decision that had some unfortunate effects. Those arguments drew directly on a set of ideas, indigenous to the disability rights movement, that served a crucial purpose both in obtaining wider public support for the disability rights movement and in creating a disability rights movement in the first place. As the restrictive development of ADA case law makes clear, however, framing disabil
{"title":"The Americans with Disabilities Act as Welfare Reform","authors":"S. Bagenstos","doi":"10.2139/SSRN.311400","DOIUrl":"https://doi.org/10.2139/SSRN.311400","url":null,"abstract":"When Congress enacted the Americans with Disabilities Act (ADA) in 1990, disability rights supporters hailed the law as a radical shift in our nation's policy toward people with disabilities. Today, however, the statute's impact, at least in the employment area seems anything but radical. Many explain this disconnect as resulting from a \"backlash\" against the ADA and particularly a set of judicial decisions in which courts have imposed their own retrograde views of the proper response to disability on a statute that decisively rejects those views. This article challenges that explanation. While many of the disability rights advocates who assisted in drafting and lobbying for the statute shared a basic commitment to society's responsibility to alter its institutions to make all opportunities accessible to all - a commitment that the courts have not well assimilated - those who urged passage of the statute relied to a significant extent on a distinct argument that rests in some tension with that commitment. Throughout the extensive consideration of the ADA, the bill's supporters consistently argued that the statute was necessary to reduce the high societal cost of dependency by moving people with disabilities off of the public assistance rolls and into the workforce. If the \"basic premise\" of the ADA is seen as the imperative to reduce the cost of dependency of people with disabilities, then many of the courts' restrictive decisions begin to make sense. Roughly put, those decisions limit the statute's protections to individuals who would be largely unable to work without them, and they limit required accommodations to those that are necessary to move those individuals into the workforce in a reasonably cost-effective manner. The point of this article is not to endorse those restrictive decisions but rather to unearth the avoiding-dependency basis for the ADA and begin the process of demonstrating its inadequacy as a guide to disability employment policy. To the extent that the ADA has failed to bring more people with disabilities into the workforce, that failure has as much to do with its own inherent limitations as with judges' refusal to accept the statute's basic premises. While civil rights protections for people with disabilities are essential to serve many purposes, they are not and cannot be the exclusive means of assuring meaningful employment for the maximal number of people with disabilities. The issue remains an important one because disability rights advocates' reliance on avoiding-dependency arguments in lobbying for the ADA was not merely a tactical decision that had some unfortunate effects. Those arguments drew directly on a set of ideas, indigenous to the disability rights movement, that served a crucial purpose both in obtaining wider public support for the disability rights movement and in creating a disability rights movement in the first place. As the restrictive development of ADA case law makes clear, however, framing disabil","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"921"},"PeriodicalIF":0.0,"publicationDate":"2002-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.311400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68563432","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 Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.
{"title":"The Common Law Genius of the Warren Court","authors":"D. Strauss","doi":"10.2139/SSRN.315682","DOIUrl":"https://doi.org/10.2139/SSRN.315682","url":null,"abstract":"The Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court \"made it up,\" and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a common law court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as common law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the common law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a common law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"49 1","pages":"845"},"PeriodicalIF":0.0,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68567191","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 looks at the relationships between three separate legal doctrines that deal with commercial activity by tax-exempt charities: the "commerciality doctrine" (which governs when commercial activity endangers tax exemption); the unrelated business income tax (which taxes some commercial activity); and the Moline Properties corporate-separate-identity rule (which governs how commercial activity by a subsidiary in a complex structure affects a parent or sibling corporation). After reviewing the current state of legal doctrine in these three areas and concluding that current doctrine is inadequate and contradictory, the article turns to reconstructing the applicable rules in light of the public policy concerns raised with respect to commercial activity by charities. The article identifies six potential policy concerns: (1) unfair competition between exempt and for-profit organizations; (2) protection of the corporate tax base; (3) managerial diversion from charitable mission; (4) economic efficiency; (5) measuring the worth and need for tax subsidies by exempt organizations; and (6) protecting charitable assets from liabilities generated by for-profit business activities. The article then contrasts how two different general approaches to dealing with commercial activity by charities affect these six policy concerns. The two general approaches are permitting such activity to continue tax-free in order to provide additional tax subsidies to exempt organizations versus restricting such activity by expanding the UBIT into a general commercial-activity tax. The article concludes that the best solution to the policy concerns raised by commercial activity is to radically restructure the underlying tests for tax exemption; in absence of such radical restructuring, the article suggests that the next best approach is to restrict commercial activity by expansion of the UBIT, and provides specific doctrinal suggestions for implementing such a "commerciality tax". The article also suggests that under either suggested solution, both the commerciality doctrine and corporate-seprate-identity rule as applied to exempt status should be repealed.
{"title":"Commercial Activity and Charitable Tax-Exemption","authors":"J. Colombo","doi":"10.2139/SSRN.310070","DOIUrl":"https://doi.org/10.2139/SSRN.310070","url":null,"abstract":"This article looks at the relationships between three separate legal doctrines that deal with commercial activity by tax-exempt charities: the \"commerciality doctrine\" (which governs when commercial activity endangers tax exemption); the unrelated business income tax (which taxes some commercial activity); and the Moline Properties corporate-separate-identity rule (which governs how commercial activity by a subsidiary in a complex structure affects a parent or sibling corporation). After reviewing the current state of legal doctrine in these three areas and concluding that current doctrine is inadequate and contradictory, the article turns to reconstructing the applicable rules in light of the public policy concerns raised with respect to commercial activity by charities. The article identifies six potential policy concerns: (1) unfair competition between exempt and for-profit organizations; (2) protection of the corporate tax base; (3) managerial diversion from charitable mission; (4) economic efficiency; (5) measuring the worth and need for tax subsidies by exempt organizations; and (6) protecting charitable assets from liabilities generated by for-profit business activities. The article then contrasts how two different general approaches to dealing with commercial activity by charities affect these six policy concerns. The two general approaches are permitting such activity to continue tax-free in order to provide additional tax subsidies to exempt organizations versus restricting such activity by expanding the UBIT into a general commercial-activity tax. The article concludes that the best solution to the policy concerns raised by commercial activity is to radically restructure the underlying tests for tax exemption; in absence of such radical restructuring, the article suggests that the next best approach is to restrict commercial activity by expansion of the UBIT, and provides specific doctrinal suggestions for implementing such a \"commerciality tax\". The article also suggests that under either suggested solution, both the commerciality doctrine and corporate-seprate-identity rule as applied to exempt status should be repealed.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"487-568"},"PeriodicalIF":0.0,"publicationDate":"2002-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68561488","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}
Many formal discussions of judicial behavior employ a rational choice framework that presumes that judges are rational actors concerned only with improving their own welfare. This essay, prepared as the 2001 George P. Wythe Lecture at the William & Mary School of Law, suggests it may be both inappropriate and misleading to focus exclusively on self-interest as a judicial motivation. The social institution of the judiciary is premised on the expectation of a certain amount of judicial "altruism," in the form of a willingness to devote significant effort to deciding cases impartially and according to law even when external punishments and rewards are largely absent. This expectation rests on a solid empirical foundation: social scientists have compiled extensive evidence demonstrating that other-regarding behavior, including altruistic behavior, is both a common and a predictable phenomenon. As a result there may be much to be gained from formally incorporating the reality of other-regarding behavior into our accounts of the judiciary. As a first step in that direction, the essay reviews some of the voluminous evidence that has been compiled on when and why people display altruistic behavior in experimental games. It explores some implications for how we might better encourage judges largely insulated from external pressures to nevertheless decide cases carefully, impartially, and well.
{"title":"Judges as Altruistic Hierarchs","authors":"Lynn A. Stout","doi":"10.2139/SSRN.287458","DOIUrl":"https://doi.org/10.2139/SSRN.287458","url":null,"abstract":"Many formal discussions of judicial behavior employ a rational choice framework that presumes that judges are rational actors concerned only with improving their own welfare. This essay, prepared as the 2001 George P. Wythe Lecture at the William & Mary School of Law, suggests it may be both inappropriate and misleading to focus exclusively on self-interest as a judicial motivation. The social institution of the judiciary is premised on the expectation of a certain amount of judicial \"altruism,\" in the form of a willingness to devote significant effort to deciding cases impartially and according to law even when external punishments and rewards are largely absent. This expectation rests on a solid empirical foundation: social scientists have compiled extensive evidence demonstrating that other-regarding behavior, including altruistic behavior, is both a common and a predictable phenomenon. As a result there may be much to be gained from formally incorporating the reality of other-regarding behavior into our accounts of the judiciary. As a first step in that direction, the essay reviews some of the voluminous evidence that has been compiled on when and why people display altruistic behavior in experimental games. It explores some implications for how we might better encourage judges largely insulated from external pressures to nevertheless decide cases carefully, impartially, and well.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"43 1","pages":"1605"},"PeriodicalIF":0.0,"publicationDate":"2001-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68409468","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}
In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court held that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Since then, the Court has been essentially absent from the battle over affirmative action, but it has decided a series of cases involving race-conscious redistricting that may potentially change the way strict scrutiny actually operates. Faced with the prospect of applying a standard of review that would resegregate state legislatures and congressional delegations, the Supreme Court was unwilling to apply strict scrutiny strictly. First, it constricted the domain in which strict scrutiny comes into play at all, permitting race to be taken into account when it is one factor among many and its inclusion produces districts that do not deviate too greatly from those created for other groups. Second, it broadened the interests that can justify race-conscious redistricting, by holding that compliance with the Voting Rights Act's results and effects tests can serve as a compelling state interest. The understanding of political equality embodied in the Act goes beyond what the Constitution itself demands. It requires states to arrange their electoral institutions to minimize the lingering effects of prior unconstitutional discrimination not otherwise chargeable to them, as well as to mitigate the impact of racially polarized voting that involves otherwise constitutionally protected private choice. In short, the theory of strict scrutiny yielded to the need for an electoral system that is equally open to members of minority groups. Having explored the redistricting cases, this article then turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education. It identifies ways in which the admissions process more closely resembles redistricting, and therefore calls for a softer form of scrutiny, than it resembles the competitive bidding process at issue in cases like Adarand. And it suggests that Title VI-based disparate impact standards may perform a role similar to the Voting Rights Act in defining what counts as a compelling state interest.
在Adarand Constructors诉Pena案(515 U.S. 200, 1995)中，最高法院认为，所有由联邦、州或地方政府行为者强加的种族分类，都必须由审查法院在严格审查下进行分析。从那以后，最高法院基本上没有参与有关平权法案的斗争，但它裁决了一系列涉及种族意识重划选区的案件，这些案件可能会改变严格审查的实际运作方式。面对可能会使州立法机构和国会代表团重新隔离的审查标准，最高法院不愿严格执行严格的审查。首先，它限制了严格审查发挥作用的范围，允许在种族是众多因素之一的情况下考虑种族因素，而且纳入种族因素后产生的选区不会与为其他群体创建的选区偏离太大。其次，它认为遵守《投票权法案》的结果和效果测试可以作为一项令人信服的州利益，从而扩大了可以为种族意识重划选区辩护的利益。该法案所体现的对政治平等的理解超越了宪法本身的要求。它要求各州安排其选举机构，以尽量减少先前违宪歧视的挥之不去的影响，否则它们就不会受到指控，并减轻涉及宪法保护的私人选择的种族两极化投票的影响。简而言之，严格审查的理论让位于对少数群体成员同样开放的选举制度的需要。在探讨了重新划分选区的案例之后，本文接着转向法院是否以及如何将其理论创新转化为对高等教育平权行动的考虑。它指出，招生过程在某些方面更类似于重新划分选区，因此需要一种更温和的审查形式，而不是类似于阿达兰等案件中存在争议的竞争性招标过程。它表明，基于第六章的差别影响标准在定义什么是引人注目的州利益方面可能发挥类似于《投票权法案》的作用。
{"title":"Easing the Spring: Strict Scrutiny and Affirmative Action After the Redistricting Cases","authors":"Pamela S. Karlan","doi":"10.2139/SSRN.282570","DOIUrl":"https://doi.org/10.2139/SSRN.282570","url":null,"abstract":"In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court held that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Since then, the Court has been essentially absent from the battle over affirmative action, but it has decided a series of cases involving race-conscious redistricting that may potentially change the way strict scrutiny actually operates. Faced with the prospect of applying a standard of review that would resegregate state legislatures and congressional delegations, the Supreme Court was unwilling to apply strict scrutiny strictly. First, it constricted the domain in which strict scrutiny comes into play at all, permitting race to be taken into account when it is one factor among many and its inclusion produces districts that do not deviate too greatly from those created for other groups. Second, it broadened the interests that can justify race-conscious redistricting, by holding that compliance with the Voting Rights Act's results and effects tests can serve as a compelling state interest. The understanding of political equality embodied in the Act goes beyond what the Constitution itself demands. It requires states to arrange their electoral institutions to minimize the lingering effects of prior unconstitutional discrimination not otherwise chargeable to them, as well as to mitigate the impact of racially polarized voting that involves otherwise constitutionally protected private choice. In short, the theory of strict scrutiny yielded to the need for an electoral system that is equally open to members of minority groups. Having explored the redistricting cases, this article then turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education. It identifies ways in which the admissions process more closely resembles redistricting, and therefore calls for a softer form of scrutiny, than it resembles the competitive bidding process at issue in cases like Adarand. And it suggests that Title VI-based disparate impact standards may perform a role similar to the Voting Rights Act in defining what counts as a compelling state interest.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"43 1","pages":"1569"},"PeriodicalIF":0.0,"publicationDate":"2001-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68359387","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 article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by some as the model for a new non-national approach to lawmaking and dispute settlement applicable to a broader set of legal issues that transcend national borders. In this article, we describe the conditions that led to the UDRP's formation and consider whether the UDRP can and should be replicated elsewhere. The process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international lawmaking and dispute settlement. The UDRP is the product not of national legislation nor an international treaty, but rather of a web of contractual obligations imposed by a private, non-profit corporation with a monopoly over a valuable resource. Through its agreements with the U.S. Department of Commerce, ICANN serves as the gatekeeper for anyone seeking to acquire the most commercially valuable internet addresses. Exclusive control of access to the root server enables ICANN to dictate the terms and conditions for domain name ownership. This technological control also facilitates enforcement of UDRP panel decisions compelling domain name registrars to cancel ownership of contested domain names or transfer them from registrants to trademark owners. The UDRP deviates from preexisting lawmaking and dispute settlement paradigms in other ways that make its advantages considerable (and which may make it attractive for replication). For example, the UDRP is a hybrid dispute settlement system. It contains an amalgam of elements from three distinct decision making paradigms - judicial, arbitral and ministerial - and it draws inspiration from international, supranational, and national legal systems. The UDRP thus reveals how dispute settlement structures can be tailored to the needs of new technologies and new types of legal conflicts. The UDRP is also non-national. Neither its substantive content nor its prescriptive force necessarily depends upon the laws, institutions, and enforcement mechanisms of any single nation-state or treaty regime. It thus suggests ways to bypass the often slow and cumbersome mechanisms of national and international lawmaking and to fulfil the demand for effective dispute settlement mechanisms that, like so much current social activity, transcend national borders. Even assuming the UDRP can be applied to other situations where the conditions of
{"title":"Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy","authors":"L. Helfer, Graeme Dinwoodie","doi":"10.2139/SSRN.275468","DOIUrl":"https://doi.org/10.2139/SSRN.275468","url":null,"abstract":"The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by some as the model for a new non-national approach to lawmaking and dispute settlement applicable to a broader set of legal issues that transcend national borders. In this article, we describe the conditions that led to the UDRP's formation and consider whether the UDRP can and should be replicated elsewhere. The process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international lawmaking and dispute settlement. The UDRP is the product not of national legislation nor an international treaty, but rather of a web of contractual obligations imposed by a private, non-profit corporation with a monopoly over a valuable resource. Through its agreements with the U.S. Department of Commerce, ICANN serves as the gatekeeper for anyone seeking to acquire the most commercially valuable internet addresses. Exclusive control of access to the root server enables ICANN to dictate the terms and conditions for domain name ownership. This technological control also facilitates enforcement of UDRP panel decisions compelling domain name registrars to cancel ownership of contested domain names or transfer them from registrants to trademark owners. The UDRP deviates from preexisting lawmaking and dispute settlement paradigms in other ways that make its advantages considerable (and which may make it attractive for replication). For example, the UDRP is a hybrid dispute settlement system. It contains an amalgam of elements from three distinct decision making paradigms - judicial, arbitral and ministerial - and it draws inspiration from international, supranational, and national legal systems. The UDRP thus reveals how dispute settlement structures can be tailored to the needs of new technologies and new types of legal conflicts. The UDRP is also non-national. Neither its substantive content nor its prescriptive force necessarily depends upon the laws, institutions, and enforcement mechanisms of any single nation-state or treaty regime. It thus suggests ways to bypass the often slow and cumbersome mechanisms of national and international lawmaking and to fulfil the demand for effective dispute settlement mechanisms that, like so much current social activity, transcend national borders. Even assuming the UDRP can be applied to other situations where the conditions of","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"125 1","pages":"141"},"PeriodicalIF":0.0,"publicationDate":"2001-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.275468","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68290996","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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