In Hughes v. Fetter (1951), the Supreme Court ruled that state courts are ordinarily required — as a matter of the Full Faith and Credit Clause — to take jurisdiction of claims arising under sister state law, their own wishes notwithstanding. Hughes remains a foundational case for Conflict of Laws and interstate relations. It is said to embody principles that states should maximize each others’ policies, and cannot discriminate against sister state laws. This article argues that Hughes was wrong. The decision is not justified by history or precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ allowable preferences for enforcement of their own law over sister-state law. Rather, states should be under a much more limited duty, grounded in a litigant’s substantive entitlement to redress, rather than a duty not to discriminate against the law of sister states. Arguments for extension of a rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore not rely on the doubtful result in Hughes.
在Hughes v. Fetter(1951)一案中，最高法院裁定，根据《完全信任与信用条款》(Full Faith and Credit Clause)，州法院通常需要对姐妹州法律下产生的索赔采取管辖权，无论其自己的意愿如何。休斯仍然是法律冲突和州际关系的基础案例。据说，它体现了各州应最大限度地发挥彼此政策的原则，不能歧视姐妹州的法律。这篇文章认为休斯错了。根据该条款，这一决定既不符合历史或先例，也不符合政策最大化的基本原理。而且它的非歧视准则也不符合各州在执行自己的法律而不是姐妹州的法律时所允许的偏好。更确切地说，国家应该承担更有限的义务，以诉讼当事人获得补救的实质性权利为基础，而不是不歧视姐妹国家法律的义务。因此，在法律选择、公共政策和管辖权剥离设置方面，对其他主权国家法律的非歧视规则进行延伸的论点不应依赖于休斯案的可疑结果。
{"title":"Jurisdictional Discrimination and Full Faith and Credit","authors":"Ann Woolhandler, Michael G. Collins","doi":"10.2139/SSRN.2054645","DOIUrl":"https://doi.org/10.2139/SSRN.2054645","url":null,"abstract":"In Hughes v. Fetter (1951), the Supreme Court ruled that state courts are ordinarily required — as a matter of the Full Faith and Credit Clause — to take jurisdiction of claims arising under sister state law, their own wishes notwithstanding. Hughes remains a foundational case for Conflict of Laws and interstate relations. It is said to embody principles that states should maximize each others’ policies, and cannot discriminate against sister state laws. This article argues that Hughes was wrong. The decision is not justified by history or precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ allowable preferences for enforcement of their own law over sister-state law. Rather, states should be under a much more limited duty, grounded in a litigant’s substantive entitlement to redress, rather than a duty not to discriminate against the law of sister states. Arguments for extension of a rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore not rely on the doubtful result in Hughes.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"63 1","pages":"1023"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2054645","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67890946","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 provides the first systematic account of the relationship between campaign finance and federalism. Federalism — a fundamental characteristic of the constitutional structure — depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background. But the federalism and constitutional theory literatures lack a rigorous account of the effects of dramatic political change on pro-federalism political dynamics. Building that account is particularly timely now. Political safeguards work only if states retain significant political influence. But, as recent elections vividly demonstrate, Citizens United has created a new class of political operators — of which Super PACs are emblematic — whose potential political influence may be limitless. This article’s thesis is that Super PACs have the capacity to undermine all conventional political safeguards of federalism, pushing states far enough down the hierarchy of political influence to dramatically reshape the our system of government. This highlights the underappreciated extent to which Citizens United may have long-term structural consequences other than its effects on democratic representation. These developments have significant normative implications for federalism theory — at a minimum, they require reexamining the common assumption, central to numerous normative claims, that national political process is a durable channel for state self-defense. They also suggest new normative claims concerning campaign finance doctrine. If sustaining federalism is a compelling governmental interest, then federalism problems may justify new campaign spending restrictions despite the First Amendment and the reasoning of Citizens United, which otherwise appear to preclude further reforms.
{"title":"The Campaign Finance Safeguards of Federalism","authors":"Garrick B. Pursley","doi":"10.2139/SSRN.2227115","DOIUrl":"https://doi.org/10.2139/SSRN.2227115","url":null,"abstract":"This article provides the first systematic account of the relationship between campaign finance and federalism. Federalism — a fundamental characteristic of the constitutional structure — depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background. But the federalism and constitutional theory literatures lack a rigorous account of the effects of dramatic political change on pro-federalism political dynamics. Building that account is particularly timely now. Political safeguards work only if states retain significant political influence. But, as recent elections vividly demonstrate, Citizens United has created a new class of political operators — of which Super PACs are emblematic — whose potential political influence may be limitless. This article’s thesis is that Super PACs have the capacity to undermine all conventional political safeguards of federalism, pushing states far enough down the hierarchy of political influence to dramatically reshape the our system of government. This highlights the underappreciated extent to which Citizens United may have long-term structural consequences other than its effects on democratic representation. These developments have significant normative implications for federalism theory — at a minimum, they require reexamining the common assumption, central to numerous normative claims, that national political process is a durable channel for state self-defense. They also suggest new normative claims concerning campaign finance doctrine. If sustaining federalism is a compelling governmental interest, then federalism problems may justify new campaign spending restrictions despite the First Amendment and the reasoning of Citizens United, which otherwise appear to preclude further reforms.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"63 1","pages":"781"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68007054","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}
A substantial amount of research in recent decades has focused on the relationship between domestic violence and animal abuse. This research has shown that an abusive household often contains more than one victim, and that an abuser is likely to harm both his intimate partner and domestic animals in the home. The bulk of this research has focused on the degree to which these forms of abuse co-occur, the predictive utility of these statistics, and the effect that animal abuse has on a victim’s decision to leave the abusive household. Research findings in these areas have spawned a number of efforts to build upon this link to protect both humans and animals, such as including animals in protective orders, encouraging women’s shelters to accommodate companion animals, requiring cross-reporting between animal welfare and domestic agencies, and educating the public as to the potential risk implicated by an animal abuser in the home.By contrast, relatively little attention has been paid to a different aspect of the problem: the intentional abuse of animals as a method of domestic violence. Often, abusers exploit the close, emotional bond shared by a victim and her companion animal to inflict harm upon the human victim. The abuser may harm or kill the animal in order to harm the human; use threats against the animal to gain compliance or control over the human; or may use these methods in order to abuse the human or coerce her return after she leaves the household. These forms of abuse constitute one aspect of the broader pattern of control that characterizes an abusive relationship. The abuse of an animal is a potent source of harm and control: victims have described their anguish and despair at witnessing their partner torture their beloved animal in front of their eyes, and also frequently speak of how their concern for the animal obstructs their inability to leave the home. Because domestic violence shelters typically do not accept animals, a departing victim must leave her animal in the household. By doing so, she is left vulnerable to harm through the ongoing abuse of the animal — abuse that may force her to return to her abuser just to protect it.This Comment argues that domestic violence statutes must treat animal cruelty as a domestic violence offense, when committed with the purpose of harming or coercing the human victim. The law’s failure to do so leaves unregulated a powerful method of harm, and thus leaves unpunished the significant abuse of both humans and animals. Designating animal abuse as a domestic violence offense would plug a prominent gap in the current criminal approach to domestic violence, and would also make available a large number of specialized protective and rehabilitative measures available to domestic violence victims, such as protective orders, and mandatory therapy for the abuser. Moreover, implementing a domestic violence animal cruelty provision poses a relatively straightforward task, as the current statutory scheme
{"title":"The Abuse of Animals as a Method of Domestic Violence: The Need for Criminalization","authors":"V. Upadhya","doi":"10.2139/SSRN.2251994","DOIUrl":"https://doi.org/10.2139/SSRN.2251994","url":null,"abstract":"A substantial amount of research in recent decades has focused on the relationship between domestic violence and animal abuse. This research has shown that an abusive household often contains more than one victim, and that an abuser is likely to harm both his intimate partner and domestic animals in the home. The bulk of this research has focused on the degree to which these forms of abuse co-occur, the predictive utility of these statistics, and the effect that animal abuse has on a victim’s decision to leave the abusive household. Research findings in these areas have spawned a number of efforts to build upon this link to protect both humans and animals, such as including animals in protective orders, encouraging women’s shelters to accommodate companion animals, requiring cross-reporting between animal welfare and domestic agencies, and educating the public as to the potential risk implicated by an animal abuser in the home.By contrast, relatively little attention has been paid to a different aspect of the problem: the intentional abuse of animals as a method of domestic violence. Often, abusers exploit the close, emotional bond shared by a victim and her companion animal to inflict harm upon the human victim. The abuser may harm or kill the animal in order to harm the human; use threats against the animal to gain compliance or control over the human; or may use these methods in order to abuse the human or coerce her return after she leaves the household. These forms of abuse constitute one aspect of the broader pattern of control that characterizes an abusive relationship. The abuse of an animal is a potent source of harm and control: victims have described their anguish and despair at witnessing their partner torture their beloved animal in front of their eyes, and also frequently speak of how their concern for the animal obstructs their inability to leave the home. Because domestic violence shelters typically do not accept animals, a departing victim must leave her animal in the household. By doing so, she is left vulnerable to harm through the ongoing abuse of the animal — abuse that may force her to return to her abuser just to protect it.This Comment argues that domestic violence statutes must treat animal cruelty as a domestic violence offense, when committed with the purpose of harming or coercing the human victim. The law’s failure to do so leaves unregulated a powerful method of harm, and thus leaves unpunished the significant abuse of both humans and animals. Designating animal abuse as a domestic violence offense would plug a prominent gap in the current criminal approach to domestic violence, and would also make available a large number of specialized protective and rehabilitative measures available to domestic violence victims, such as protective orders, and mandatory therapy for the abuser. Moreover, implementing a domestic violence animal cruelty provision poses a relatively straightforward task, as the current statutory scheme","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"63 1","pages":"1163"},"PeriodicalIF":0.0,"publicationDate":"2013-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2251994","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68032973","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}
Is citizenship status a legitimate basis for allocating rights in the United States? In immigration law the right to remain is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers a normative and historical argument for a right to remain for noncitizens. This right should be granted to members of the society — those with significant connections, commitment, and obligations to the State. Citizenship status is one proxy for identifying members, but it can be both under- and over-inclusive. Numerous green-card holders are committed to, have strong connections to, and undertake obligations to the United States. Deporting these individuals for crimes like perjury, receipt of stolen property, or failure to appear in court can be excessively harsh. It can mean depriving “a man and his family of all that makes life worth while [sic].” The right to remain for noncitizens is based on two principles — connection and proportionality. The jus nexi principle provides a basis for identifying members of the polity. Members have a heightened liberty interest in remaining in the United States. Deportation for minor criminal activity is an illegitimate deprivation of the liberty interest to remain in the United States because it is disproportionate. The first comprehensive crime-based deportation regime in the United States was rooted in both the jus nexi principle and proportionality. Reliance on these foundational norms has diminished and must be restored to achieve a more just deportation regime. In order to realize this goal the right to remain cannot depend on citizenship status.
{"title":"The Normative & Historical Cases for Proportional Deportation","authors":"Angela M. Banks","doi":"10.2139/SSRN.2044801","DOIUrl":"https://doi.org/10.2139/SSRN.2044801","url":null,"abstract":"Is citizenship status a legitimate basis for allocating rights in the United States? In immigration law the right to remain is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers a normative and historical argument for a right to remain for noncitizens. This right should be granted to members of the society — those with significant connections, commitment, and obligations to the State. Citizenship status is one proxy for identifying members, but it can be both under- and over-inclusive. Numerous green-card holders are committed to, have strong connections to, and undertake obligations to the United States. Deporting these individuals for crimes like perjury, receipt of stolen property, or failure to appear in court can be excessively harsh. It can mean depriving “a man and his family of all that makes life worth while [sic].” The right to remain for noncitizens is based on two principles — connection and proportionality. The jus nexi principle provides a basis for identifying members of the polity. Members have a heightened liberty interest in remaining in the United States. Deportation for minor criminal activity is an illegitimate deprivation of the liberty interest to remain in the United States because it is disproportionate. The first comprehensive crime-based deportation regime in the United States was rooted in both the jus nexi principle and proportionality. Reliance on these foundational norms has diminished and must be restored to achieve a more just deportation regime. In order to realize this goal the right to remain cannot depend on citizenship status.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"62 1","pages":"1243"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67878471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” This Article reviews the government’s historical ability to force unwilling citizens to participate in government-sanctioned killings across a variety of contexts, and concludes that the right not to kill passes the Court’s stated tests, and does so even better than previously recognized rights. The right not to kill also fits squarely within the zone of individual decision making protected by the Court’s decisions in Casey and Lawrence.Recognition of a constitutional right, of course, does not mean that the right can never be infringed. Rather, as with most rights, the constitutional right not to kill can presumably be trumped by a sufficiently compelling government interest and a narrowly tailored law. In the vast majority of cases, however, the government will not be able to meet this test, leaving individuals free to decide for themselves whether they are willing to participate in government-sanctioned killings.
联邦和州政府参与和/或允许各种不同类型的杀戮。这些包括军事行动、死刑、协助自杀、堕胎和自卫或保护他人。在一个多元化的社会中，会有一些人拒绝参与某些或所有这些类型的杀戮是不足为奇的。政府应该如何对待这种拒绝，这个问题比共和国本身还要古老。自殖民时代以来，这个问题的答案在很大程度上受到法律保护的推动，宪法发挥的作用较小，特别是在最高法院1990年对就业部门诉史密斯案(Employment Division v. Smith)的裁决之后。这条条款为这个非常古老的问题提供了一个新的答案:联邦宪法规定的不杀人的权利，受到第五和第十四修正案的正当程序条款的保护。最高法院的实质性正当程序案件表明，某些未列举的权利如果“深深植根于国家的历史和传统”，就有资格受到宪法保护。本文回顾了政府在各种情况下强迫不情愿的公民参与政府批准的杀戮的历史能力，并得出结论认为，不杀人的权利通过了法院规定的检验，甚至比以前承认的权利做得更好。不杀人的权利也完全符合最高法院在凯西案和劳伦斯案中的判决所保护的个人决策范围。当然，承认一项宪法权利并不意味着该权利永远不会受到侵犯。相反，与大多数权利一样，宪法规定的不杀人的权利可能会被足够令人信服的政府利益和狭隘的法律所压倒。然而，在绝大多数情况下，政府将无法满足这一考验，让个人自由决定他们是否愿意参与政府批准的杀戮。
{"title":"The Constitutional Right Not to Kill","authors":"Mark L. Rienzi","doi":"10.2139/SSRN.2025281","DOIUrl":"https://doi.org/10.2139/SSRN.2025281","url":null,"abstract":"Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” This Article reviews the government’s historical ability to force unwilling citizens to participate in government-sanctioned killings across a variety of contexts, and concludes that the right not to kill passes the Court’s stated tests, and does so even better than previously recognized rights. The right not to kill also fits squarely within the zone of individual decision making protected by the Court’s decisions in Casey and Lawrence.Recognition of a constitutional right, of course, does not mean that the right can never be infringed. Rather, as with most rights, the constitutional right not to kill can presumably be trumped by a sufficiently compelling government interest and a narrowly tailored law. In the vast majority of cases, however, the government will not be able to meet this test, leaving individuals free to decide for themselves whether they are willing to participate in government-sanctioned killings.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"62 1","pages":"121"},"PeriodicalIF":0.0,"publicationDate":"2012-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2025281","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67863649","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 : 2011-09-01DOI: 10.1111/J.1467-9744.2011.01208.X
John Witte, D. Browning
The United States is the only nation, besides Somalia, not to ratify the 1989 United Nations Convention on Human Rights. This is ironic, given the leading role that American lawyers and diplomats played in creating the Convention. The leading opponents to ratification, it turns out, are conservative Christians who object to the idea of children’s rights altogether, or at least to international human rights protection of the child, and see these rights as a liberal threat to parental rights to nurture, educate, and discipline their own children. We argue, however, that many of these modern objections to children’s rights are misplaced, and fail to appreciate the classical and Christian roots of children’s rights and parental duties in the Western tradition. We call upon churches and states alike to embrace children’s rights more fully, and to offer at least qualified acceptance of the UN Convention.
{"title":"Christianity's Mixed Contributions to Children's Rights: Traditional Teachings, Modern Doubts","authors":"John Witte, D. Browning","doi":"10.1111/J.1467-9744.2011.01208.X","DOIUrl":"https://doi.org/10.1111/J.1467-9744.2011.01208.X","url":null,"abstract":"The United States is the only nation, besides Somalia, not to ratify the 1989 United Nations Convention on Human Rights. This is ironic, given the leading role that American lawyers and diplomats played in creating the Convention. The leading opponents to ratification, it turns out, are conservative Christians who object to the idea of children’s rights altogether, or at least to international human rights protection of the child, and see these rights as a liberal threat to parental rights to nurture, educate, and discipline their own children. We argue, however, that many of these modern objections to children’s rights are misplaced, and fail to appreciate the classical and Christian roots of children’s rights and parental duties in the Western tradition. We call upon churches and states alike to embrace children’s rights more fully, and to offer at least qualified acceptance of the UN Convention.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"61 1","pages":"991-1014"},"PeriodicalIF":0.0,"publicationDate":"2011-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1111/J.1467-9744.2011.01208.X","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"63071912","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 provides the first extended analysis of the conscious use of race and sex in decisions organizing work. It takes the position that race and sex are being used in organizing work-in assigning clients and job tasks, in composing work teams, in staffing committees and outreach groups-and that they are being used pursuant to a “diversity” narrative in ways that are likely to entrench workplace inequality. At the same time, it argues that race and sex could be used in those same decisions to reduce workplace discrimination and to further equality in work. Drawing on a rich body of research in sociology, social psychology, and organizational theory, the Article exposes the risks and possibilities of race and sex in organizing work by focusing on the role that social interactions play in producing and reproducing disadvantage and on the role of organizational and institutional structures in shaping those interactions. Based on this empirical foundation and on the Supreme Court case law governing the use of race and sex in employment decisions under Title VII of the Civil Rights Act, the Article advances a comprehensive approach to the permissibility of race and sex in decisions organizing work. It argues that Title VII permits the use of race and sex in decisions organizing work to serve the goal of reducing employment discrimination, provided that individual race- and sex-based decisions are part of an employer’s systemic integrative effort. This approach recognizes that decisions organizing work differ from decisions at moments of entry, promotion, and exit in ways that matter to an antidiscrimination analysis. They are “softer” in that their benefits and harms are not always immediately discernable, and they can impose costs as well as benefits on women and people of color, even when they are intended to (and do) further antidiscrimination goals. The approach to Title VII developed in this Article accounts for these differences and offers a unique opportunity to harness the existing business case for diversity to progress meaningful integration in work and to foster reduced workplace discrimination.
{"title":"Race and Sex in Organizing Work: 'Diversity,' Discrimination, and Integration","authors":"Tristin K. Green","doi":"10.2139/SSRN.1490030","DOIUrl":"https://doi.org/10.2139/SSRN.1490030","url":null,"abstract":"This Article provides the first extended analysis of the conscious use of race and sex in decisions organizing work. It takes the position that race and sex are being used in organizing work-in assigning clients and job tasks, in composing work teams, in staffing committees and outreach groups-and that they are being used pursuant to a “diversity” narrative in ways that are likely to entrench workplace inequality. At the same time, it argues that race and sex could be used in those same decisions to reduce workplace discrimination and to further equality in work. Drawing on a rich body of research in sociology, social psychology, and organizational theory, the Article exposes the risks and possibilities of race and sex in organizing work by focusing on the role that social interactions play in producing and reproducing disadvantage and on the role of organizational and institutional structures in shaping those interactions. Based on this empirical foundation and on the Supreme Court case law governing the use of race and sex in employment decisions under Title VII of the Civil Rights Act, the Article advances a comprehensive approach to the permissibility of race and sex in decisions organizing work. It argues that Title VII permits the use of race and sex in decisions organizing work to serve the goal of reducing employment discrimination, provided that individual race- and sex-based decisions are part of an employer’s systemic integrative effort. This approach recognizes that decisions organizing work differ from decisions at moments of entry, promotion, and exit in ways that matter to an antidiscrimination analysis. They are “softer” in that their benefits and harms are not always immediately discernable, and they can impose costs as well as benefits on women and people of color, even when they are intended to (and do) further antidiscrimination goals. The approach to Title VII developed in this Article accounts for these differences and offers a unique opportunity to harness the existing business case for diversity to progress meaningful integration in work and to foster reduced workplace discrimination.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"59 1","pages":"585"},"PeriodicalIF":0.0,"publicationDate":"2010-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1490030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68187021","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 Essay, prepared as part of the Emory Law Journal’s 2009 Thrower Symposium on Executive Power, addresses internal separation of powers constraints on the executive branch. After briefly describing the form such constraints take and assessing their constitutional legitimacy, the Essay takes up the question of whether internal constraints can be an effective restraint on presidential aggrandizement. I argue that although such constraints can have some purchase, focusing solely on internal measures frames the inquiry too narrowly and ignores the important interdependent relationship between internal and external checks on executive power. The Essay concludes with an assessment of one such internal-external connection, the link between internal executive branch constraints and external legal doctrine, and suggests that separation of powers analysis should be more expressly used to reinforce such internal constraints.
{"title":"The Interdependent Relationship Between Internal and External Separation of Powers","authors":"Gillian E. Metzger","doi":"10.2139/SSRN.1486288","DOIUrl":"https://doi.org/10.2139/SSRN.1486288","url":null,"abstract":"This Essay, prepared as part of the Emory Law Journal’s 2009 Thrower Symposium on Executive Power, addresses internal separation of powers constraints on the executive branch. After briefly describing the form such constraints take and assessing their constitutional legitimacy, the Essay takes up the question of whether internal constraints can be an effective restraint on presidential aggrandizement. I argue that although such constraints can have some purchase, focusing solely on internal measures frames the inquiry too narrowly and ignores the important interdependent relationship between internal and external checks on executive power. The Essay concludes with an assessment of one such internal-external connection, the link between internal executive branch constraints and external legal doctrine, and suggests that separation of powers analysis should be more expressly used to reinforce such internal constraints.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"59 1","pages":"423"},"PeriodicalIF":0.0,"publicationDate":"2009-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186697","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}
Mathew D. McCubbins, Daniel B. Rodriguez, Barry R. Weingast
The 'Rule of Law' is a venerable concept, but, on closer inspection, is a complex admixture of positive assumptions, occasionally wishful thinking, and inchoate political and legal theory. While enormous investment has been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries in the world are often unclear about what they are transplanting and why they are ambitiously doing so. Scholars clearly have more work to do in understanding the rule of law and designing institutions to realize the objectives for which this grand project is intended.In this paper, we revisit the concept of the rule of law in order to help unpack the theoretical and operational assumptions underlying scholarship and reform efforts. We do so from the perspective of legal and positive political theory; and we interrogate various institutional devices (such as constitutionalism and the independent judiciary) in order to shed light on how the construct of the rule of law is being put into service on behalf of cross-national reform initiatives.
{"title":"The Rule of Law Unplugged","authors":"Mathew D. McCubbins, Daniel B. Rodriguez, Barry R. Weingast","doi":"10.2139/SSRN.1467797","DOIUrl":"https://doi.org/10.2139/SSRN.1467797","url":null,"abstract":"The 'Rule of Law' is a venerable concept, but, on closer inspection, is a complex admixture of positive assumptions, occasionally wishful thinking, and inchoate political and legal theory. While enormous investment has been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries in the world are often unclear about what they are transplanting and why they are ambitiously doing so. Scholars clearly have more work to do in understanding the rule of law and designing institutions to realize the objectives for which this grand project is intended.In this paper, we revisit the concept of the rule of law in order to help unpack the theoretical and operational assumptions underlying scholarship and reform efforts. We do so from the perspective of legal and positive political theory; and we interrogate various institutional devices (such as constitutionalism and the independent judiciary) in order to shed light on how the construct of the rule of law is being put into service on behalf of cross-national reform initiatives.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"59 1","pages":"1455-1494"},"PeriodicalIF":0.0,"publicationDate":"2009-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184446","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 paper examines the history of the building pressure during the 1940s the pass the UBIT and finds that the traditional explanations hide an underlying political function. As the charitable exemption became more important with the expansion of the income tax in the 1940s, it attracted new attention from both policymakers and a growing tax-shelter industry. Charities and sympathetic policymakers tried to justify a suddenly important blanket subsidy to charity on the basis of the charities exclusive dedication to good works. Tax-shelter promoters made the effort more difficult by featuring charities in roles, such as buying and leasing commercial real estate and operating businesses, distinctly incompatible with traditional perceptions of charitable activities. The UBIT prevents this cognitive dissonance. It discourages activities that make charities look uncomfortably uncharitable by taxing them, while simultaneously leaving exempt the old line of passive investment and business activities related to an exempt purpose.
{"title":"Adhering to the Old Line: Uncovering The History and Political Function of the Unrelated Business Income Tax","authors":"E. Stone","doi":"10.2139/SSRN.634264","DOIUrl":"https://doi.org/10.2139/SSRN.634264","url":null,"abstract":"The paper examines the history of the building pressure during the 1940s the pass the UBIT and finds that the traditional explanations hide an underlying political function. As the charitable exemption became more important with the expansion of the income tax in the 1940s, it attracted new attention from both policymakers and a growing tax-shelter industry. Charities and sympathetic policymakers tried to justify a suddenly important blanket subsidy to charity on the basis of the charities exclusive dedication to good works. Tax-shelter promoters made the effort more difficult by featuring charities in roles, such as buying and leasing commercial real estate and operating businesses, distinctly incompatible with traditional perceptions of charitable activities. The UBIT prevents this cognitive dissonance. It discourages activities that make charities look uncomfortably uncharitable by taxing them, while simultaneously leaving exempt the old line of passive investment and business activities related to an exempt purpose.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"54 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67781192","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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