Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts’ inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants to abandon the federal court system. This article argues that, rather than eschewing the federal courts, employment discrimination plaintiffs should bring their cases in the federal courts, preferably before juries. This article charts the multi-laned manner in which the federal courts have essentially gotten out of the employment discrimination business. In a series of cases, the Supreme Court of the United States has opened the door to alternative forms of dispute resolution. Whether it be through a robust pro-arbitration jurisprudence, an uncalled-for reliance on employer internal grievance mechanisms, or aggressive settlement conferences, courts are shunting employment discrimination cases out of the court system and into the sphere of private dispute resolution. This is not only coming from the courts. Even the federal agency tasked with enforcing these laws – the Equal Employment Opportunity Commission – is finding means other than court cases for addressing these claims. In addition, lower courts have used invigorated civil procedure rules, including summary judgment motions and motions to dismiss, as an effective tool to clear their dockets, leaving plaintiffs with no relief at all. Yet, there is no way to know whether alternative dispute resolution systems, such as arbitration, mediation, settlement, or internal employer grievance mechanisms, are actually providing justice to workers. Most of these alternative dispute resolution systems fly under the radar – “in the shadow of the law,” as commentators suggest. In addition, they do not alert either employers or employees to what is and is not acceptable workplace behavior. Most importantly, these alternative schemes provide no support for the norm-enforcing scheme that is the American legal system. This article, in the tradition of Professor Owen Fiss’s Against Settlement, looks at the potential effects of employment discrimination laws being enforced – if at all – through private dispute resolution mechanisms. Anti-discrimination laws serve a vital public purpose – they set norms of behavior for workplaces and workers in the area of equal employment opportunity. This article argues that case law in this area is important for setting norms of appropriate workplace behavior and
{"title":"The Many Lanes Out of Court: Against Privatization of Employment Discrimination Disputes","authors":"Theresa M. Beiner","doi":"10.2139/SSRN.2257033","DOIUrl":"https://doi.org/10.2139/SSRN.2257033","url":null,"abstract":"Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts’ inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants to abandon the federal court system. This article argues that, rather than eschewing the federal courts, employment discrimination plaintiffs should bring their cases in the federal courts, preferably before juries. This article charts the multi-laned manner in which the federal courts have essentially gotten out of the employment discrimination business. In a series of cases, the Supreme Court of the United States has opened the door to alternative forms of dispute resolution. Whether it be through a robust pro-arbitration jurisprudence, an uncalled-for reliance on employer internal grievance mechanisms, or aggressive settlement conferences, courts are shunting employment discrimination cases out of the court system and into the sphere of private dispute resolution. This is not only coming from the courts. Even the federal agency tasked with enforcing these laws – the Equal Employment Opportunity Commission – is finding means other than court cases for addressing these claims. In addition, lower courts have used invigorated civil procedure rules, including summary judgment motions and motions to dismiss, as an effective tool to clear their dockets, leaving plaintiffs with no relief at all. Yet, there is no way to know whether alternative dispute resolution systems, such as arbitration, mediation, settlement, or internal employer grievance mechanisms, are actually providing justice to workers. Most of these alternative dispute resolution systems fly under the radar – “in the shadow of the law,” as commentators suggest. In addition, they do not alert either employers or employees to what is and is not acceptable workplace behavior. Most importantly, these alternative schemes provide no support for the norm-enforcing scheme that is the American legal system. This article, in the tradition of Professor Owen Fiss’s Against Settlement, looks at the potential effects of employment discrimination laws being enforced – if at all – through private dispute resolution mechanisms. Anti-discrimination laws serve a vital public purpose – they set norms of behavior for workplaces and workers in the area of equal employment opportunity. This article argues that case law in this area is important for setting norms of appropriate workplace behavior and ","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"10 1","pages":"837"},"PeriodicalIF":0.0,"publicationDate":"2013-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90201206","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}
Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.
{"title":"Personal Jurisdiction and Choice of Law in the Cloud","authors":"Damon C. Andrews, J. Newman","doi":"10.2139/SSRN.2227671","DOIUrl":"https://doi.org/10.2139/SSRN.2227671","url":null,"abstract":"Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the “cloud” as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in recorded history, cloud computing is — both practically and legally — a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than a product, represents an evolution to a contractual foundation for all relevant interactions.Already, substantive cloud-related disputes have erupted in a variety of legal fields, including personal privacy, intellectual property, and antitrust, to name a few. Yet before courts can confront such issues, they must first address the two fundamental procedural questions of a lawsuit that form the bases of this Article — first, whether any law applies in the cloud, and, if so, which law ought to apply. Drawing upon novel analyses of analogous Internet jurisprudence, as well as concepts borrowed from disciplines ranging from economics to anthropology, this Article seeks to supply answers to these questions. To do so, we first identify a set of normative goals that jurisdictional and choice-of-law methodologies ought to seek to achieve in the unique context of cloud computing. With these goals in mind, we then supply structured analytical guidelines and suggested policy reforms to guide the continued development of jurisdiction and choice of law in the cloud.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"34 1","pages":"313"},"PeriodicalIF":0.0,"publicationDate":"2013-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90363480","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}
Invoking Lincoln is a troubling political maneuver in recent years in significant ways that the movie Lincoln highlights. This paper uses the movie to highlight the recent tendency to identify presidential mastery with Lincoln, providing support for the unitary executive and for executive overcoming of law in moments that the executive himself identifies as crises.
{"title":"The Dangerous Fantasy of Lincoln: Framing Executive Power as Presidential Mastery","authors":"J. Novkov","doi":"10.2139/SSRN.2221107","DOIUrl":"https://doi.org/10.2139/SSRN.2221107","url":null,"abstract":"Invoking Lincoln is a troubling political maneuver in recent years in significant ways that the movie Lincoln highlights. This paper uses the movie to highlight the recent tendency to identify presidential mastery with Lincoln, providing support for the unitary executive and for executive overcoming of law in moments that the executive himself identifies as crises.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"19 1","pages":"54"},"PeriodicalIF":0.0,"publicationDate":"2013-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75108536","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 brief article serves as a tribute to former Chief Judge Robert Bell, who recently retired from the Maryland Court of Appeals, and describes his legacy in support of racial justice in jury selection.Chief Judge Robert Bell is so well known for his groundbreaking efforts in support of access to justice programs — whether through expanding lawyer assistance opportunities or creating problem-solving courts — that his other significant legal accomplishments are often overlooked. The quest for racial equality in jury selection is one aspect in which Chief Judge Bell’s contributions have made an important and long-lasting impression. Chief Judge Bell has written eight precedent-setting opinions examining peremptory challenges and voir dire claims under federal and state law.
{"title":"Racial Equality in Jury Selection","authors":"F. M. Higginbotham","doi":"10.2139/SSRN.2310170","DOIUrl":"https://doi.org/10.2139/SSRN.2310170","url":null,"abstract":"This brief article serves as a tribute to former Chief Judge Robert Bell, who recently retired from the Maryland Court of Appeals, and describes his legacy in support of racial justice in jury selection.Chief Judge Robert Bell is so well known for his groundbreaking efforts in support of access to justice programs — whether through expanding lawyer assistance opportunities or creating problem-solving courts — that his other significant legal accomplishments are often overlooked. The quest for racial equality in jury selection is one aspect in which Chief Judge Bell’s contributions have made an important and long-lasting impression. Chief Judge Bell has written eight precedent-setting opinions examining peremptory challenges and voir dire claims under federal and state law.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"79 1","pages":"1106"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84092374","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, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.
{"title":"Fourteenth Amendment Originalism","authors":"J. Greene","doi":"10.7916/D83B5Z8G","DOIUrl":"https://doi.org/10.7916/D83B5Z8G","url":null,"abstract":"This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"1928 1","pages":"978"},"PeriodicalIF":0.0,"publicationDate":"2012-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87739207","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 symposium contribution discusses four basic features of the Thirteenth Amendment that appear both to be unique and to raise important interpretive issues. Because they are unique, they call for interpretive judgments of unfamiliar and difficult kinds. In addition, the essay considers three purported features that have been described as unique in the past, but that appear illusory upon reflection. If the current surge of scholarly interest in the Amendment is to have any impact on the case law, questions connected to each of these seven features will likely contribute importantly to its shaping.
{"title":"What's Different About the Thirteenth Amendment, and Why Does It Matter?","authors":"J. Pope","doi":"10.2139/SSRN.1894965","DOIUrl":"https://doi.org/10.2139/SSRN.1894965","url":null,"abstract":"This symposium contribution discusses four basic features of the Thirteenth Amendment that appear both to be unique and to raise important interpretive issues. Because they are unique, they call for interpretive judgments of unfamiliar and difficult kinds. In addition, the essay considers three purported features that have been described as unique in the past, but that appear illusory upon reflection. If the current surge of scholarly interest in the Amendment is to have any impact on the case law, questions connected to each of these seven features will likely contribute importantly to its shaping.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"23 1","pages":"189"},"PeriodicalIF":0.0,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78127021","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 practice of law, especially in large law firms, has been affected significantly by recent economic conditions. The recession of 2008-2009 brought about a new way of doing business for BigLaw. The year 2009 was the worst ever for law firm layoffs: more law firms laid off more employees than in all past years combined. Major law firms laid off more than 12,100 people over one-third of whom were lawyers. (It is likely that the number of layoffs was dramatically under-reported.) Moreover, some major law firms simply disappeared. As a direct result of large companies' decreased need for the sophisticated legal services typically provided by large law firms, the nation's largest firms have implemented various measures that are likely to have long-term effects on the hiring, retention, promotion, and training of lawyers. Historically, a large number of law school graduates sought employment in the nation's largest law firms. The reasons for this interest are many, including money, prestige, training, and the opportunity to do sophisticated work for large clients. Thus, one of the functions of law schools is to produce graduates who are capable of providing high level legal services and who can enter a large law firm and be successful. Law firms are looking for associates who exhibit sound judgment and creative and efficient problem solving abilities. To fulfill their function of producing practice-ready graduates, law schools must adapt to the new economic realities and their effects: fewer big firm jobs, alternate methods of billing clients, increased emphasis on marketing, moderated pay increases (and in some cases, decreased pay), fewer opportunities for partnership, and less job security. The challenge for legal education is how best to prepare students for this brave new BigLaw world.
{"title":"The Changing Cultures and Economics of Large Law Firm Practice and Their Impact on Legal Education","authors":"N. Dilloff","doi":"10.2139/SSRN.1819485","DOIUrl":"https://doi.org/10.2139/SSRN.1819485","url":null,"abstract":"The practice of law, especially in large law firms, has been affected significantly by recent economic conditions. The recession of 2008-2009 brought about a new way of doing business for BigLaw. The year 2009 was the worst ever for law firm layoffs: more law firms laid off more employees than in all past years combined. Major law firms laid off more than 12,100 people over one-third of whom were lawyers. (It is likely that the number of layoffs was dramatically under-reported.) Moreover, some major law firms simply disappeared. As a direct result of large companies' decreased need for the sophisticated legal services typically provided by large law firms, the nation's largest firms have implemented various measures that are likely to have long-term effects on the hiring, retention, promotion, and training of lawyers. Historically, a large number of law school graduates sought employment in the nation's largest law firms. The reasons for this interest are many, including money, prestige, training, and the opportunity to do sophisticated work for large clients. Thus, one of the functions of law schools is to produce graduates who are capable of providing high level legal services and who can enter a large law firm and be successful. Law firms are looking for associates who exhibit sound judgment and creative and efficient problem solving abilities. To fulfill their function of producing practice-ready graduates, law schools must adapt to the new economic realities and their effects: fewer big firm jobs, alternate methods of billing clients, increased emphasis on marketing, moderated pay increases (and in some cases, decreased pay), fewer opportunities for partnership, and less job security. The challenge for legal education is how best to prepare students for this brave new BigLaw world.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"1 1","pages":"341"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84314955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Do judges simply cherry pick precedents to justify decisions that reflect their personal biases rather than the weight of legal authority? Legal realists and legal skeptics have contended that judges use case law as a means of justifying decisions that have been made extra-legally. We test this hypothesis by statistically analyzing the citation practices of California Court of Appeal judges in unconscionable contract cases. We reject the claims of the legal realists and legal skeptics, finding no evidence that judges manipulate the existing case law by selecting favorable precedents to justify extra-legal decisions. Judges writing pro-plaintiff opinions are more likely to cite pro-plaintiff precedents; and pro-defendant opinions are more likely to cite pro-defendant precedents. While this is consistent with the idea that judges cherry pick precedents to cite in order to justify their decisions, it is also consistent with the idea that the precedents that are cited in a legal opinion are the most influential. To determine the direction of causation, we use a new methodology for analyzing the use of precedents in legal opinions, exploiting the fact that decisions correlate with perceived political preferences in the area of law we investigate. Citations of precedent in cases where judges vote in accordance with their perceived political preference do not significantly differ from citations of precedent in cases where judges do not vote in line with their perceived political preference. This is evidence that judges do not simply cherry pick precedents when writing opinions.
{"title":"Do Judges Cherry Pick Precedents to Justify Extra- Legal Decisions?: a Statistical Examination","authors":"Anthony Niblett","doi":"10.2139/SSRN.1434451","DOIUrl":"https://doi.org/10.2139/SSRN.1434451","url":null,"abstract":"Do judges simply cherry pick precedents to justify decisions that reflect their personal biases rather than the weight of legal authority? Legal realists and legal skeptics have contended that judges use case law as a means of justifying decisions that have been made extra-legally. We test this hypothesis by statistically analyzing the citation practices of California Court of Appeal judges in unconscionable contract cases. We reject the claims of the legal realists and legal skeptics, finding no evidence that judges manipulate the existing case law by selecting favorable precedents to justify extra-legal decisions. Judges writing pro-plaintiff opinions are more likely to cite pro-plaintiff precedents; and pro-defendant opinions are more likely to cite pro-defendant precedents. While this is consistent with the idea that judges cherry pick precedents to cite in order to justify their decisions, it is also consistent with the idea that the precedents that are cited in a legal opinion are the most influential. To determine the direction of causation, we use a new methodology for analyzing the use of precedents in legal opinions, exploiting the fact that decisions correlate with perceived political preferences in the area of law we investigate. Citations of precedent in cases where judges vote in accordance with their perceived political preference do not significantly differ from citations of precedent in cases where judges do not vote in line with their perceived political preference. This is evidence that judges do not simply cherry pick precedents when writing opinions.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"6 1","pages":"234"},"PeriodicalIF":0.0,"publicationDate":"2010-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79799930","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 : 2009-01-01DOI: 10.1515/9781618116567-010
Samuel J. Levine
In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and status of a “constitutional rule.” This Essay finds a similar debate among medieval legal authorities over the status of a rule in the Jewish legal system that appears to function in a manner ordinarily reserved for legislation. Some authorities categorize the rule as rabbinic legislation, while others understand the rule as a biblical law with quasi-legislative characteristics. Taking the conceptual comparison a step further, Levine considers ways in which Jewish legal theory might elucidate the nature of the “constitutional rule” delineated in Miranda.
在这篇文章中，莱文教授简要地探讨了迪克森诉美国案(Dickerson v. United States)，这是2000年的一项重要裁决，在该裁决中，意见分歧的美国最高法院认为，在米兰达诉亚利桑那州案中确立的标准继续管辖供词的可采性，尽管在米兰达案之后颁布的联邦法规提供了另一种标准。莱文在迪克森案中阐述了多数人和反对意见所采用的方法的更广泛的理论含义。他以犹太法律理论中对《托拉》(Torah)的解释为例，提出了一个比较框架，用于分析“宪政规则”的概念和地位上的多数派和异议派之间的分歧。本文发现，中世纪法律权威之间也有类似的争论，争论的焦点是犹太法律体系中一条规则的地位，这种规则似乎以一种通常为立法保留的方式发挥作用。一些权威人士将该规则归类为拉比立法，而另一些人则将该规则理解为具有准立法特征的圣经法律。将概念上的比较进一步推进，莱文考虑了犹太法律理论可能阐明米兰达案中所描述的“宪法规则”本质的方式。
{"title":"8. Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework","authors":"Samuel J. Levine","doi":"10.1515/9781618116567-010","DOIUrl":"https://doi.org/10.1515/9781618116567-010","url":null,"abstract":"In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and status of a “constitutional rule.” This Essay finds a similar debate among medieval legal authorities over the status of a rule in the Jewish legal system that appears to function in a manner ordinarily reserved for legislation. Some authorities categorize the rule as rabbinic legislation, while others understand the rule as a biblical law with quasi-legislative characteristics. Taking the conceptual comparison a step further, Levine considers ways in which Jewish legal theory might elucidate the nature of the “constitutional rule” delineated in Miranda.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"10 1","pages":"78"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78642969","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 Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States' obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin's case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice's Majority opinion, including the Court's self-proclaimed originalists, thus joined an opinion that construed the Constitution's Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause's original meaning cited by the dissenting Justices. This Article explores the meaning of originalism in the context of the Court's Medellin decision and contends that the Majority's opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather it is best understood as a decision reflecting the conservative Majority's political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequences of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government. Ultimately, however, the Article concludes that Medellin's case never should have come before the Court. The President has a duty to take Care that the Laws be faithfully executed. The Court determined that the Bush administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by working with Congress to make certain that federal law compels compliance with the International Court of Justice's judgment. Indeed, this Article contends that the Medellin case is emblematic of the U.S. executive branch's broader failure to ensure that all treaties requiring domestic implementation are in fact implemented so as to avoid placing the United States in violation of its international obligations.
{"title":"Medellin and Originalism","authors":"D. A. J. Telman","doi":"10.2139/SSRN.1211322","DOIUrl":"https://doi.org/10.2139/SSRN.1211322","url":null,"abstract":"In Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States' obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin's case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice's Majority opinion, including the Court's self-proclaimed originalists, thus joined an opinion that construed the Constitution's Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause's original meaning cited by the dissenting Justices. This Article explores the meaning of originalism in the context of the Court's Medellin decision and contends that the Majority's opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather it is best understood as a decision reflecting the conservative Majority's political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequences of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government. Ultimately, however, the Article concludes that Medellin's case never should have come before the Court. The President has a duty to take Care that the Laws be faithfully executed. The Court determined that the Bush administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by working with Congress to make certain that federal law compels compliance with the International Court of Justice's judgment. Indeed, this Article contends that the Medellin case is emblematic of the U.S. executive branch's broader failure to ensure that all treaties requiring domestic implementation are in fact implemented so as to avoid placing the United States in violation of its international obligations.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"17 1","pages":"337"},"PeriodicalIF":0.0,"publicationDate":"2008-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77699658","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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