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Advisory Adjudication
Get PDFThe Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court\u27s decision, therefore, has the paradoxical effect of both honoring and violating the Article III jurisdictional limitation on advisory opinions at the same time. The Camreta paradox illustrates a problem that makes our current conception of judicial review incoherent. We insist that the Supreme Court avoid separation of powers problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review. But what we really want the Court to do is participate in the prospective formulation of governmental policy, as if it were part of a tricameral legislative process. These dual conceptions of judicial review reflect a tension inherent in liberalism itself. We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to loftier civic republican virtue. We ask the Supreme Court to mediate this tension for us by making our liberal political victories look as if they are rooted in deeper communitarian principles. But this mediation can be successful only to the extent that the Court can mask for us the underlying incoherence of the judicial review function that we ask the Court to perform. In Camreta, this incoherence is so close to the surface that, hopefully, we will be forced to confront it. Without the camouflage that we ask judicial review to provide for our baser instincts, perhaps we will come to treat each other less harshly, and with more empathy
Check One and the Accountability is Done: The Harmful Impact of Straight-Ticket Voting on Judicial Elections
Get PDFStates that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of the judicial office most often impugned. One factor that often goes unnoticed, perhaps because of its unquestioned status in a partisan election, is the ballot itself.
Critics of partisan judicial elections decry the very concept of attaching a party label to a judicial candidate. The argument certainly has its merits. However, even if a voter blindly checks the box for every Democrat (for example) on the ballot, at least he has to confront the name and notice that the candidate is running for a judgeship. Some sort of internal evaluation—perhaps memory recall of campaign literature or radio advertisements—remotely informs the choice. Nevertheless, in a few states, the voter need not even do that; he literally need only check a single box and be out of the voting booth in thirty seconds or less. Straight-ticket voting virtually nullifies the legitimacy of judicial selection in partisan election states. The low informational nature of these races makes straight-ticket voting attractive to the uninformed voter. Parties in states that allow the practice seize the opportunity to take advantage of the uninformed voter and urge the single checkmark
A Decision Theory of Statutory Interpretation: Legislative History by the Rules
Get PDFWe have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer need legislative history always be a search for one’s friends.
Call this a decision theory of statutory interpretation. This approach is based on how Congress does in fact make decisions and thus is a positive theory. Normatively, it has the advantage of privileging text without blinding judges either to relevant information or to their duty to implement Congress’s decisions, including Congress’s own decisionmaking methods. It may also have the side benefit of reducing legislative incentives to manipulate the rules or to engage in strategic behavior to induce particular statutory interpretations
Interpretation and Construction in Altering Rules
Get PDFThis essay is a response to Ian Ayres\u27s, Regulating Opt-Out: An Economic Theory of Altering Rules, 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties\u27 acts or agreement. This limited vision is characteristic of economic approaches to contract law. Valuable as they are for identifying the incentives, intended or unintended, that legal rules create, they tend to overlook other functions of contract law.
The essay develops these points by applying the interpretation-construction distinction to Ayres\u27s theory. It distinguishes between two categories of altering rules, juristic and hermeneutic. Juristic altering rules are designed to help parties get the legal outcomes they want, though as Ayres points out, such rules also might attempt to slow parties with extra transaction costs. Hermeneutic altering rules condition legal change on the nonlegal meanings of what the parties say and do. Their application therefore requires a broader form of interpretation. The essay identifies the connections between each type of rule and more general principles and purposes of contract law. And it argues that attention to hermeneutic altering rules can fill in some of the gaps in Ayres\u27s account, such as explaining why juristic altering rules often specify sufficient but non-necessary means of effecting a legal change
The Problem About the Nature of Law \u3ci\u3evis-à-vis\u3c/i\u3e Legal Rationality Revisited: Towards an Integrative Jurisprudence
No full textIn this paper the author argues, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. He further argues that attempting to move from-the-important-to-the-necessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has advocated. The authors argument also draws on the insights of Oliver Wendell Holmes Jr., who by discussing the important, but apparently neither necessary nor sufficient aspects of legal practice, integrated both logic and experience into law as well as a pluralistic methodological approach to legal rationality. He argues that legal rationality comprises five different levels, spheres or types that are at least important or valuable, that one of these is at least morally important or valuable, and that a complex, but still workable, legal rationality is necessary to law. The paper concludes with a brief exploration of various implications of this general conclusion regarding the nature of law vis-à-vis legal rationality, namely that law and legal rationality do--and even must--integrate necessary references to morality
The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time
Get PDFSea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because they may prohibit all economically valuable development on a lot. But the article suggests various ways to capitalize on the future nature of sea-level rise to structure regulations and other government initiatives to minimize the risk or amount of takings liability. It argues that takings doctrine should not be so rigid as to prevent needed systematic adaptation
Hard, Soft, and Embedded: Implementing Principles on Promoting Responsible Sovereign Lending and Borrowing
Get PDFThis paper, prepared for UNCTAD’s initiative on responsible sovereign lending and borrowing, considers concrete strategies for implementing the Principles. It draws on studies in soft law and new governance, and on the recent experience in promoting best practices in international finance, including project finance, extraction revenue management, foreign aid, sovereign investment, and sovereign borrowing in the capital markets. It recommends maintaining the current non-binding character of the Principles, while embedding implementation in multi-stakeholder arrangements for ongoing disclosure, assessment, interpretation, and adaptation. This strategy has the best chance of changing behavior in sovereign lending and borrowing by creating constituencies for implementation and sustained compliance
Meaning, Purpose, and Cause in the Law of Deception
Get PDFLaws designed to affect the flow of information take many forms: rules against misrepresentation, disclosure requirements, secrecy requirements, rules governing the formatting or packaging of information, and interpretive rules designed to give people new reasons to share information. Together these and similar rules constitute the law of deception: laws that aim to prevent or cure deception. One encounters similar problems of design, function and justification throughout the law of deception. Yet very little has been written about the category as a whole. This article begins to sketch a general theory. It identifies three regulatory approaches. Interpretive laws, such as common law fraud, prohibit the making of untrue statements. These laws work by giving legal effect to commonly understood extralegal norms of interpretation and truth telling, in order to achieve specifically legal ends. Purpose-based laws, such as the tort of concealment, target acts done with a bad intent. Rather than employing an objective standard of behavior, they define the object of regulation by an actor\u27s wrongful state of mind. Finally, causal-predictive laws employ everyday folk-psychology, empirical studies or cognitive theory to predict the informational effects of narrowly described behaviors. Much consumer protection law is of the causal-predictive sort. These regulatory approaches reach different types of informationally significant behavior, are suited to different regulatory ends, and require different institutional competencies. After describing the strengths and weaknesses of each approach, the article applies the theory to the Lanham Act\u27s false advertising provisions. In deciding Lanham Act cases, courts have arrived at a complex set of rules that include all three approaches. A critical analysis of those rules illustrates the theory\u27s ability both to explain the law of deception and to recommend improvements in it
Justice Roberts’ America
Get PDFLess than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts\u27s opinion, in which he found that the Commerce Clause did not authorize Congress to enact the individual mandate section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although held might be stating it too strongly) that the Commerce Clause does not authorize Congress to regulate the inactivity of individuals—the act of not buying health insurance—even if that inactivity impacts interstate commerce. Rather, the Clause only authorizes congressional regulation where there is some activity of a commercial nature there to be regulated. Injecting a dose of libertarian and individualist thinking more typically associated with the Lochner-era\u27s substantive due process jurisprudence into Commerce Clause reasoning, Roberts argued that the inactivity of not buying insurance is tantamount to doing nothing, and doing nothing cannot be characterized as commercial activity even if it has a commercial impact
Ethical Challenges of Preexposure Prophylaxis for HIV
Get PDFOn July 16, 2012, emtricitabine/tenofovir (Truvada) became the first drug approved by the US Food and Drug Administration for preexposure prophylaxis (PrEP) of human immunodeficiency virus (HIV) for adults at high risk. While PrEP appears highly effective with consistent adherence, effective implementation poses ethical challenges for the medical and public health community. For PrEP users, it is necessary to maintain adherence, safe sex practices, and routine HIV testing and medical monitoring, to maximize benefits and reduce risks. On a population level, comparative cost-effectiveness should guide priority-setting, while safety measures must address drug resistance concerns without burdening patients\u27 access. Equitable distribution will require addressing the needs of underserved populations, women (for whom efficacy data are mixed) and people living in developing countries with high HIV incidence; meanwhile, it is necessary to consider the fair use of drugs for treatment vs. prevention and the appropriate design of new HIV prevention studies