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Truth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism: a review essay of: Beyond all reason: the radical assault on truth in American law. By Daniel Farber & Suzanna Sherry.
Get PDFTruth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism: a review essay of: Beyond all reason: the radical assault on truth in American law. By Daniel Farber & Suzanna Sherry. New York, NY: Oxford University Press.
1997. Pp. 208.Hills, Roderick M., Jr.. (1998). Truth or Consequences? The Inadequacy of Consequentialist Arguments Against Multicultural Relativism: a review essay of: Beyond all reason: the radical assault on truth in American law. By Daniel Farber & Suzanna Sherry.. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/167633
The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing
Get PDFIn cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price. In this Article, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a right to stink in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city\u27s own welfare unless the external agglomeration benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation
Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar\u27s Analysis of Romer
Get PDFAs I first discovered as a law student in Professor Amar\u27s classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar\u27s legal analysis, even when he is attacking one\u27s own arguments. So my pleasure at reading Professor Amar\u27s analysis of the Court\u27s decision in Romer v. Evans was only partly dampened by his disapproval of the respondents\u27 brief that I and other plaintiffs\u27 counsel filed with the Court. According to Amar, this respondents\u27 brief provided the Court with so little help that it had to rely on an entirely different and much sounder argument - an argument rooted in the U.S. Constitution\u27s prohibition on attainder, contained in Article I, sections 9 and 10. Amar maintains that (1) contrary to Justice Scalia\u27s vituperative dissent, the attainder argument provides an intellectually compelling basis for believing that Amendment 2 is unconstitutional, and (2) the Romer decision, correctly interpreted, adopted precisely this argument. Amar\u27s revival of the Attainder Clauses is classically Amaresque: it talces constitutional text and structure seriously and it provides an original and sensitive reading of specific constitutional clauses and a careful understanding of their structural relationships. However, as much as I appreciate his elegant and astute reading of the Attainder Clauses, I think in the end that his application of these clauses to Amendment 2 and his reading of Romer are unconvincing. The difficulty with his argument is that, as Amar notes, the Attainder Clauses prohibit state and federal legislation from naming persons and singling them out for distinctive treatment. As explained below, a law names persons only if it defines a closed class of persons with some fixed characteristic - a class the entire membership of which could be known (at least in theory) by the legislators at the moment when the law is enacted
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Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar\u27s Analysis of Romer
No full textAs I first discovered as a law student in Professor Amar\u27s classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar\u27s legal analysis, even when he is attacking one\u27s own arguments. So my pleasure at reading Professor Amar\u27s analysis of the Court\u27s decision in Romer v. Evans was only partly dampened by his disapproval of the respondents\u27 brief that I and other plaintiffs\u27 counsel filed with the Court. According to Amar, this respondents\u27 brief provided the Court with so little help that it had to rely on an entirely different and much sounder argument - an argument rooted in the U.S. Constitution\u27s prohibition on attainder, contained in Article I, sections 9 and 10. Amar maintains that (1) contrary to Justice Scalia\u27s vituperative dissent, the attainder argument provides an intellectually compelling basis for believing that Amendment 2 is unconstitutional, and (2) the Romer decision, correctly interpreted, adopted precisely this argument. Amar\u27s revival of the Attainder Clauses is classically Amaresque: it talces constitutional text and structure seriously and it provides an original and sensitive reading of specific constitutional clauses and a careful understanding of their structural relationships. However, as much as I appreciate his elegant and astute reading of the Attainder Clauses, I think in the end that his application of these clauses to Amendment 2 and his reading of Romer are unconvincing. The difficulty with his argument is that, as Amar notes, the Attainder Clauses prohibit state and federal legislation from naming persons and singling them out for distinctive treatment. As explained below, a law names persons only if it defines a closed class of persons with some fixed characteristic - a class the entire membership of which could be known (at least in theory) by the legislators at the moment when the law is enacted
The Case for Educational Federalism: Protecting Educational Policy from the National Government\u27s Diseconomies of Scale
Get PDFThe article presents information on educational innovations and the impact of federal government intervention on such innovations. The capacity of the government in improving household decision making and the role of subnational government is discussed. The impact of household autonomy, the spillover benefits of the educational programs and beneficiaries of federal educational program is also discussed
Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption
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Are Judges Really More Principled than Voters?
Get PDFChris Eisgruber\u27s Constitutional Self-Government gives federal judges broad discretion to read what they take to be our moral convictions into the United States Constitution
The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and Dual Sovereignty Doesn\u27t
Get PDFIt is commonplace to observe that dual federalism is dead, replaced by something variously called cooperative federalism, intergovernmental relations, or marble-cake federalism. According to this conventional wisdom, state and local officials do not enforce merely their own laws in their distinct policymaking sphere. Rather, as analyzed in a voluminous literature, state and local governments also cooperate with the federal government in many policymaking areas, ranging from unemployment insurance to historic preservation. These nonfederal governments help implement federal policy in a variety of ways: by submitting implementation plans to federal agencies, by promulgating regulations, and by bringing administrative actions to enforce federal statutes. Thus, cooperative federalism offers us a vision of independent governments working together to implement federal policy. But what happens if this harmonious relationship breaks down? What if state and local governments refuse to cooperate ? Can the federal government force the state and local governments to implement federal policy? Or is the federal government able to rely only on the voluntary participation of state and local governments
Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures\u27 Control
Get PDFIn discussions about American federalism, it is common to speak of a state government as if it were a black box, an individual speaking with a single voice. State governments are, of course, no such thing. Rather, a state actually incorporates a bundle of different subdivisions, branches, and agencies controlled by politicians who often compete with each other for electoral success and governmental power. In particular, these institutions compete with each other for the power to control federal funds and implement federal programs. This article explores one aspect of this intrastate competition - the extent to which federal law can delegate federal powers to specific state or local institutions even against the will of the state legislature. Must the federal government take state institutions as it finds them, or can it expand these institutions\u27 powers even in the teeth of state laws that seem to bar the institutions from exercising such federally derived powers
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