U.S. Constitutional Law: Interpretation & Judicial Review eJournal最新文献

{"title":"The Story of Murphy: A New Front in the War on the Income Tax","authors":"P. L. Caron","doi":"10.2139/SSRN.1474523","DOIUrl":"https://doi.org/10.2139/SSRN.1474523","url":null,"abstract":"This chapter from the second edition of Tax Stories (Foundation Press) unpacks the D.C. Circuit’s stunning decision in Murphy v. United States, 460 F.3d 79 (D.C. Cir. 2006), which unsettled more than a half-century of tax jurisprudence in holding, based on an originalist view of the Sixteenth Amendment, that a personal injury award for emotional and reputational injuries could not be constitutionally treated as income. The chapter explores the background of the case, examines the parties’ conduct of the litigation, and critically analyzes the flaws and negative implications of the panel’s opinion. Although the D.C. Circuit panel ultimately granted rehearing and reversed its earlier decision in Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007), the panel could not unring the bell and undo the lasting damage to the tax system caused by its original opinion. In his chapter on The Story of INDOPCO, Joseph Bankman argues that the income tax often asks too much of judges (and taxpayers, tax accountants, tax lawyers, and the IRS), demanding Solomonic judgments that mere mortals are incapable of consistently getting right. As a result, what initially may appear as an isolated failure instead may be a systemic flaw in the income tax itself. In Murphy, however, the income tax asked very little of the D.C. Circuit: the case merely required understanding of the constitutional source of Congress’s taxing power; the relationship between constitutional and statutory definitions of income; the meaning of tax basis and the difference between financial capital and human capital; and the courts’ duty to the tax system. Instead, the D.C. Circuit turned what should have been a run of the mill tax dispute over the application of § 104(a)(2) into a threat to the very survival of the income tax. The D.C. Circuit, prodded by the tax blogosphere, ultimately backed away from the brink, but the panel’s willingness to arm the anti-tax brigades should give pause to those committed to defend the income tax. Although questions about the taxation of damage recoveries will not bring down the income tax, the willingness of so many to shake its foundations may ultimately prove its undoing.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130399198","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}

{"title":"Judicial Review in Review: A Four-Part Defense of Legal Constitutionalism - A Review Essay on Political Constitutionalism, by Richard Bellamy","authors":"A. Walen","doi":"10.1093/ICON/MOP007","DOIUrl":"https://doi.org/10.1093/ICON/MOP007","url":null,"abstract":"This review focuses on the powerful critique of judicial review published in 2007 by Richard Bellamy. It responds to his central theses, drawing in significant part from the work of Mattias Kumm and, at the same time, offering a novel defense of constitutionalism and judicial review. This defense argues that certain of the costs of judicial review are worth bearing in order to keep alive the lessons of history embodied in constitutions, lest future generations forget history and, thereby, prove doomed to repeat it.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123942244","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}

{"title":"Offshoring the War on Terror","authors":"Kal Raustiala","doi":"10.1093/oso/9780195304596.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780195304596.003.0010","url":null,"abstract":"Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration's \"war on terror\" was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of \"extraordinary rendition.\" This chapter, drawn from a forthcoming book on Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116816628","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}

{"title":"The Charade of Tradition-Based Substantive Due Process","authors":"J. Toro","doi":"10.2139/SSRN.1152856","DOIUrl":"https://doi.org/10.2139/SSRN.1152856","url":null,"abstract":"This Article criticizes the Supreme Court's substantive due process standard, by which the Court protects unenumerated constitutional rights only if they are deeply rooted in American history and tradition. First, the Article objects to the standard by way of internal critique, arguing that it does not serve the principal rationale for its adoption, constraining judicial discretion. The standard fails to constrain judicial discretion for three main reasons: First, the Court has vast discretion in deciding which traditions to take into account. Second, there is substantial discretion in determining how to define the tradition at issue, which can be exploited to advance the predilections of the Justices. Finally, even if the Court finds that an asserted liberty interest is supported by \"American tradition,\" it must take the further step of determining whether that interest should receive contemporaneous protection, an inquiry which depends heavily on the type of moral judgment the Court sought to avoid by using the deep roots test. Taken collectively, these points show that the deep roots test does very little to cabin judicial discretion, as the Supreme Court had hoped it would. Second, the Article objects to the standard by way of external critique, arguing that it is at war with principles of personal autonomy, majoritarianism and normative progress. To avoid these problems, the Article proposes that the Court replace the current substantive due process standard with the open-ended standard articulated by Justice Cardozo in Palko v. Connecticut.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"334 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123328991","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}

{"title":"The Right to Judicial Review","authors":"Alon Harel, Yuval Eylon","doi":"10.4337/9781785360060.00019","DOIUrl":"https://doi.org/10.4337/9781785360060.00019","url":null,"abstract":"Judicial review (JR) is typically justified on consequentialist grounds, namely that it is conducive to the efficacious protection of individual rights. This Essay disputes this popular explanation for JR and argues that JR is based on a right to voice a grievance or a right to a hearing - a right designed to provide an opportunity for the victim of infringement to challenge that infringement. The state must justify and, in appropriate cases, reconsider any infringement in light of the particular claims and circumstances of the victims of the infringement. This right-to-a-hearing-based justification implies that JR is justified even if ultimately it is found to be detrimental to the efficacious protection of rights. Finally, this Essay concludes that the right to a hearing is a participatory right and, consequently, that JR does not conflict with the right to equal democratic participation.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114125283","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}

{"title":"Minority Report: John Marshall and the Defense of the Alien and Sedition Acts","authors":"Kurt T. Lash, Alicia M. Harrison","doi":"10.2139/SSRN.888803","DOIUrl":"https://doi.org/10.2139/SSRN.888803","url":null,"abstract":"In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove Marshall's name from the Report. What was once an assumed (if controversial) episode in Marshall's career has disappeared from otherwise exhaustive accounts of his life and work. As in Philip K. Dick's story, Minority Report, an alternate view of events has been unceremoniously erased from the official record. The authors of this article challenge the decision to remove Marshall's name from the Minority Report. Marshall was the only person named at the time as the probable author, and Marshall had both reason and opportunity to draft the Address. The arguments of the Report not only track Marshall's views on the Constitution, they utilize constitutional arguments that were wholly unique at the time and would appear again, almost verbatim, in the future-Chief Justice's constitutional opinions. If Marshall penned this defense of the Acts, then this not only reveals the views of federal power he brought with him to the Supreme Court, it also helps illuminate public reaction to Chief Justice Marshall's nationalist jurisprudence. To his critics, Marshall's construction of federal power in McCulloch echoed the same arguments put forward to defend the hated Alien and Sedition Acts. The historical evidence suggests that not only were the arguments similar, they had flowed from the same pen.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131341227","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}

{"title":"Constitutional Structure and Statutory Formalism","authors":"J. Manning","doi":"10.2139/ssrn.2853487","DOIUrl":"https://doi.org/10.2139/ssrn.2853487","url":null,"abstract":"Cass Sunstein argues that judicial and academic debate about statutory formalism (and its operational arm, textualism) should shift from discussion of first principles to an investigation of the way formalism and antiformalism work in practice. Sunstein, for example, contends that we should compare how well formalism and antiformalism function as market-mimicking default rules, roughly defined as rules that replicate what Congress would have done had it explicitly spoken to a particular interpretive question. Leaving aside the difficult question of how to construct a meaningful empirical test of that counterfactual proposition (formalists think it impossible), one must first ask why that or any other conceivable interpretive value — equity, transparency, coherence, deliberation, lower decision costs, higher decision costs, etc. — should qualify as a proper benchmark for empirical testing. This paper argues that in a limited constitutional democracy, any inquiry into interpretive method must begin with the constitutional structure. That is to say, before testing whether a default rule promotes any particular interpretive value, we must first ascertain whether the Constitution either enjoins or permits the judiciary to recognize such a value as worthy of promotion. It is true, as Sunstein contends, that even state-of-the-art formalists sometimes invite skepticism of such an approach by making overstylized constitutional arguments about the implications of bicameralism and presentment, the requirements of democracy, and the like. Still, the modern formalist's (and, for that matter, antiformalist's) occasional overstatement of the case does not warrant rejection of constitutional analysis in the interpretive debate; if anything, it calls for a more textured inquiry into what the Constitution can or cannot tell us about interpretive method. Such analysis should cast light on the valuable question that Sunstein raised — whether and to what extent empirical analysis might help to assess the competing claims of formalism and antiformalism.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128365024","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}