Journal of Legal Analysis最新文献

{"title":"Constitution-Making and Violence","authors":"J. Elster","doi":"10.1093/JLA/LAS009","DOIUrl":"https://doi.org/10.1093/JLA/LAS009","url":null,"abstract":"Contrary to a traditional view, constitutions are rarely written in calm and reflective moments. Rather, because they tend to bewritten in period of social unrest, constituent moments induce strong emotions and, frequently, violence. The paper examines two such cases: the Federal Convention of 1787 and the French Assemblee Constituante of 1789–1791. These involved state violence as well as popular violence. In the USA, the unequal political representation of the backcountry explains both the violent events leading to the Convention and its outcome. In France, the dismissal of the King’sMinister Necker explains the subsequent urban and rural violence, and ultimately the abolition of feudalism and the fall of the monarchy. L’anarchie est un passage effrayant, mais necessaire, et c’est le seul moment ou l’on peut arriver a un nouvel ordre des choses. Ce n’est pas dans des temps de calme qu’on prendrait des mesures uniformes. (“Anarchy is a frightening but necessary passage, and the only moment when one can establish a new order of things. It is not in calm times that one can adopt uniform measures”.) (Comte de Clermont-Tonnerre, AR 9, 461)","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79203291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lessons from the Automobile Reorganizations","authors":"D. Baird","doi":"10.1093/JLA/LAS001","DOIUrl":"https://doi.org/10.1093/JLA/LAS001","url":null,"abstract":"In both Chrysler and General Motors, the government was, among other things, a large creditor exercising control over its debtor and pushing for a speedy sale of the assets. Together the two cases capture the issues central to large Chapter 11 cases today. The debate over speedy sales of businesses in Chapter 11 is over. Sales are now the norm in large reorganizations. Instead of asking whether there should be sales in bankruptcy, we need to ask how to police various forms of abuse. Three years after the fact, we can begin to draw some conclusions about the reorganizations of Chrysler and General Motors. The government’s use of the bankruptcy laws to inject tens of billions into two of the country’s largest automobile companies had its intended effect. At the start of 2009, General Motors and Chrysler were bleeding to death. 2 Maintaining either business as a going concern required a massive infusion of capital no one in the private market was willing to provide. As a result of the government’s intervention, the basic structure of the American automobile industry was preserved.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80850253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Precautionary Principles in Constitutional Law","authors":"Adrian Vermeule","doi":"10.1093/JLA/LAS003","DOIUrl":"https://doi.org/10.1093/JLA/LAS003","url":null,"abstract":"This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81768668","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolution of Contractual Terms in Sovereign Bonds","authors":"Stephen Choi, Mitu G. Gulati, E. Posner","doi":"10.1093/JLA/LAS004","DOIUrl":"https://doi.org/10.1093/JLA/LAS004","url":null,"abstract":"In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using creditors’ money; and debtors and creditors may attempt to externalize costs on the taxpayers of other countries. We support this argument with a statistical study of the development of sovereign bond terms from 1960 to the present.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90316435","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction: Political Risk and Public Law","authors":"Adrian Vermeule","doi":"10.1093/JLA/LAS007","DOIUrl":"https://doi.org/10.1093/JLA/LAS007","url":null,"abstract":"On December 15-16, 2011, Harvard Law School convened a conference on “Political Risk and Public Law.” A special issue of the Journal of Legal Analysis will be devoted to publishing papers on this topic by Jon Elster, Edward Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim is to introduce a new set of questions about public law and a new analytical framework for thinking about those questions. The premise of the enterprise is that constitutions and other instruments of public law may fruitfully be viewed as devices for regulating political risks. Large literatures in law, economics, political science and policy studies examine first-order risks that arise from technology, the market, or nature. By contrast, constitutions and foundational statutes, such as the Administrative Procedure Act, may be understood as devices for regulating second-order risks. These are risks that arise from the design of institutions, the allocation of legal and political power among given institutions, and the selection of officials to staff those institutions. This perspective employs the framework of risk analysis elaborated by many disciplines across the social and policy sciences. The framework promises new insights for public law. Constitutional actors have often spoken the prose of risk regulation without knowing it, offering arguments about constitutional and institutional design that implicitly posit second-order risks and offer institutional prescriptions for managing those risks. By bringing the analytic structure of those arguments to the surface, political risk analysis promises to allow a more intelligent description and evaluation of the major problems of public law.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90527218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The First Amendment and Political Risk","authors":"M. Tushnet","doi":"10.1093/JLA/LAS005","DOIUrl":"https://doi.org/10.1093/JLA/LAS005","url":null,"abstract":"Speech can directly inflict harm, and can increase the risk that harm will occur. irst Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. Like all risks, First Amendment risk varies along several dimensions. This Essay focuses on three: distribution of risk, magnitude of risk, and magnitude of social benefit.Consideration of the institutional relationship between courts and legislatures is more central to analyzing judicially developed free speech doctrine than is a direct assessment of risk, its magnitude and distribution, and the social benefits of speech. Courts cannot completely avoid such direct assessments, but after they make a rough judgment about these matters, they must consider the institutional question of whether, and more important how, they should respond when their assessments differ from the legislature’s. Vince Blasi’s classic article, The Pathological Perspective and the First Amendment, argued that First Amendment doctrine rested on the accurate view that courts could reliably identify certain pathologies in the legislative process that predictably generated systematically excessive legislative assessments of the degree to which speech increased the risk of harm. This Essay addresses a different pathology, located in the judicial branch rather than the legislative one. I motivate the argument by describing several cases in which the courts’ assessment of the risk that speech causes harm seems mistaken, either because the courts seem to be mistaken in thinking that the legislature’s estimates of the risk of harm are excessive or because the courts are insensitive to questions about the distribution of harm. In conjunction with that description I offer a diagnosis of the judicial pathology, which, following Duncan Kennedy, I call the rule-ification of doctrine, that is, the tendency over time for courts to replace doctrine articulated in the form of standards with doctrine articulated in the form of rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules. I conclude with a discussion of the obvious treatment, given that diagnosis – the injection of standards into the rule-ified system. I observe, though, that such an injection might not occur for the reasons that lead courts to rule-ify, and that in any event the tendency to rule-ification will assert itself even after an injection of standards.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78029294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE POLITICAL RISKS (IF ANY) OF BREAKING THE LAW","authors":"F. Schauer","doi":"10.1093/JLA/LAS010","DOIUrl":"https://doi.org/10.1093/JLA/LAS010","url":null,"abstract":"Is breaking the law a politically risky act for politicians and other public officials? The question is especially important in the context of legislators and high executive officials who, for reasons of immunity or otherwise, are not subject to formal legal sanctions when they break the law. In such contexts, we might think that various other repercussions would serve in the place of formal legal sanctions, such that violating the Constitution or the law would entail tangible political, reputational, and social risks. Yet a raft of examples suggests, albeit not definitively, that violating the law qua law is not ordinarily subject to non-legal sanctions. The electorate, the media, and most other potential sources of social and political sanctions reward good policy choices and sanction bad ones, but the very fact of illegality, except possibly by increasing the sanctions for bad policy choices that are also illegal, appears to play at most a small role in constraining the choices of a large group of the most influential and visible American public officials.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90195890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scholars' Briefs and the Vocation of a Law Professor","authors":"R. Fallon","doi":"10.1093/JLA/LAS002","DOIUrl":"https://doi.org/10.1093/JLA/LAS002","url":null,"abstract":"This article examines the increasingly common phenomenon of \"scholars' briefs\" in which collections of law professors appear as amici curiae in litigation before a court. Arguing that many professors compromise their integrity by joining such briefs too promiscuously, the article proposes standards that professors should insist upon before signing amicus briefs that they do not write. The article's methodology involves comparisons among various roles that law professors sometimes play and the distinctive moral and ethical standards appropriate to each. Besides a thorough discussion of scholars' briefs, the article includes broader analysis of law professors' role-based ethical obligations.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2012-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91216597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hybrid Judicial Career Structures: Reputation Versus Legal Tradition","authors":"Nuno Garoupa, Tom Ginsburg","doi":"10.1093/JLA/LAR004","DOIUrl":"https://doi.org/10.1093/JLA/LAR004","url":null,"abstract":"Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86124234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A New Publisher","authors":"J. Ramseyer, S. Shavell, R. Jackson","doi":"10.1093/JLA/LAR001","DOIUrl":"https://doi.org/10.1093/JLA/LAR001","url":null,"abstract":"","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90399936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}