Harvard Journal of Law and Public Policy最新文献

{"title":"Private Property and the Politics of Environmental Protection","authors":"T. Merrill","doi":"10.7916/D80001R9","DOIUrl":"https://doi.org/10.7916/D80001R9","url":null,"abstract":"Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. (1) It balkanizes an interconnected ecosystem into artificial units of individual ownership. Owners of these finite parcels have little incentive to invest in ecosystem resources and every incentive to dump polluting wastes onto other parcels. Only by relocating control over natural resources in some central authority like the federal government, can we make integrated decisions designed to preserve the health of the entire ecosystem. For these traditional environmentalists, private property is the problem; public control is the solution. There is a counter story, told by the proponents of what is sometimes called free market environmentalism. (2) In this story, private property is the good guy. Environmental degradation is a problem because of incomplete property rights. If all resources were privately owned, then no one would be able to impose externalities on anyone else; potential polluters would have to purchase the right to pollute first. Similarly, if all resources--including habitats of endangered species and other ecologically sensitive resources--were privately owned, then owners would have incentives to invest in the preservation of these resources, and would use their ingenuity to get persons who care about environmental protection to pay for it. For free market environmentalists, public control of resources is the problem; private property is the solution. Both sides in this debate are only half right. The traditional environmentalists are closer to the mark in their diagnosis of the problem. Property rights are always and inevitably incomplete, as it is costly to set up and enforce any system of private property. Because property rights are incomplete, owners of resources that are subject to private ownership--such as parcels of land devoted to productive uses--will always have incentives to disregard the costs they impose on common resources that are not subject to private ownership. Sometimes creating new types of property rights can help the situation; more often, however, the only cost-effective solution to these sorts of spillovers is government regulation. On the other hand, the free market environmentalists are closer to the mark in devising a solution to the problem. Missing from the traditional account is any credible theory of how we can generate collective action to protect sensitive ecosystem resources. Bursts of collective altruism do happen, but they are difficult to sustain. Witness the history of socialism, or, more pertinently the history of environmentalism. (3) What is needed is an institutional arrangement that generates private incentives supporting collective action that will protect the environment. The best such arrangement is the widespread private ownership of land. In this sense, the free market environmentalists are closer to the mark in their prescri","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2004-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Quasi War Cases—And Their Relevance to Whether Letters of Marque and Reprisal Constrain Presidential War Powers","authors":"J. Sidak","doi":"10.2139/SSRN.577264","DOIUrl":"https://doi.org/10.2139/SSRN.577264","url":null,"abstract":"Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, Talbot v. Seeman, and Little v. Bareme is the phrase in Article I, section 8 of the Constitution that immediately follows the grant to Congress of the power To declare War - namely, the power to grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. These additional words, it is argued, enable Congress to regulate the President's ability to use military force in a manner short of full-scale war. This prevailing interpretation of the Quasi War cases is incorrect and has special significance because the U.S. Court of Appeals for the District of Columbia Circuit gave it credence in 2000 in the war powers case Campbell v. Clinton and because one or more of the cases continues to be cited in litigation concerning the current war on terror.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2004-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67767463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Welfare, Human Dignity, and the Puzzle of What We Owe Each Other","authors":"Amy Wax","doi":"10.2139/SSRN.478561","DOIUrl":"https://doi.org/10.2139/SSRN.478561","url":null,"abstract":"Proponents of work-based welfare reform claim that moving the poor from welfare to work will advance the goals of economic self-reliance and independence. Reform opponents attack these objectives as ideologically motivated and conceptually incoherent. Drawing on perspectives developed by luck egalitarians and feminist theorists, these critics disparage conventional notions of economic desert, find fault with market measures of value, debunk ideals of autonomy, and emphasize the pervasiveness of interdependence and unearned benefits within free market societies. These arguments pose an important challenge to justifications usually advanced for work-based welfare reform. Reform proponents must concede that no member of society can hope to achieve complete personal and economic independence from others. Rather, self-reliance and dependency are always a matter of kind and degree. These states must be understood as having a \"social meaning\" that does not rest on conceptually pure absolutes, but rather on the fulfillment of normative expectations regarding conduct and participation in social and economic life. Within this framework, the fact that self-reliance can never be complete does not undermine its worth or importance as a goal. That dependency is sometimes unavoidable or even desirable does not mean that it should be indulged or accepted in all cases. How might welfare reform advocates construct more effective arguments for minimizing dependency and fostering self-sufficiency among the poor? One approach would look to the distinctions ordinary people make between constructive citizenship and social parasitism. The challenge is to give the idea of constructive citizenship definite and rigorous content - content that serves as a useful guide to wise policy and that makes work-based reform less vulnerable to attack on theoretical grounds. The paper explains how the concept of conditional reciprocity, as it informs common notions of acceptable redistribution, can help achieve this goal.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67745956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stopping Time: The Pro-Slavery and 'Irrevocable' Thirteenth Amendment","authors":"Christopher Bryant","doi":"10.2139/SSRN.467280","DOIUrl":"https://doi.org/10.2139/SSRN.467280","url":null,"abstract":"In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution. Recent years have witnessed an outpouring of academic writing on the amending power. Salient examples of this scholarship are the works of Yale Law School Professors Bruce Ackerman and Akhil Amar, who have raised distinct challenges to the claim that Article V constitutes the sole legitimate means for constitutional revision. Their imaginative and controversial work has in turn prompted vigorous debate among constitutional scholars, political scientists, and historians about the role Article V can and should play in our constitutional order. As voluminous as the recent Article V scholarship has been, at least one fundamental question has gone virtually unnoticed: what, if anything, prevents or limits the use of Article V to make procedural or substantive changes to the amending power itself? This question, which presents problems of the greatest theoretical difficulty, was posed starkly by Mr. Corwin's 1861 proposal. This article uses that Civil War-era proposal as a lens through which to study the tension between the claim that Article V articulates the exclusive procedure by which the Constitution may be amended and our nation's historical commitment to the ideal that the people are sovereign. Revisiting the long-forgotten Corwin Amendment illuminates current debates about the legal and political theory by which the U.S. Constitution can set forth the sole means for its revision. By understanding why the Corwin Amendment would have failed in its stated purpose (because a subsequent Article V amendment would have been sufficient to repeal it and grant Congress power over slavery), we discover certain fundamental constitutional principles. Those principles, important in their own right, also raise novel questions concerning the contemporary claims of Professors Ackerman and Amar that Article V cannot be the exclusive procedure for legitimate constitutional change.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.467280","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Proliferation of Legal Truth","authors":"J. Balkin","doi":"10.2139/SSRN.383400","DOIUrl":"https://doi.org/10.2139/SSRN.383400","url":null,"abstract":"This essay describes an important aspect of law's power. Law has power not only because it sets prices and sanctions on behavior, but also because it shapes and colonizes human understanding. Through the creation of legal categories, distinctions, causes of action, institutions and devices, law is continuously proliferating legal truths into the world, making things true and false in the eyes of the law. This capacity to create truth and to make things real is the flip side of law's power. Law has power because it can make things true or false in ways that matter to us; conversely, law can make things true or false in ways that matter to us because it has power over us. The proliferation of legal truth is important for three reasons. First, the proliferation of legal truth shapes, directs, and constrains how people live their lives. Second, the proliferation of legal truth colonizes human imagination, shaping people's beliefs and their understandings about social reality. Third, the proliferation of legal truth is important because truth in the eyes of the law is not the only truth, and the way the world looks to law is not the only reality. Law's power to enforce its vision of the world can clash and conflict with other practices of knowledge, like medicine or psychology, and with other forms of truth, like historical or scientific truth.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68654753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Roe and the new frontier.","authors":"Lisa Shaw Roy","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24833872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Truth, Truths, \"Truth,\" and \"Truths\" in the Law","authors":"S. Haack","doi":"10.5840/JPSL20033711","DOIUrl":"https://doi.org/10.5840/JPSL20033711","url":null,"abstract":"The best way to get a clear view of questions about truth--in the law or anywhere else--is to start, not with debates over \"modernism\" versus \"post-modernism,\" and the whole dubious history of ideas they presuppose, but with a few simple distinctions. Truth is the property of being true, what it is to be true. Of the umpteen competing philosophical theories of truth, the most plausible are, in intent or in effect, generalizations of the Aristotelian Insight that \"to say of what is that it is, or of what is not that it is not, is true.\" (1) These theories explain truth without reference to what you or I or anyone believes, without reference to culture, paradigm, or perspective. Some of them, the various versions of the correspondence theory, turn the emphatic adverb for which we reach when we say that p is true just in case actually, really, in fact, p, into serious metaphysics, construing truth as a relation, structural or conventional, of propositions or statements to facts or reality. (2) Others, such as Tarski's semantic theory, (3) Ramsey's \"redundancy\" theory, (4) and the contemporary deflationist, minimalist, disquotationalist, and prosententialist theories that are their descendants, (5) don't require such an elaborate ontological apparatus. Truths are the many and various propositions, beliefs, etc., which are true, including: particular empirical claims, scientific theories, historical propositions, mathematical theorems, logical principles, textual interpretations, statements about what a person believes or wants or intends, about social roles and rules, etc. To say that a claim is true is not to say that anyone, or everyone, believes it, but that things are as it says. However, some claims are such that the relevant things--a person's beliefs or intentions, a legal or grammatical rule--depend, in one way or another, on us; and some are such that it makes sense to ascribe a truth-value only relative to this or that community or social practice. Moreover, not every sentence, not even every declarative sentence, manages to express something true or false; some, for instance, are too indeterminate in meaning to have a truth-value. The effect of scare quotes is to turn an expression meaning \"X\" into an expression meaning \"so-called 'X'.\" So scare-quotes \"troth,\" as distinct from truth, is what is taken to be truth; and scare-quotes \"truths,\" as distinct from truths, are claims, propositions, or beliefs, which are taken to be truths--many of which are not really troths at all. We humans, after all, are thoroughly fallible creatures. Even with the best will in the world, finding out the truth can be hard work; and we are often willing, even eager, to take pains to avoid discovering, or to cover up, unpalatable truths. The rhetoric of truth, moreover, can be used in nefarious ways. Hence an important source of the idea that truth is merely a rhetorical or political concept: the seductive, but crashingly invalid, argument I call the \"Passes-for","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.5840/JPSL20033711","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71265289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them","authors":"R. Delahunty, J. Yoo","doi":"10.2139/SSRN.331202","DOIUrl":"https://doi.org/10.2139/SSRN.331202","url":null,"abstract":"The terrorist attacks on the United States on September 11, 2001 raised important questions concerning the President's authority to take military action in response. Although Congress acted promptly to pass legislation authorizing the President to take military action against the terrorists and those linked to them, we argue that the President has broad constitutional power, even without such legislation, to deploy military force to retaliate against those implicated in the September 11 attacks. Congress acknowledged this inherent executive power in its recent legislation, as it had earlier in the War Powers Resolution. Further, the President has the inherent power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations. Finally, we argue that the President's constitutional authority to deploy military force against terrorists and the states that harbor or support them includes both the power to respond to past attacks and the power to act preemptively against future ones. Our analysis falls into four parts. First, we examine the constitutional text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the nation in its foreign relations, to use military force abroad, especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing executive and judicial statements and decisions interpreting the President's constitutional powers. Third, we analyze the relevant historical precedent, which supports the argument for Presidential authority in these matters. Finally, we discuss congressional enactments that acknowledge the President's full authority to use force both to respond to the September 11 attacks on the United States and to deter future strikes of that nature.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2002-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.331202","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68583870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Terrorism, Federalism, and Police Misconduct","authors":"William J. Stuntz","doi":"10.2139/SSRN.294253","DOIUrl":"https://doi.org/10.2139/SSRN.294253","url":null,"abstract":"Criminal law enforcement in the United States is overwhelmingly local - the large majority of police and prosecutors work for local governments, the large majority of arrests are made by local police, the overwhelming majority of criminal prosecutions are brought by local district attorneys' offices, and the great bulk of prisoners are in their cells as a result of those local prosecutions. The states do very little policing and almost no prosecution. And while the federal government does more in this sphere, it is still very much a backstop. This essay explores two questions: How does that allocation of law enforcement power affect the level of police misconduct in the United States? And how will the war on terrorism change both the allocation and the amount of police misbehavior? In brief, my answers to those questions are: In a system like ours, federal police - chiefly the FBI - may present more serious misconduct problems than do local police, because the FBI is neither politically accountable nor tightly constrained by limited resources. (Local police are both accountable and resource-constrained.) The war on terrorism may change that conclusion, by increasing not only the FBI's power, but also its level of accountability and constraint.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2001-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68439088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cyberjam: The Law and Economics of Internet Congestion of the Telephone Network","authors":"J. Sidak, Daniel F. Spulber","doi":"10.2139/SSRN.282995","DOIUrl":"https://doi.org/10.2139/SSRN.282995","url":null,"abstract":"In this article we evaluate the economic and legal implications of allowing ISPs to avoid paying for interstate access by taking advantage of the FCC's access-charge exemption for enhanced service providers (ESPs). We agree with the FCC's conclusion that the dramatic growth of Internet usage and Internet services create significant benefits for the economy and the American people. We discuss, however, that the ESP exemption creates traffic jams at the on-ramps to the information superhighway- what we call a cyberjam.In Part II, we examine the role that competitive prices play in influencing supply and demand in the market for access to Internet services over the PSTN. In Part III, we examine the economics of network congestion. In Part IV, we examine the pricing of access to ISPs over the PSTN. In Part V, we consider property rights issues associated with the costs of the FCC's tentative conclusion to continue the temporary ESP exemption. In Part VI, we argue that is unlawful for the FCC to order incumbent LECs to continue subsidizing ISPs through the perpetuation of the currently temporary ESP exemption from interstate access charges, or through any other artifice.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2001-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68364082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}