New York University Law Review最新文献

{"title":"Provisional Precedent: Protecting Flexibility in Administrative Policymaking","authors":"K. Bamberger","doi":"10.2139/SSRN.363120","DOIUrl":"https://doi.org/10.2139/SSRN.363120","url":null,"abstract":"Under the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. This Article argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. It illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, the Article proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"12 1","pages":"1272"},"PeriodicalIF":2.4,"publicationDate":"2002-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82380484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Voting Technology and Democracy","authors":"P. Schwartz","doi":"10.2139/SSRN.325382","DOIUrl":"https://doi.org/10.2139/SSRN.325382","url":null,"abstract":"Voting Technology and Democracy, 77 N.Y.U. L. Rev. 625 (2002), examines a phenomenon that I term the \"voting-technology divide.\" The \"divide\" was caused by the deployment of election technology in November 2000 with better and worse levels of feedback to voters. Through an analysis of data from the contested Florida election of November 2000, this article demonstrates the critical importance of feedback in informing voters whether the technology they use to vote will validate their ballots according to their intent -- an advantage I find to have been distributed on unequal terms. In this article, I also examine the various judicial opinions in the litigation following the Florida election and argue that they differed most dramatically in their embrace of competing epistemologies of technology. Finally, I evaluate the ongoing efforts to reform the unequal distribution of voting technology in the United States. Some efforts at litigation and legislation have promise, but in many instances they are stalled, and in many others they exhibit shortcomings that would leave the \"voting technology divide\" in place for future elections.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"1 1","pages":"625"},"PeriodicalIF":2.4,"publicationDate":"2002-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83735022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Givings, Takings, and the Fallacy of Forward-Looking Costs","authors":"J. Sidak, Daniel F. Spulber","doi":"10.2139/SSRN.257322","DOIUrl":"https://doi.org/10.2139/SSRN.257322","url":null,"abstract":"Mr. Sidak and Professor Spulber extend here the analysis in Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review. They respond to comments and criticisms raised not only by Professors Baumol and Merrill, but also by Judge Williams and Professor Williamson in their Comments published last year. Sidak and Spulber begin by exploring the constitutional limitations on the government's ability to redefine the public purpose to which a regulated utility has dedicated its private property. Then, the authors examine whether the government has made givings that implicitly compensate the regulated firm for its diminution in value owing to the imposition of policies mandating network unbundling at regulated prices. Sidak and Spulber refine the limiting principles for the recovery of stranded costs that they articulated in their earlier article and show how those principles reconcile with the actual treatment of losses from deregulation in disparate industries. Next, they expose the economic fallacies in the notion of forward-looking costs as that term has been used by the Federal Communications Commission and state public utility commissions to set prices for mandatory network access under the Telecommunications Act of 1996. The authors analyze the Supreme Courts 1996 decision in United States v. Winstar Corp. and argue that the reasoning employed by seven Justices in that case comports not only with earlier decisions of the Court construing the regulatory contract with public utilities, but also with the contemporary economic analysis of why the regulatory contract is essential and efficient. Sidak and Spulber explain how transition bonds may solve the stranded cost conundrum in the telecommunications and electric power industries by permitting the securitization of stranded costs in a manner that restores investors' faith in the state's ability to make credible commitments. Finally, the authors examine the significance of the Eighth Circuit's 1997 decision in Iowa Utilities Board v. FCC for the debate over deregulatory takings and breach of the regulatory contract.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"41 1","pages":"1068-1163"},"PeriodicalIF":2.4,"publicationDate":"2001-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88111010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Switching the Default Rule","authors":"C. Sunstein","doi":"10.2139/SSRN.255993","DOIUrl":"https://doi.org/10.2139/SSRN.255993","url":null,"abstract":"There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. The default rule can create an endowment effect, making employees value certain rights more simply because they have been granted such rights in the first instance. Similarly, the default rule for savings plans, set by employers or law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead employee confusion or bargaining strategy.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"14 1","pages":"106"},"PeriodicalIF":2.4,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75016475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Positive Theory of Chapter 11","authors":"Kevin A. Kordana, E. Posner","doi":"10.2139/SSRN.137897","DOIUrl":"https://doi.org/10.2139/SSRN.137897","url":null,"abstract":"This paper analyzes the voting rules of Chapter 11 using models from noncooperative game theory. Prior work has relied mainly on a model of bargaining between the debtor and a single creditor with perfect information. We expand on this work by considering two-party bargaining with imperfect information, and bargaining (with perfect and imperfect information) among a single debtor and multiple creditors. In addition, prior work has focused on explaining the role of the exclusivity period, the absolute priority rule, and the liquidation floor in Chapter 11 bargaining. We also consider the role of majoritarianism and supermajoritarianism, bicameralism, and classification, and the desirability of allowing creditors to purchase claims from each other.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"10 1","pages":"161"},"PeriodicalIF":2.4,"publicationDate":"1998-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82834636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Against Constitutional Theory","authors":"R. Posner","doi":"10.4135/9781071800942.n30","DOIUrl":"https://doi.org/10.4135/9781071800942.n30","url":null,"abstract":"","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"29 1","pages":"1"},"PeriodicalIF":2.4,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83131297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deregulatory takings and breach of the regulatory contract","authors":"J. Sidak, Daniel F. Spulber","doi":"10.2139/SSRN.257311","DOIUrl":"https://doi.org/10.2139/SSRN.257311","url":null,"abstract":"Over the past century, as the regulatory state steadily expanded its reach, courts frequently addressed claims that regulatory actions amounted to an unconstitutional taking. Recently, however, legislation in the telecommunications and electric power industries have brought deregulatory concerns to the fore. In this landmark Article, Mr. Sidak and Professor Spulber present the first detailed analysis of the interaction between the Takings Clause, deregulation, network pricing, and contract law. In the typical case of regulated industries, firms and their investors agree to bear considerable incumbent burdens in exchange for a regulated rate of return. Sidak and Spulber first demonstrate that this arrangement represents a regulatory contract and find that recent deregulatory measures constitute breach. The authors then argue that, whether or not a regulatory contract in fact exists, recent mandatory unbundling in the electric power industry and open-access regulation in the telecommunications field effectuate a taking without just compensation. Finally, relying on concepts such as investment-backed expectations and the efficient component-pricing rule, the authors not only demonstrate that damages would be equivalent under either contract or takings theory, but also warn that governments could face enormous liability for their deregulatory measures.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"64 1","pages":"851-999"},"PeriodicalIF":2.4,"publicationDate":"1996-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91277348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What does it mean to be a \"parent\"? The claims of biology as the basis for parental rights.","authors":"J. Hill","doi":"10.4324/9781315090085-3","DOIUrl":"https://doi.org/10.4324/9781315090085-3","url":null,"abstract":"Modern technology has wreaked havoc on conventional and legal notions of parenthood For example, the traditional legal presumption granting parental rights to a child's biological mother seems at least questionable when the biological mother differs from the intended mother. As a resul courts employing traditional constitutional and family law doctrines have not adequately sorted out the claims of biological, gestational, and intended parents In this Article Professor Hill argues that the claims of those who first intend to have a child should prevail over those who assert parental rights on the basis of a biological or gestational relation. Such a view, he argues, is consistent with existing case law on the constitutional rights to procreation and privacy and supported by moral theory and modern scientific evidence","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"35 1","pages":"353-420"},"PeriodicalIF":2.4,"publicationDate":"1991-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87619731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Dialectic of Rights and Politics: Perspectives from the Women’s Movement [1986]","authors":"E. Schneider","doi":"10.4324/9780429500480-18","DOIUrl":"https://doi.org/10.4324/9780429500480-18","url":null,"abstract":"","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"275 1","pages":"318-332"},"PeriodicalIF":2.4,"publicationDate":"1986-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80021770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privacy as an Aspect of Human Dignity : An Answer to Dean Prosser","authors":"E. Bloustein","doi":"10.1017/CBO9780511625138.007","DOIUrl":"https://doi.org/10.1017/CBO9780511625138.007","url":null,"abstract":"Introduction Three-quarters of a century have passed since Warren and Brandeis published their germinal article, “The Right of Privacy.” In this period many hundreds of cases, ostensibly founded upon the right to privacy, have been decided, a number of statutes expressly embodying it have been enacted, and a sizeable scholarly literature has been devoted to it. Remarkably enough, however, there remains to this day considerable confusion concerning the nature of the interest which the right to privacy is designed to protect. The confusion is such that in 1956 a distinguished federal judge characterized the state of the law of privacy by likening it to a “haystack in a hurricane.” And, in 1960, the dean of tort scholars wrote a comprehensive article on the subject which, in effect, repudiates Warren and Brandeis by suggesting that privacy is not an independent value at all but rather a composite of the interests in reputation, emotional tranquility and intangible property. My purpose in this article is to propose a general theory of individual privacy which will reconcile the divergent strands of legal development—which will put the straws back into the haystack. The need for such a theory is pressing. In the first place, the disorder in the cases and commentary offends the primary canon of all science that a single general principle of explanation is to be preferred over a congeries of discrete rules.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":"30 1","pages":"156-202"},"PeriodicalIF":2.4,"publicationDate":"1984-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81764674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}