Virginia Law Review最新文献

{"title":"Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms","authors":"James E. DiTullio, John B. Schochet","doi":"10.2307/3202417","DOIUrl":"https://doi.org/10.2307/3202417","url":null,"abstract":"INTRODUCTION .............................................................................1094 I. LIFE TENURE: AN ESSENTIAL FEATURE OF THE CONSTITUTION?.........................................................................1098 II. THE PROBLEM..........................................................................1101 A. Strategic Retirements ............................................................ 1101 B. Incentives for Young Nominees........................................... 1110 C. Random Distribution of Appointments .............................. 1116 III. THE SOLUTION AND WHY IT SOLVES THE PROBLEM...........1119 A. Outline of the Proposed Constitutional Amendment........ 1119 B. The Proposed Constitutional Amendment Removes Incentives for Strategic Retirements..................................... 1120 C. The Proposed Constitutional Amendment Removes Incentives for Young Nominees........................................... 1122 D. The Proposed Constitutional Amendment Fairly Distributes Appointments..................................................... 1123 IV. WHY THE PROPOSED CONSTITUTIONAL AMENDMENT IS","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1093"},"PeriodicalIF":2.6,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202417","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038929","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":"Crossroads in Cambodia: The United Nation's Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge","authors":"Scott Luftglass","doi":"10.2307/3202401","DOIUrl":"https://doi.org/10.2307/3202401","url":null,"abstract":"“During the Khmer Rouge period between April 1975 to January 1979, nearly a quarter of Cambodia’s population died as a result of extrajudicial executions, starvation and disease. In addition, tens of thousands of people were cruelly abused, enslaved, systematically tortured and killed. In this dark time, there was a generation of professional torturers. To date, not one of them has been brought to account for the suffering they caused.” – Amnesty International","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"893"},"PeriodicalIF":2.6,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202401","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039008","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":"More Is Less","authors":"Philip A. Hamburger","doi":"10.2307/3202400","DOIUrl":"https://doi.org/10.2307/3202400","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"835"},"PeriodicalIF":2.6,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038979","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":"Of Power and Responsibility: The Political Morality of Federal Systems","authors":"Daniel Halberstam","doi":"10.2307/3202399","DOIUrl":"https://doi.org/10.2307/3202399","url":null,"abstract":"This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. \"entitlements\" approach, which looks only to political self-interest, with the dominant \"fidelity\" approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole. This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a \"conservative\" fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a \"liberal\" fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional \"entitlements.\"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"731"},"PeriodicalIF":2.6,"publicationDate":"2004-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202399","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038968","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":"Constitutional Decision Rules","authors":"Mitchell N. Berman","doi":"10.2307/3202427","DOIUrl":"https://doi.org/10.2307/3202427","url":null,"abstract":"Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a concep","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1-168"},"PeriodicalIF":2.6,"publicationDate":"2004-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202427","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038672","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":"Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA","authors":"M. Stein","doi":"10.2307/3202418","DOIUrl":"https://doi.org/10.2307/3202418","url":null,"abstract":"While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an \"emancipation proclamation\" for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA's passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees' labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. By contrast, David Engle & Frank Munger's thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is \"working,\" and in so doing provides an alternative appraisal of the statute's efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA's mere presence has changed disabled persons' identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a \"new theory\" of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. This Essay seeks to bridge the in","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1151"},"PeriodicalIF":2.6,"publicationDate":"2004-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202418","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038989","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":"Thomas Jefferson Counts Himself into the Presidency","authors":"B. Ackerman, D. Fontana","doi":"10.2307/3202441","DOIUrl":"https://doi.org/10.2307/3202441","url":null,"abstract":"The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution's explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"551"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202441","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039234","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":"Information Costs in Patent and Copyright","authors":"Clarisa Long","doi":"10.2307/3202440","DOIUrl":"https://doi.org/10.2307/3202440","url":null,"abstract":"Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"465"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202440","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039178","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":"\"Happy\" Birthday, \"Brown v. Board of Education?\" \"Brown's\" Fiftieth Anniversary and the New Critics of Supreme Court Muscularity","authors":"D. J. Garrow, M. Klarman","doi":"10.2307/3202443","DOIUrl":"https://doi.org/10.2307/3202443","url":null,"abstract":"EN years ago Professor Michael J. Klarman published an article entitled “Brown, Racial Change, and the Civil Rights Movement” in the Virginia Law Review. Portions of Professor Klarman’s argument were so notable that another discipline’s most widely read scholarly publication, the Journal of American History (“JAH”), printed a briefer version of Klarman’s interpretation just four months later. Professor Klarman’s Virginia Law Review article was accompanied by critical commentaries by this writer, Professor Gerald N. Rosenberg, and Professor Mark Tushnet, and a reply by Professor","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"693"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202443","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039298","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":"Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts","authors":"D. Bentsen","doi":"10.2307/3202442","DOIUrl":"https://doi.org/10.2307/3202442","url":null,"abstract":"EGISLATIVE supremacy over the substance of criminal law is a virtually unchallenged proposition. In contrast to the explosion of the constitutionalization of criminal procedure, constitutional regulation of substantive criminal law has been limited and sporadic. The courts have, however, periodically undertaken efforts to create an area of substantive constitutional criminal law. When the courts have imposed constitutional limits on the substance of criminal law they have done so in three contexts. First, courts have enforced specific constitutional provisions, such as the First Amendment’s prohibition of the criminalization of most types of speech. Second, and more generally, the United States Supreme Court has imparted limited actus reus and mens rea requirements. Finally, the Court has interpreted the Eighth Amendment to require proportionality between the underlying crime and the punishment imposed. Guidance as to where these boundaries fall, however, has often been hazy and of dubious value.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"645"},"PeriodicalIF":2.6,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202442","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039248","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}