Virginia Law Review最新文献

{"title":"The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson","authors":"William P. Marshall","doi":"10.2139/SSRN.462521","DOIUrl":"https://doi.org/10.2139/SSRN.462521","url":null,"abstract":"In his recently essay, Why Conservative Jurisprudence Is Compassionate, Judge J. Harvie Wilkinson's defends conservative jurisprudence against a claim that he believes unfairly derogates the normative attractiveness of conservative jurisprudence - specifically that conservative jurisprudence lacks compassion. To Judge Wilkinson, conservative jurisprudence, properly understood, can \"more than hold [its] own\" against its liberal counterpart in the compassion debate. This essay responds to Judge Wilkinson's thesis. It first articulates the arguments advanced by Judge Wilkinson in support of his thesis but then suggests that even if his contentions hold some resonance, they still fall short of the goal of defending contemporary conservative jurisprudence as compassionate. To begin with, Judge Wilkinson's arguments are essentially only negative points about the purported over-use of compassion in liberal jurisprudence; they are not positive propositions suggesting that conservatism has its own unique vision or understanding of compassion. Moreover, Judge Wilkinson's attempt to defend conservative jurisprudence is misplaced because the conservatism he describes is not contemporary conservative jurisprudence. Rather contemporary conservative jurisprudence, in order to achieve its desired results, is marked with the exact same jurisprudential deficiencies that Judge Wilkinson condemns in liberal jurisprudence. Finally, Judge Wilkinson's attempt to defend contemporary conservative thought against liberal attack is misdirected because the liberal/conservative dichotomy he describes is not the primary line that currently divides the conservative and liberal camps. The division is not between a jurisprudence that inappropriately responds to individual poignancies and one that relies on sharp lines and collective concerns. Rather the essential division is between a liberal jurisprudence geared to protecting the marginalized groups in society versus a conservative jurisprudence that tends to reinforce the existing powers of dominant groups. As this essay demonstrates, conservatives have taken their role in protecting entrenched interests quite seriously. They have expanded the constitutional rights of already powerful interests. They have opposed liberal attempts to increase the constitutional protections accorded marginalized groups. They have invalidated legislative attempts that would reduce the disparities between the powerful and the marginalized in the political marketplace. They have consistently resisted both constitutional and legislative attempts to increase the access of disadvantaged litigants to courts of justice. Accordingly, the essay contends that the claim that such a jurisprudence is \"compassionate\" is difficult to sustain.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"355"},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67739466","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":"Selection Effects in Constitutional Law","authors":"Adrian Vermeule","doi":"10.2139/SSRN.523542","DOIUrl":"https://doi.org/10.2139/SSRN.523542","url":null,"abstract":"The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making \"ambition counteract ambition\"; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials' incentives to suppress political opposition; and so forth. In this experimental essay I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of \"selection effects.\" Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power. This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove \"self-stabilizing\": the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove \"self-negating\": the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance and voting rights to criminal sentencing, free speech, and affirmative action.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"1 1","pages":""},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67756500","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":"Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment","authors":"D. Rosenberg, Randy J. Kozel","doi":"10.2139/SSRN.485242","DOIUrl":"https://doi.org/10.2139/SSRN.485242","url":null,"abstract":"The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current procedural rules are inadequate to foreclose nuisance-value strategies. Class action is commonly thought to exacerbate the nuisance-value settlement problem to the systematic disadvantage of defendants. This concern has contributed to the growing support among courts and commentators for subjecting class actions to precertification merits review (PCMR), generally understood as conditioning class certification on prior screening of class claims for some threshold level of merit. This article proposes mandatory summary judgment (MSJ) as a solution to the problem of nuisance-value settlement in class actions and in civil litigation generally. Essentially, MSJ denies judicial enforceability to any settlement agreement entered into before the nuisance-value claim or defense has been submitted for merits review on a motion for summary judgment or other standard dispositive motion. Assessing the potential costs of the MSJ solution, we conclude that neither the opportunity for evading MSJ strictures nor the possibility of adding expenses to the settlement of non-nuisance-value litigation outweighs the benefits of MSJ. MSJ will be most cost-effective in the class action context, given the already existing general requirements of judicial review and approval of class action settlements, but MSJ should also prove beneficial in preempting nuisance-value strategies outside of class actions in the standard separate action context. With the MSJ solution set out, the article moves finally to offering a more exhaustive analysis of the theoretical soundness and practical efficacy of MSJ in the class action context, where its marginal benefits are arguable the greatest. First, the article challenges the commonly held belief that class action certification exacerbates the nuisance-value settlement problem, attempting to displace the conventional understanding of complex litigation with a new conceptual framework based on the recharacterization of the class action as part of a continuum of litigation processes rather than an isolated litigation mechanism. Second, the article provides a comparative analysis of MSJ and PCMR as solutions to the nuisance-value problems that do exist in the class action context, concluding that MSJ presents the superior and more cost-effective option.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"33 1","pages":"1849"},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748296","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 federal common law origins of judicial jurisdiction: Implications for modern doctrine","authors":"James M. Weinstein","doi":"10.2307/3202428","DOIUrl":"https://doi.org/10.2307/3202428","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"169-300"},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202428","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038725","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":"Corporations, Society and the State: A Defense of the Corporate Tax","authors":"R. Avi-Yonah","doi":"10.2139/SSRN.516202","DOIUrl":"https://doi.org/10.2139/SSRN.516202","url":null,"abstract":"This article attempts to provide the first comprehensive rationale for defending the current corporate income tax. It argues that the usual reasons given for the tax (primarily as an indirect way of taxing shareholders, or alternatively as a form of benefit tax) are inadequate. It then explains what the original rationale to adopt this tax was in 1909, namely to regulate managerial power, and that this rationale stems from the \"real\" view of the corporation, which was the dominant view throughout the many transformations underwent by the corporate form from Roman times to the present. Turning to normative argument, the article then argues that the regulatory rationale given for taxing corporations in 1909 is still valid, since similar social conditions continue to exist, and in fact is strengthened by the rise of multinational enterprises. Finally, the article argues that this rationale is necessary from a normative perspective to support the fight against the two crucial current threats to the corporate tax posed by the corporate tax shelter and tax competition phenomena.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1193"},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67755060","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":"\"Lyons v. Oklahoma,\" the NAACP, and Coerced Confessions under the Hughes, Stone, and Vinson Courts, 1936-1949","authors":"John F. Blevins","doi":"10.2307/3202431","DOIUrl":"https://doi.org/10.2307/3202431","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"387"},"PeriodicalIF":2.6,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202431","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038743","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":"\"Zelman's\" Evolving Legacy: Selective Funding of Secular Private Schools in State School Choice Programs","authors":"Colleen Smith","doi":"10.2307/3202370","DOIUrl":"https://doi.org/10.2307/3202370","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"1953"},"PeriodicalIF":2.6,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202370","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038260","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":"Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us About the Law","authors":"Michael S. Green","doi":"10.2307/3202369","DOIUrl":"https://doi.org/10.2307/3202369","url":null,"abstract":"Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields. In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all. The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call Dworkin's fallacy in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word law refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore - who misderive jurisprudential conclusions from this debate. In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make law mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate. Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"1897"},"PeriodicalIF":2.6,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202369","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038204","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":"Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission","authors":"D. Glazier","doi":"10.2307/3202371","DOIUrl":"https://doi.org/10.2307/3202371","url":null,"abstract":"President Bush's military commission order, based upon FDR's guidance for the 1942 trial of Nazi saboteurs, authorized procedures departing substantially from court-martial practice. This paper demonstrates the military commission, whose actual origin is traced to the Mexican War in 1847, differed from the statutory court-martial primarily in jurisdiction, not procedure. It argues that Article 36 of the Uniform Code of Military Justice should be read, particularly in light of developments in contemporary international law and the Charming Betsy canon, to require continued commonality between the two tribunals. This argument was substantially adopted by the district court in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 n12, 169 n15, 170 n16 (D.D.C. 2004).","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"2005"},"PeriodicalIF":2.6,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202371","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038312","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":"Review of \"Structure and Relationship in Constitutional Law\"","authors":"John Harrison, Charles L. Black join","doi":"10.2307/3202363","DOIUrl":"https://doi.org/10.2307/3202363","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"1779"},"PeriodicalIF":2.6,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202363","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038184","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}