Virginia Law Review最新文献_第7页

Supervising Federal Capital Punishment: Why the Attorney General Should Defer When U.S. Attorneys Recommend against the Death Penalty 监督联邦死刑：当美国检察官建议反对死刑时，为什么司法部长应该推迟

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-11-01 DOI: 10.2307/3202361

J. Gleeson

引用次数: 5

A Legal U-Turn: The Rehnquist Court Changes Direction and Steers Back to the Privacy Norms of the Warren Era 法律的180度大转弯:伦奎斯特法院改变方向，回到沃伦时代的隐私规范

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-11-01 DOI: 10.2307/3202362

Melissa Arbus

引用次数: 2

Tom Paine's Constitution 汤姆·潘恩的《宪法》

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-10-01 DOI: 10.2307/3202395

R. West

{"title":"Tom Paine's Constitution","authors":"R. West","doi":"10.2307/3202395","DOIUrl":"https://doi.org/10.2307/3202395","url":null,"abstract":"In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that \"in America the law is king.\" What, precisely, is the \"law\" that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practices might be different if Justice Marshall had enforced Paine’s conception of the Constitution in Marbury and McCulloch, and concludes with some thoughts on what we have lost by turning away from Paine’s constitutional vision.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"1413"},"PeriodicalIF":2.6,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202395","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038957","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}

引用次数: 2

"Marbury," Marshall, and the Politics of Constitutional Judgment “马布里”，马歇尔和宪法判决的政治

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-10-01 DOI: 10.2307/3202393

C. Eisgruber

引用次数: 0

Tolls on the Information Superhighway: Entitlement Defaults for Clickstream Data 信息高速公路上的收费：点击流数据的权限默认值

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-09-01 DOI: 10.2307/3202424

Lee B. Kovarsky

引用次数: 0

Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983 习惯和习惯作为州法色彩下的行为:评1983年第1节被遗忘的条款

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-09-01 DOI: 10.2139/SSRN.353364

G. Rutherglen

{"title":"Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983","authors":"G. Rutherglen","doi":"10.2139/SSRN.353364","DOIUrl":"https://doi.org/10.2139/SSRN.353364","url":null,"abstract":"Section 1983 is the general federal civil rights statute which creates a cause of action for any deprivation of federal rights \"under color of any statute, ordinance, regulation, custom, or usage of any state.\" The terms \"custom\" and \"usage\" in this context have a meaning that, if it was once known, has been forgotten, and to the extent that it resembles the ordinary meaning of these terms contrasts sharply with the other sources of state law listed in the statute. If these terms are given their ordinary meaning, then a wide range of private action would suddenly come within the coverage of the statute, allowing claims to be brought against private individuals and institutions for actions taken systematically to deny federal rights. This article tries to determine why the statute has not received this interpretation, and indeed, why the terms \"custom\" and \"usage\" have received virtually no interpretation at all in current decisions under section 1983. The meaning of these terms is analyzed in four different periods: in the era before section 1983 was enacted as part of the Civil Rights Act of 1871; in the debates over this act and over similar provisions in other civil rights acts passed during Reconstruction; in judicial decisions in the late nineteenth century invalidating or narrowly interpreting these acts; and in judicial decisions in the twentieth century that otherwise expanded the scope of the section 1983. In each of these periods, developments in legal doctrine are set against the background of jurisprudential views of the appropriate role of custom as a source of law. The article concludes by examining the implications of this historical inquiry for the current scope of civil rights laws, and particularly for the power of Congress under section 5 of the Fourteenth Amendment.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"925"},"PeriodicalIF":2.6,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604289","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}

引用次数: 3

Evaluating Public Endorsement of the Weak and Strong Forms of Judicial Supremacy 评价公众对弱形式和强形式司法至上的认可

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-09-01 DOI: 10.2307/3202423

B. Feldman

引用次数: 1

'Rational Discrimination,' Accommodation, and the Politics of (Disability) Civil Rights “理性歧视”、“迁就”和(残疾)公民权利的政治

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-07-24 DOI: 10.2307/3202421

Samuel Bagenstos

{"title":"'Rational Discrimination,' Accommodation, and the Politics of (Disability) Civil Rights","authors":"Samuel Bagenstos","doi":"10.2307/3202421","DOIUrl":"https://doi.org/10.2307/3202421","url":null,"abstract":"In the thirteen years since Congress enacted the Americans with Disabilities Act (\"ADA\"), many commentators have sought to draw a strong normative distinction between the statute's mandate to provide \"reasonable accommodation\" to people with disabilities and the antidiscrimination requirements of the civil rights laws that emerged in the 1960s and 1970s. This move has been most obvious among those who are skeptical of the ADA, but even most supporters of the ADA have taken the same view. The conventional wisdom, as evidenced by a near-consensus in the literature, seems to be that - whatever the descriptive similarities between them - there is a fundamental normative difference between antidiscrimination requirements and accommodation mandates: Antidiscrimination requirements call on employers to forego acting on illegitimate preferences (like aversive prejudice) that they ought not to have in the first place, while accommodation mandates prohibit employers from acting on the normally legitimate desire to save money. One goal of this Article is to challenge that widely held point of view. The Article's basic aim is to demonstrate that the ADA's accommodation requirement is fundamentally of a piece with the core antidiscrimination requirements of Title VII, but the Article also makes a more general argument about the fundamental normative similarity between antidiscrimination and accommodation. It seeks to show that the arguments that have been proffered for a strong normative distinction between antidiscrimination and accommodation are unpersuasive, and that the two modes of civil rights law have a great deal in common both practically and morally. Along the way, the Article contends that the notion of \"rational discrimination\" - of which the failure to accommodate is often cited as an example - is a conceptually unstable basis on which to build any normative theory of antidiscrimination law. The Article then engages the question of why so many people from so many perspectives place so much weight on what is ultimately a shaky normative distinction between antidiscrimination and accommodation. The Article contends that the antidiscrimination/accommodation distinction seems to serve an important political function for two somewhat different groups: mainstream liberal supporters of the 1960s civil rights revolution, who hope to protect traditional civil rights laws against the backlash that the ADA has provoked; and more radical leftist critics of identity politics, who hope to preempt liberal challengers by claiming that their critique is not directed at the statutes that emerged from that civil rights revolution. This move ultimately cannot do the work that mainstream liberal civil rights supporters or anti-identitarian leftists hope, but the political uses of the antidiscrimination/accommodation distinction are telling nonetheless.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"825-923"},"PeriodicalIF":2.6,"publicationDate":"2003-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202421","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039045","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}

引用次数: 29

Constitutional Existence Conditions and Judicial Review 宪法存在条件与司法审查

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-06-25 DOI: 10.2139/SSRN.419762

Michael C. Dorf, M. Adler

{"title":"Constitutional Existence Conditions and Judicial Review","authors":"Michael C. Dorf, M. Adler","doi":"10.2139/SSRN.419762","DOIUrl":"https://doi.org/10.2139/SSRN.419762","url":null,"abstract":"Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call \"existence conditions\" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless \"enforces\" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with \"application conditions\" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to \"under-enforce\" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are \"perspectival\" - that is, they have different content for different addressees.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"1105"},"PeriodicalIF":2.6,"publicationDate":"2003-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68726090","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}

引用次数: 6

When Code Isn't Law 当代码不是法律

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-06-05 DOI: 10.2139/SSRN.413201

Tim Wu

{"title":"When Code Isn't Law","authors":"Tim Wu","doi":"10.2139/SSRN.413201","DOIUrl":"https://doi.org/10.2139/SSRN.413201","url":null,"abstract":"The prominent effects of computer code have made it difficult to ignore the fact that code can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) \"code is law.\" But the idea remains extremely vague. Most problematically, none of these understandings of code and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected. This Article proposes a new and concrete way to understand the relationship between code and compliance with law. I propose to study the design of code as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer (\"P2P\") filesharing, explored in depth in this Article, illustrates the possibility of using code design as an alternative mechanism of interest group behavior. The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer code can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"45 1","pages":"679"},"PeriodicalIF":2.6,"publicationDate":"2003-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68703351","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}

引用次数: 70