Harvard Law Review最新文献

{"title":"Civil Rights--Eighth Amendment--Third Circuit Holds Parents of Mentally Ill Young Man Held in Solitary Confinement Stated Claims of Cruel and Unusual Punishment.--Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 5","pages":"1481-8"},"PeriodicalIF":3.4,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36300598","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":"Pseudo-Contract and Shared Meaning Analysis","authors":"R. Kar, M. Radin","doi":"10.2139/SSRN.3124018","DOIUrl":"https://doi.org/10.2139/SSRN.3124018","url":null,"abstract":"Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity.The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis — shared meaning analysis — that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract. Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"132 1","pages":"1135-1219"},"PeriodicalIF":3.4,"publicationDate":"2018-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47453665","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 Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power","authors":"N. Parrillo","doi":"10.2139/SSRN.2907797","DOIUrl":"https://doi.org/10.2139/SSRN.2907797","url":null,"abstract":"Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, th","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"685-794"},"PeriodicalIF":3.4,"publicationDate":"2018-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2907797","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41592021","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":"Multiple Chancellors: Reforming the National Injunction","authors":"Samuel L. Bray","doi":"10.2139/SSRN.2864175","DOIUrl":"https://doi.org/10.2139/SSRN.2864175","url":null,"abstract":"In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"417-482"},"PeriodicalIF":3.4,"publicationDate":"2017-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43707377","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 Cost of Accidents","authors":"G. Calabresi","doi":"10.12987/9780300157970","DOIUrl":"https://doi.org/10.12987/9780300157970","url":null,"abstract":"Medicine and Ethics. Problems encountered as science makes genetic control of man a real possibility. Includes discussions of asexual reproduction of men, frozen semen banks, breeding human beings for special purposes.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"1 1","pages":""},"PeriodicalIF":3.4,"publicationDate":"2017-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66375670","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":"Tort Law--Expert Testimony in Asbestos Litigation--District of South Carolina Holds the Every Exposure Theory Insufficient to Demonstrate Specific Causation Even If Legal Conclusions are Scientifically Sound.--Haskins v. 3m Co., Nos. 2:15-cv-02086, 3:15-cv-02123, 2017 WL 3118017 (D.S.C. July 21, 2017).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 2","pages":"658-65"},"PeriodicalIF":3.4,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35656076","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":"Without the Pretense of Legislative Intent","authors":"J. Manning","doi":"10.2139/SSRN.3347325","DOIUrl":"https://doi.org/10.2139/SSRN.3347325","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"130 1","pages":"2397-2433"},"PeriodicalIF":3.4,"publicationDate":"2017-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44073129","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":"Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past","authors":"Josh Chafetz","doi":"10.31228/osf.io/7wnqe","DOIUrl":"https://doi.org/10.31228/osf.io/7wnqe","url":null,"abstract":"\"Unprecedented\" is a dirty word--at least in the context of constitutional politics. The claim that some behavior is unprecedented carries with it a distinct whiff of impermissibility: if it's never been done before, then at the very least the burden is on those who would want to do it to show that it is permissible. (1) A thumb is very firmly placed on the scale against constitutional novelty. The claim that some activity is constitutionally novel is therefore a politically potent one. Of course, to call one act a \"precedent\" for another is not to state a fact about the relationship between them but rather to engage in a creative act of interpretation. Precedential relationships are made, not found, (2) and therefore charges of unprecedentedness represent a political judgment--but one that comes in the guise of a discovery of a fact about the world. In recent years, perhaps nowhere has unprecedented behavior been \"discovered\" with more abandon than in the context of judicial appointments. Part I of this Essay describes recent events in this domain, beginning in the George W. Bush Administration and culminating with the 2017 elimination of the filibuster for all nominees. In particular, it focuses on the discourse surrounding these reforms, noting that at every turn, accusations of \"unprecedented\" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts--two precedential pathways--for recent * rofessor of Law, Cornell Law School. I am grateful to Will Baude, Mike Dorf, Joey Fishkin, Randy Kozel, Marin Levy, David Pozen, Aziz Rana, Catherine Roach, and Justin Zaremby for helpful and thought-provoking comments on earlier drafts. The research and writing of this Essay were funded in part by a gift from the Charles Adelman Fund at Cornell Law School. I gratefully acknowledge the generosity of Charles Adelman and the support his gift provides to legal scholarship. Any remaining errors or infelicities are, of course, my own. events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some avail-able pasts to others. I. The Present By the middle of 2004, Republicans were furious. Three years into George W. Bush's presidency, they were having at best very limited success in stocking the federal courts, and especially the circuit courts, with their preferred personnel. Democrats had held the Senate majority for most of the 107th Congress (2001-2003), (3) and they had used their power to good effect, confirming only 52% of Bush's (4) nominees to the courts of appeals. (5) But Republi","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"131 1","pages":"96-132"},"PeriodicalIF":3.4,"publicationDate":"2017-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44349288","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 Debate That Never Was","authors":"N. Stavropoulos","doi":"10.2139/SSRN.2972256","DOIUrl":"https://doi.org/10.2139/SSRN.2972256","url":null,"abstract":"In September 1994, Professor Ronald Dworkin presented a new paper at the NYU Colloquium in Legal, Political, and Social Philosophy. Earlier that year, the second edition of Professor H.L.A. Hart's The Concept of Law had appeared, which now included as a postscript an edited version of an unfinished manuscript that Hart had left at his death. (1) Hart's Postscript (as it came to be known) was Hart's response to Dworkin's work. In part, the Postscript addressed Dworkin's arguments from the late 1960s and early 1970s that had directly discussed Hart's claims in the book. (2) But it also addressed Dworkin's own theory of law, developed in the 1970s and early 1980s and, most fully and systematically, in Law's Empire, which appeared in 1986. (3) The paper that Dworkin presented at the Colloquium, entitled Hart's Posthumous Reply, (4) was a rebuttal of Hart's claims in the Postscript. This was an exciting development: Dworkin's manuscript circulated rapidly and widely, in spite of the fact that, back then, dissemination of manuscripts relied on photocopier and postal service, or even fax. I. DWORKIN AND HIS CRITICS To understand why this was exciting requires some background. The publication in 1967 of Dworkin's The Model of Rules had set off a fierce debate between Dworkin and a large number of critics. Dworkin's target in that paper was legal positivism, which he defined as a family of theories that purport to explain obligation in law by appeal to the existence of a set of special standards that meet a social test of pedigree: for example, that they have been endorsed by some institution. (5) Dworkin contended that such theories cannot adequately account for the role that certain unenacted moral principles play in grounding legal rights and obligations. (6) This failure, he argued, led the theories to conflate the use of moral judgment in judicial reasoning (a core judicial duty, given the role of principles) with judicial creation of new legal rights and duties to which litigants are retroactively held (which would be a gross violation of that duty). (7) In part, Dworkin framed the discussion as an attack on Hart's theory, which he considered the strongest version of positivism then available. (8) Dworkin's critics from that period sought to defend positivism. They, too, often focused on Hart, framing their arguments as a defence of Hart's (or a Hartian) theory, either by developing responses that they claimed to be available to Hart or by suggesting modifications to Hart's theory that they claimed to be capable of preserving the general positivist outlook that Hart championed and of making the modified theory immune to Dworkin's criticism. (9) Because of its framing, the relevant scholarship came to be known as the \"Hart-Dworkin debate,\" though of course it was in fact a debate between Dworkin and his numerous critics, since Hart did not reply to Dworkin at that time. Following the early pair of articles that sparked the debate, Dworkin embarked on","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"130 1","pages":"2082-2095"},"PeriodicalIF":3.4,"publicationDate":"2017-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2972256","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41633276","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":"Antitrust Law--Hospital Mergers--Third Circuit Clarifies Geographic Market Definition and Raises Bar for Efficiencies Defense.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"130 6","pages":"1736-43"},"PeriodicalIF":3.4,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34929234","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}