Harvard Law Review最新文献_第2页

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-12-06 DOI: 10.12987/9780300157970

G. Calabresi

引用次数: 491

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). 侵权法——石棉诉讼中的专家证言——南卡罗莱纳地区法院认为，即使法律结论在科学上是合理的，每次暴露理论也不足以证明具体的因果关系。——Haskins诉3m Co.， no . 2:15-cv-02086, 3:15-cv-02123, 2017 WL 3118017 (dsc, 2017年7月21日)。

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-12-01

引用次数: 0

Without the Pretense of Legislative Intent 没有立法意图的伪装

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-10-27 DOI: 10.2139/SSRN.3347325

J. Manning

引用次数: 6

Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past 前所未有的司法确认之争与寻找可利用的过去

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-07-21 DOI: 10.31228/osf.io/7wnqe

Josh Chafetz

{"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":null,"pages":null},"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}

引用次数: 2

The Debate That Never Was 从未有过的辩论

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-05-22 DOI: 10.2139/SSRN.2972256

N. Stavropoulos

{"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":null,"pages":null},"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}

引用次数: 4

Antitrust Law--Hospital Mergers--Third Circuit Clarifies Geographic Market Definition and Raises Bar for Efficiencies Defense. 反垄断法-医院合并-第三巡回法院澄清地域市场定义并提高效率辩护的门槛。

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-04-01

引用次数: 0

Preemption — ERISA Preemption — Sixth Circuit Holds That ERISA Does Not Preempt Michigan Medicaid Tax Law. 优先权- ERISA优先权-第六巡回法院认为ERISA不优先于密歇根医疗补助税法。

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2017-03-01

引用次数: 0

Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State 官僚主义与不信任:兰迪斯、贾菲和卡根论行政国家

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2016-11-02 DOI: 10.2139/SSRN.2863112

Adrian Vermeule

{"title":"Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2863112","DOIUrl":"https://doi.org/10.2139/SSRN.2863112","url":null,"abstract":"What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68398935","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

How Private Insurers Regulate Public Police 私营保险公司如何监管公共警察

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2016-02-15 DOI: 10.2139/SSRN.2733783

John Rappaport

{"title":"How Private Insurers Regulate Public Police","authors":"John Rappaport","doi":"10.2139/SSRN.2733783","DOIUrl":"https://doi.org/10.2139/SSRN.2733783","url":null,"abstract":"A string of deadly police-citizen encounters, made public on an unprecedented scale, has thrust American policing into the crucible of political conflict. New social movements have taken to the streets, while legislators have introduced a wide array of reform proposals. Optimism is elusive, though, as the police are notoriously difficult to change. One powerful policy lever, however, has been overlooked: police liability insurance. Based on primary sources new to legal literature and interviews with nearly thirty insurance industry representatives, civil rights litigators, municipal attorneys, and consultants, this Article shows how liability insurers are capable of effecting meaningful change within the agencies they insure — a majority of police agencies nationwide. The Article is the first to describe and assess the contemporary market for liability insurance in the policing context; in particular, the effects of insurance on police behavior. While not ignoring the familiar (and potentially serious) problem of moral hazard, the Article focuses on the ways in which insurers perform a traditionally governmental “regulatory” role as they work to manage risk. Insurers get police agencies to adopt or amend written departmental policies on subjects like the use of force and strip searches, to change the way they train their officers, and even to fire problem officers, from the beat up to the chief. One implication of these findings is that the state might regulate the police by regulating insurers. In this spirit, the Article considers several unconventional legal reforms that could reduce police misconduct, including a mandate that all municipalities purchase insurance coverage, a ban on “first-dollar” (no-deductible) policies that may reduce municipal care, and a requirement that small municipalities pool their risks and resources before buying insurance on the commercial market. At bottom, the Article establishes that liability insurance has profound significance to any comprehensive program of police reform. The Article also makes three important theoretical contributions to legal scholarship. First, it inverts the ordinary model of governance as public regulation of private action, observing that here, private insurers regulate public police. Second, it illustrates how insurers not only enforce the Constitution, but also construct its meaning. Among other things, in the hands of insurers, liability for constitutional violations and other police misconduct becomes “loss” to the police agency, which must be “controlled.” Perhaps surprisingly, by denaturing the law in this way and stripping it of its moral valence, insurers may actually advance the law’s aims. Finally, the Article helps to pry open the black box of deterrence. In fact, given widespread indemnification of both individual and entity liability for constitutional torts committed by police, an understanding of how insurers manage police risk is essential to any persuasive theory of civ","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2733783","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279607","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: 28

How Much Does Speech Matter 语言有多重要

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2016-01-01 DOI: 10.2139/SSRN.2724040

Leslie Kendrick

{"title":"How Much Does Speech Matter","authors":"Leslie Kendrick","doi":"10.2139/SSRN.2724040","DOIUrl":"https://doi.org/10.2139/SSRN.2724040","url":null,"abstract":"In Speech Matters (Princeton 2014), Seana Shiffrin explains why lying is wrong, why freedom of speech is right, and why those two views are compatible. This review lauds Shiffrin’s book for its creative and powerful coherence of vision. It lays its claims about both lying and free speech on the same foundation: on a view of sincere communication as a prerequisite for moral agency and moral progress. In this regard, Shiffrin’s book stands in sharp rebuke to the current trend, in the Supreme Court and elsewhere, of assuming that the freedom of speech must include a right to lie. Instead, Shiffrin argues, the reasons that we have freedom of speech are the same reasons that lying is rarely morally permissible. At the same time, the coherence of Shiffrin’s view also reveals a certain symmetry between Kantian accounts of lying and predominant views of free speech, one that not everyone will find salutary. In both, the importance of communication seems to override other interests, even other moral commitments. While Shiffrin articulates a compelling view of why free and authentic communication serves a distinct, indeed a singular, role in moral identity, the question remains whether that role requires quite so much protection, either against lying or in favor of free speech. Nevertheless, Shiffrin’s book puts forth an original and authoritative view on these questions, one that will challenge and instruct anyone interested in lying, free speech, or the communicative responsibilities we owe to ourselves and others.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274641","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: 0