Harvard Law Review最新文献

{"title":"Foreword: Constitutions and Capabilities: \"Perception\" against Lofty Formalism","authors":"M. Nussbaum","doi":"10.4324/9781315251240-7","DOIUrl":"https://doi.org/10.4324/9781315251240-7","url":null,"abstract":"What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved? What about their environment--material, social, and political? Has it helped them to develop their capacities to be active in important areas of life? If people are like Pindar's vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task? More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people's abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution's promises more like hollow verbal gestures? The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought--less because intellectuals have favored it than because it has great resonance in the lives of real people. Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens' basic entitlements. Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obviously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life. Sometimes, however, imprisonment is only partial. It does not extend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life--as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech. Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not--as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor. Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employment opportunities. Sometimes, imprisonment is subtle, almost hidden: the words in a nation's constitution may be prom","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"121 1","pages":"4"},"PeriodicalIF":3.4,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70640642","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":"GOVERNING HEALTH.","authors":"Jennifer Prah Ruger","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"121 ","pages":"43-56"},"PeriodicalIF":3.4,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4186715/pdf/nihms586839.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32732140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medical self-defense, prohibited experimental therapies, and payment for organs.","authors":"Eugene Volokh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 7","pages":"1813-46"},"PeriodicalIF":3.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26758145","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 living Constitution","authors":"B. Ackerman","doi":"10.4324/9781315702094-11","DOIUrl":"https://doi.org/10.4324/9781315702094-11","url":null,"abstract":"I. LECTURE ONE: ARE WE A NATION? The telephone rang, and a familiar conversation began: since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know on countries I barely understood. But once again, I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was going to be completely different. The State Department wasn't asking me to help write a constitution in a language I couldn't read. It was inviting me to engage in a one-on-one tutorial with the great Akhil Alfarabi, a master of both the European and Islamic legal traditions, who was eager to extend his understanding to American constitutional law. Nothing but mutual enlightenment, the cheery voice guaranteed: it was past time to bridge the fearsome cavern separating the great legal systems of the world. And they were asking only for a week of my time. Why not? I asked, and I soon found myself, jetlagged, encountering a smiling Alfarabi at an undisclosed location. After drinking endless cups of tea, we began serious conversation where I always begin: with the written Constitution, starting from the words \"We the People\" and working our way to the end of the text. Alfarabi fulfilled my fondest expectations. He was a master of the art of elaborating profound legal principles out of lapidary texts and listened intently as I presented the famous words left behind by the American Founding and Reconstruction. A couple of days of joyful conversation passed, and we finally moved into our final lap: the texts of the twentieth century. But Alfarabi was getting impatient, and a bit resentful, at my treating him like a brilliant first-year student. \"How about changing roles,\" he suggested, \"and letting me take the lead in interpreting the last few constitutional amendments?\" Truth to tell, I was a bit doubtful: for all his learning, he didn't have the foggiest idea of American history. But after all, I didn't have any idea of his country's history, and that hadn't stopped us from engaging in some great conversation. \"Why not?\" I asked myself, glimpsing the ghost of John Dewey (1) enthusiastically nodding his approval: \"We have reached the Twenty-First Amendment. What do you think it means?\" \"Well, the year is 1933, and Franklin Roosevelt is coming into office--he's the one who announced the New Deal, no?\" I nodded enthusiastically, as is my habit, and was greatly relieved to learn that the guy knew more about my country's history than I knew of his. \"And looking at the amendment,\" said Akhil, \"I can see precisely why they call it the New Deal. I find it deeply regrettable that the American people repealed the ban on the consumption ","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 1","pages":"1737-1812"},"PeriodicalIF":3.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70435137","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":"A new test for evaluating Eighth Amendment challenges to lethal injections.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>An explosion of Eighth Amendment challenges to lethal injection protocols has struck the federal courts. The Supreme Court's recent decision in Hill v. McDonough,1 which empowered prisoners to bring challenges to lethal injection procedures under 42 U.S.C. para. 1983, has facilitated a flood of new lethal injection cases. In response, several courts have ordered states to alter their protocols, spurring other capital inmates to litigate such challenges. Distressingly, the courts evaluating these claims have almost no law to guide them. The last Supreme Court decision applying the Eighth Amendment to a method of execution was written in 1947; that case, Louisiana ex rel. Francis v. Resweber,2 occurred before the Eighth Amendment was applied to the states and resulted in a 4-1-4 split. Although lower courts have heard numerous challenges to execution methods, few have analyzed the constitutional validity of a method of execution in detail. Making matters worse, courts that find Eighth Amendment violations must craft equitable remedies that often amount to entirely new execution protocols. No clear precedent exists to guide courts in formulating such remedies. This Note proposes a legal standard for the administration of Eighth Amendment method-of-execution claims, focusing on lethal injection cases. Part I describes lethal injection procedures and summarizes recent litigation. Part II discusses the difficulty of evaluating lethal injection claims, analyzing both general difficulties in interpreting the Eighth Amendment and specific difficulties associated with lethal injection cases. Part III proposes a standard for addressing method-of-execution claims that attempts to balance a prisoner's interest in a painless execution with a state's interest in conducting executions efficiently. Part IV discusses remedies for unconstitutional procedures. Part V concludes.</p>","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 5","pages":"1301-23"},"PeriodicalIF":3.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26645162","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":"Reforming the food safety system: what if consolidation isn't enough?","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 5","pages":"1345-66"},"PeriodicalIF":3.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26645165","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":"Statutory Pragmatism and Constitutional Structure","authors":"J. Manning","doi":"10.2139/SSRN.2849589","DOIUrl":"https://doi.org/10.2139/SSRN.2849589","url":null,"abstract":"This essay examines two jurisprudential styles in Judge Posner’s statutory interpretation opinions. Both approaches invite judicial flexibility. The first, which reflects an earlier stage in Judge Posner’s career, justifies interpretive flexibility by defending a process of “imaginative reconstruction.” On that view, because a busy and error-prone Congress will not always capture its purposes in the words it chooses, the court should try to figure out what Congress would have wanted to accomplish in the circumstances before the court. The second, and more recent, framework is more openly pragmatic. On that view, Judge Posner justifies interpretive flexibility on the ground that judges properly “enrich positive law with the moral values and practical concerns of civilized society.” To simplify, the first approach treats interpretive flexibility as a better way of decoding Congress’s instructions; the second treats it as a proper exercise of judicial power. While reiterating a preference for textualism, the essay argues that, between the two approaches outlined by Judge Posner, his newer, more pragmatic justification gives a more accurate account of what is truly going on in the courts and is more sensitive to the underlying institutional considerations that necessarily inform rules of interpretation.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 1","pages":"1161-1174"},"PeriodicalIF":3.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387586","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":"In Memoriam: Clark Byse","authors":"S. Breyer, E. Kagan, A. Kaufman, Todd D. Rakoff, P. Strauss, Richard K. Willard","doi":"10.7916/D8R78F7T","DOIUrl":"https://doi.org/10.7916/D8R78F7T","url":null,"abstract":"Clark Byse was a member of that great generation of scholars that created administrative law. He worked with Walter Gellhorn, Louis Jaffe, Kenneth Culp Davis, Nat Nathanson, and a handful of others. They began with a few traditional common law rules, a new federal statute, a group of New Deal agencies, and a growing number of judicial decisions. They formed these materials into more coherent legal principles, approaches, and systems of interpretation. They helped to define the proper relationship between citizen and government in a world that must rely upon administrative expertise to translate the electorate’s desires into effective policy and action. In a word, Clark and those few others were the intellectual architects of the modern democratic administrative state. Clark Byse as scholar participated fully in that great enterprise. His casebook with Walter Gellhorn, now in its tenth edition, is a legal classic.1 He did not limit his writing to administrative law, however, for he also wrote much of value about, for example, contracts, civil procedure, and academic freedom. Clark Byse as teacher taught administrative law and contract law to generations of law students. His object was to transmit what we call “legal thinking” — the disciplined, critical, purpose-oriented approach that underlies American law. Indeed, Clark made a point of telling his students, “[N]ever forget that the emphasis in this class is on what and how you think, not on what some judge or treatise writer or","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"121 1","pages":"453-468"},"PeriodicalIF":3.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368176","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":"Precontractual liability and preliminary agreements","authors":"Alan L. Schwartz, R. Scott","doi":"10.7916/D8T440MF","DOIUrl":"https://doi.org/10.7916/D8T440MF","url":null,"abstract":"For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a \"preliminary agreement.\" A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty attaches and what the duty entails. Professors Schwartz and Scott develop a model showing that parties create preliminary agreements rather than complete contracts when their project can take a number of forms and the parties are unsure which form will maximize profits. A preliminary agreement allocates investment tasks between the parties, specifies investment timing, and commits the parties only to pursue a profitable project. Parties sink costs in the project because investment accelerates the realization of returns and illuminates whether any of the possible project types would be profitable to pursue. A party to a preliminary agreement \"breaches\" when it delays its investment beyond the time the agreement specifies. Delay will save costs for this party if no project turns out to be profitable and will improve this party's bargaining power in any negotiation to a complete contract. Delay often disadvantages the promisee, and when parties anticipate such strategic behavior, they are less likely to make preliminary agreements. This disincentive is unfortunate because a preliminary agreement often is a necessary condition to the realization of a socially efficient opportunity. Thus, contract law should encourage relation-specific investments in preliminary agreements by awarding the promisee his verifiable reliance if the promisor has strategically delayed investment. Professors Schwartz and Scott study a large sample of appellate cases showing that: (1) parties appear to make the preliminary agreements described in the model and breach for the reasons the model identifies, and (2) courts sometimes protect the promisee's reliance interest when they should, but the courts' imperfect understanding of the parties' behavior sometimes leads them to err. I. INTRODUCTION For at least fifty years, a particular pattern of commercial behavior has engendered considerable litigation and substantial scholarly commentary. Two commercial parties agree to attempt a transaction and agree also on the nature of their respective contributions, but neither the transaction nor what the parties are to do is precisely described, and neither may be written down. The parties do not agree and, indeed, may never have attempted to agree on important terms such as the price. After the parties a","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"120 1","pages":"661-707"},"PeriodicalIF":3.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71367775","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":"Not-so-Ordinary Judges in Ordinary Courts: Teaching Jordan vs. Duff & Phelps","authors":"J. Ramseyer","doi":"10.2139/SSRN.927862","DOIUrl":"https://doi.org/10.2139/SSRN.927862","url":null,"abstract":"By juxtaposing at-will employment with corporate fiduciary duties, Jordan v. Duff & Phelps creates something of a classroom brain-twister. Yet the exchange between Frank Easterbrook (writing for the majority) and Richard Posner (dissenting) also illustrates two fundamental but seldom recognized principles of real-world courts. First, the bench is properly a place for honest jurists of moderate talent (ideally, monitored for their work). It is not a place for men and women with the independence and sophistication of Posner and Easterbrook. Such judges can muddy the law by trying to fix bad precedent, and worsen the law by setting interventionist examples for their far less talented peers. Second, by basic second-best principles, the right legal rule for a substantial fraction of contractual disputes is not a rule designed to facilitate efficient deals. It is a rule that dismisses a plaintiff's claim forthright. We live in a world with imperfect judges, costly and dishonest attorneys, and only moderately intelligent juries. As Posner implicitly recognizes in Jordan (but other judges rarely do), many cases are simply beyond the capacity of such real-world courts to handle cost-effectively.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"236 1","pages":"1199-1209"},"PeriodicalIF":3.4,"publicationDate":"2006-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67888843","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}