Harvard Law Review最新文献_第9页

Article I Tribunals, Article Iii Courts, and the Judicial Power of the United States 第一条法庭，第三条法院和美国的司法权

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-04-21 DOI: 10.2307/4093393

James E. Pfander

{"title":"Article I Tribunals, Article Iii Courts, and the Judicial Power of the United States","authors":"James E. Pfander","doi":"10.2307/4093393","DOIUrl":"https://doi.org/10.2307/4093393","url":null,"abstract":"We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I tribunals altogether; the provision vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I tribunals - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional courts as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law. This Article develops a new \"inferior tribunals\" account of the interplay between Article I and Article III. Building on the constitutional distinction between \"inferior tribunals\" (in Article I) and \"inferior courts\" (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (which were understood to differ importantly from the nationally uniform rules of law that Article III courts were expected to enforce). The Article further suggests that the constitutionality of Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferior","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"118 1","pages":"643-777"},"PeriodicalIF":3.4,"publicationDate":"2004-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093393","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732067","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: 11

Lawrence V. Texas: The "Fundamental Right" That Dare Not Speak Its Name 劳伦斯诉德克萨斯州:不敢说出自己名字的“基本权利”

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-04-01 DOI: 10.2307/4093306

L. Tribe

引用次数: 48

The Role of the Local in the Doctrine and Discourse of Religious Liberty 地方在宗教自由学说和话语中的作用

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-04-01 DOI: 10.2139/SSRN.477221

Richard C. Schragger

{"title":"The Role of the Local in the Doctrine and Discourse of Religious Liberty","authors":"Richard C. Schragger","doi":"10.2139/SSRN.477221","DOIUrl":"https://doi.org/10.2139/SSRN.477221","url":null,"abstract":"Much of the Supreme Court's modern religion clause doctrine has been forged in conflicts that directly implicate the traditional powers of local governments: primary and secondary education, land use, police powers. Constitutional theorists have rarely treated this jurisdictional fact as significant because the post-incorporation Court has never made a distinction among levels of government - local, state, or federal - when considering Establishment or Free Exercise Clause challenges. This Article argues that courts and commentators should make such a distinction. More specifically, it argues that local regulations that burden or benefit religious belief, conduct, or exercise have different institutional effects than do similar state or national regulations, and that these differential effects should be taken into account when determining the contours of the Establishment and Free Exercise Clauses. The usual parochialism story is that local political institutions are often hostile to religious minorities and therefore particularly in need of central oversight - judicial or otherwise. I argue against this conventional wisdom. I contend that local government - and more generally the decentralization of power - is a robust structural component of religious liberty. On this account, the chief threat to religious liberty is the exercise of centralized power generally, either to benefit religion as a class or to burden it. The Court's religion clause jurisprudence should therefore be more skeptical of federal statues and regulations that touch on religion than similar local statutes and regulations. On this argument local governments are appropriate sites - not the only sites, certainly, but central and overlooked sites - for the negotiation of church-state relations.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"1810"},"PeriodicalIF":3.4,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744952","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: 12

Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa 合理的愤怒:美国和南非的种族和宪法反歧视法

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093257

Frank I. Michelman

引用次数: 3

From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar 从“隔离本质上是不平等的”到“多元化对企业有利”:基于市场的多元化论点的兴起和黑人公司律师的命运

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093260

D. Wilkins

{"title":"From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar","authors":"D. Wilkins","doi":"10.2307/4093260","DOIUrl":"https://doi.org/10.2307/4093260","url":null,"abstract":"Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers. This paper is part of a symposium on the fiftieth anniversary of Brown v Board of Education held at Harvard Law School on April 15, 2004 in which Richard Ford, Molly McUsic, Frank Michelman, Juan Perea, and Reva Siegel also contributed articles. The Symposium papers were published in Volume 117, Number 5 (March 2004) of the Harvard","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"31 1","pages":"1548"},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093260","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730787","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: 46

Buscando America: Why Integration and Equal Protection Fail to Protect Latinos Buscando America:为什么融合和平等保护不能保护拉丁裔

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093258

J. Perea

引用次数: 16

Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown 平等谈话:布朗案宪法斗争中的反从属与反分类价值

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093259

Reva B. Siegel

{"title":"Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown","authors":"Reva B. Siegel","doi":"10.2307/4093259","DOIUrl":"https://doi.org/10.2307/4093259","url":null,"abstract":"When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decision's meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshall's arguments in Brown, the legacy of Mar-","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"1470"},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093259","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730566","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: 77

The Future of Brown v. Board of Education: Economic Integration of the Public Schools 布朗诉教育委员会案的未来:公立学校的经济一体化

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093256

Molly S. McUsic

引用次数: 12

Brown's Ghost 布朗的鬼

IF 3.4 2区社会学

Harvard Law Review Pub Date : 2004-03-01 DOI: 10.2307/4093255

R. Ford

引用次数: 8

The Theorists' Constitution: And Ours 理论家的宪法:和我们的宪法