Stanford Law Review最新文献

{"title":"Redefining race: can genetic testing provide biological proof of Indian ethnicity?","authors":"Eric Beckenhauer","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"161-90"},"PeriodicalIF":4.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24083555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Liability Rules for Constitutional Rights: The Case of Mass Detentions","authors":"E. Kontorovich","doi":"10.2139/SSRN.451582","DOIUrl":"https://doi.org/10.2139/SSRN.451582","url":null,"abstract":"Constitutional law assumes that rights should always be protected by property rules - that is, the government can only take them with the individual's consent. This Article extends to constitutional law the insights of Calabresi and Melamed's famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive. This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law's insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law. Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well as deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"755-833"},"PeriodicalIF":4.9,"publicationDate":"2003-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An introduction to legal thought: four approaches to law and to the allocation of body parts.","authors":"Guido Calabresi","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 6","pages":"2113-51"},"PeriodicalIF":4.9,"publicationDate":"2003-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22522602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Developing a Taste for Not Being Discriminated Against","authors":"M. Case","doi":"10.2139/SSRN.410262","DOIUrl":"https://doi.org/10.2139/SSRN.410262","url":null,"abstract":"Using as a jumping-off-point Ian Ayres's Pervasive Prejudice and the new Critical Race Theory reader, Crossroads, this review essay urges that more systematic data gathering, testing, surveying, analysis and theorizing should be done from the perspective of the victims of discrimination in the retail markets with an eye toward developing a taxonomy of the taste for fairness as rich and detailed as the long established taxonomy of a taste for discrimination and using this taxonomy to develop more effective transitional remedies for discrimination.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"2273-2291"},"PeriodicalIF":4.9,"publicationDate":"2003-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68694829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty","authors":"J. Resnik, Julie C. Suk","doi":"10.2139/SSRN.394660","DOIUrl":"https://doi.org/10.2139/SSRN.394660","url":null,"abstract":"The term sovereignty in the United States has more than one reference. Sometimes, sovereignty refers to the literal and the legal power of the United States in its relationship to other nations and to the world community. We call this \"external sovereignty\" and contrast it with a second use, which we describe as \"internal sovereignty\" to capture its focus on the relationships among state, federal, and tribal governments within the borders of the United States. The current majority of the United States Supreme Court has revived the language of internal sovereignty - proffering it as the basis for invalidating or limiting the scope of federal legislation as applied to states. The Court's internal sovereignty argument is supported in part by characterizing states as bearers of dignitary interests. Neither conceptions of sovereignty nor of dignity have been static over the centuries. While monarchs once held all sovereignty and only nobility had dignity, democracies today celebrate the sovereignty of their citizens and the dignity of all persons. Today, equality of persons is central to concepts of popular sovereignty and personal dignity, and human rights law embodies these premises. Further, during the last several decades, collectives of marginalized persons have also asserted rights to recognition and to self-determination of their political authority. The rise of both individual and collective claims of human dignity has constrained sovereignty, for nations can no longer treat human beings with utter disregard by asserting sovereignty as a defense. Given this nexus between dignity and personhood, the United States Supreme Court's insistence on attributing dignity to states is seen by some as either obnoxious or disingenuous. But the turn to dignity in sovereignty discussions ought neither to be dismissed nor embraced without puzzling about the work that it, circa 2003, is doing. In this article, we explore the role that the term \"dignity\" plays in United States constitutional law by learning when, where, and why the word has been used. That excavation in turn yields several normative insights. First, although concepts of dignity can be identified in constitutional jurisprudence throughout the nation's history, the word dignity was not used in reference to personal constitutional rights by the Supreme Court until the 1940s, in the wake of World War II. During that period, legal and political commentary around the world turned to the term dignity to identify rights of personhood. Thus, dignity talk in the law of the United States is an example of the influence of the norms of other nations, transnational experiences, and international legal treaties and documents on the law of the United States. Second, we argue that the Supreme Court's reinvigoration of doctrines of internal sovereignty by endowing states with dignity is driven in part by anxiety occasioned by the very permeability of our legal system. Third, both the influences on United States ","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1921-1962"},"PeriodicalIF":4.9,"publicationDate":"2003-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68669589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward an Institutional Theory of Sovereignty","authors":"Derek P. Jinks, Ryan Goodman","doi":"10.2139/SSRN.391961","DOIUrl":"https://doi.org/10.2139/SSRN.391961","url":null,"abstract":"Scholarship in international law is preoccupied with the structural tension between state sovereignty and international obligation. This preoccupation presupposes that states incur sovereignty costs when entering binding international commitments. In our view, this presupposition requires substantial qualification. In this Article, we propose a sociological model of sovereignty that views states as organizational entities embedded in and reflecting a wider social environment. Such an approach, we maintain, illuminates the ways in which constraints empower actors (including states). Our claim is not simply that international law helps overcome collective action problems by facilitating cooperation and coordination. Rather, we maintain that the constitutive features of the contemporary nation-state - including its status as a legitimate, sovereign actor - derive from worldwide models constructed and propagated through global cultural and associational processes. In issue areas ranging from public education to environmental protection to the laws of war, these models: define and legitimate purposes of state action; and shape the organizational structure and policy choices of states. These processes (1) define the organizational form of the modern state; (2) delimit the legitimate purposes of the state; and (3) constitute states as the principal legitimate actors in the world polity. The institutionalization of world models also helps explain many characteristics of the contemporary state system, such as striking similarity in purposes and organizational structure despite diversity in local resources and cultural traditions, and structural decoupling between functional task demands and persistent state initiatives. We suggest that the insights generated by this approach recast debates about the utility and prospects of reconciling state sovereignty and international law.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1749-1788"},"PeriodicalIF":4.9,"publicationDate":"2003-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68665896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The International Criminal Court and the Political Economy of Antitreaty Discourse","authors":"Mariano-Florentino Cuéllar","doi":"10.2139/SSRN.387340","DOIUrl":"https://doi.org/10.2139/SSRN.387340","url":null,"abstract":"This article examines U.S. opposition to the International Criminal Court (ICC) as a case study in how domestic and international politics shape discourse against new treaty-based legal obligations. When it comes to the ICC, official U.S. government discourse repeatedly alleges process-oriented shortcomings, particularly procedural due process problems and risks of prosecutorial abuse. This tendency to emphasize process-oriented arguments is borne out in a sample of public documents with dates between February 2001 and February 2003, where U.S. government officials made statements opposing U.S. participation in the ICC. Procedural due process and prosecutorial abuse claims account for about 80% of the lead arguments (that is, arguments developed in the most detail), and about 62% of the total arguments in the sample.Just as process arguments about domestic criminal law sometimes masquerade for positions about substantive law, the process arguments against the ICC appear to under-explain the vehemence of U.S. rejection of the court. The ICC's procedural protections for defendants tend to be comparable to those in the U.S., and it is not obvious that the court's prosecutor will be free from at least some legal, political, and economic forces that also impact U.S. prosecutors. Conversely, even if the court copiously observed procedural safeguards and the prosecutor only proceeded with the utmost fidelity to the substantive law, the underlying international law the court would enforce would still interfere with unfettered military discretion likely to be valued by a number of U.S. domestic constituencies.Despite their legalistic pedigree, the process-focused arguments and the underlying rejection of the court by the U.S. government appear to reflect the impact of international and domestic politics. A focus on procedure sounds marginally more principled to international audiences than a brute realist assertion that American interests are best served by keeping unfettered control of military decisions. The process arguments and rejection of the ICC exemplify the sort of discourse that can appeal to members of the public forming opinions about foreign policy that in turn shape more general evaluations of the government. Yet this comes with costs: It elides debate over the value of the brute realist position that American military power should be subject to few meaningful constraints, and instead makes it look like the most important question is about the procedural shortcomings of a court that is precisely meant to address the arbitrariness in international criminal justice that critics use to assail it.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1597-1632"},"PeriodicalIF":4.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68661725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Delegations, the Structural Constitution, and Non-Self-Execution","authors":"C. Bradley","doi":"10.2139/SSRN.369020","DOIUrl":"https://doi.org/10.2139/SSRN.369020","url":null,"abstract":"This Article considers the constitutional implications of U.S. delegations of authority to international institutions. Since World War II, there has been a vast growth in the number and importance of international institutions. Although some of these institutions are merely forums for discussion and negotiation, many of them exercise judicial, legislative, regulatory, investigative, or prosecutorial authority. Despite its isolationist reputation, and despite recently announcing that it would not become a party to the International Criminal Court, the United States has committed itself to many of these institutions. By virtue of these commitments, the United States has consented to have international institutions make certain decisions, and take certain actions, that can affect the United States' rights and duties under international law and, in some instances, the enforceability of U.S. domestic law. Although the number and extent of future U.S. commitments will likely vary depending on the presidential administration, the general trend internationally - as illustrated most dramatically by developments the European Union - is towards vesting ever-increasing authority in international institutions. Without prejudging their validity, transfers of authority by the United States to international institutions could be said to raise \"delegation concerns.\" These concerns relate to democratic accountability, shifts in the balance of power between the federal branches, and erosion of the U.S. system of federalism. By transferring legal authority from U.S. actors to international actors - actors that are physically and culturally more distant from, and not directly responsible to, the U.S. electorate - these delegations may entail a dilution of domestic political accountability. This accountability concern may be heightened by the lack of transparency associated with some international decisionmaking, which in turn may increase monitoring costs and, relatedly, the potential for what economists call \"rent-seeking.\" In addition, transfers of authority to international institutions may enhance the power of one branch of the federal government relative to the others. Specifically, these transfers may enhance the relative power of the Executive Branch, both because they often delegate the powers of other branches, and because the United States is represented in these institutions by Executive Branch agents. Finally, delegations of authority to international institutions - as with the expansion of international law more generally - have the potential to erode U.S. federalism by enhancing the power of the entire federal government vis-a-vis the states. Even if these effects seem relatively modest with respect to particular delegations, the cumulative effect may be more problematic. Although these delegation concerns are not entirely new, they have become much more pronounced in recent years. In the domestic context, similar concerns about accountability and aggra","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1557-1596"},"PeriodicalIF":4.9,"publicationDate":"2003-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68624303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Honesty and Opacity in Charge Bargains","authors":"R. Wright, M. Miller","doi":"10.2139/SSRN.384860","DOIUrl":"https://doi.org/10.2139/SSRN.384860","url":null,"abstract":"In \"Screening versus Plea Bargaining: Exactly What Are We Trading Off?,\" (forthcoming, Stanford Law Review) Judge Gerard Lynch critiques \"The Screening/Bargaining Tradeoff,\" 55 Stan. L. Rev. 29 (2002), by suggesting that plea bargaining may have virtues for prosecutors and for the entire system, and that aggressive prosecutorial screening unduly diminishes the role of defense counsel, at least in the system we have described. In his view, most plea negotiations \"are primarily discussions of the merits of the case, in which defense attorneys point out legal, evidentiary or practical weaknesses of the prosecutor's case, or mitigating circumstances of the offender meriting mercy, and argue based on these considerations that the defendant is entitled to a more lenient disposition than that originally proposed by the prosecutor's charge.\" In this response, we part ways with Judge Lynch on both the virtues of charge bargaining and the power of defense counsel to add value during those negotiations. Based on our study of case screening practices in New Orleans, we believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem. Further, we believe that Lynch's image of defense participation is impossible to align with the experience in most state and local jurisdictions, including New Orleans. It matters a great deal which administrative system of criminal justice one chooses. Prosecutors have every reason to want a system that depends on negotiations for reduced charges. Such a system leaves prosecutors with overwhelming authority and discretion, and gives the public little opportunity to monitor the quality of the end product. When a prosecutor chooses to adopt a system that limits his discretion and that allows greater public scrutiny of his decisionmaking, as the New Orleans District Attorney has done, this is a reason to cheer.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1409-1417"},"PeriodicalIF":4.9,"publicationDate":"2003-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68659015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Confirming More Guns, Less Crime","authors":"J. Lott, Florenz Plassmann, J. Whitley","doi":"10.2139/SSRN.372361","DOIUrl":"https://doi.org/10.2139/SSRN.372361","url":null,"abstract":"Analyzing county level data for the entire United States from 1977 to 2000, we find annual reductions in murder rates between 1.5 and 2.3 percent for each additional year that a right-to-carry law is in effect. For the first five years that such a law is in effect, the total benefit from reduced crimes usually ranges between about $2 billion and $3 billion per year. Ayres and Donohue have simply misread their own results. Their own most generalized specification that breaks down the impact of the law on a year-by-year basis shows large crime reducing benefits. Virtually none of their claims that their county level hybrid model implies initial significant increases in crime are correct. Overall, the vast majority of their estimates based on data up to 1997 actually demonstrate that right-to-carry laws produce substantial crime reducing benefits. We show that their models also do an extremely poor job of predicting the changes in crime rates after 1997.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"1313-1370"},"PeriodicalIF":4.9,"publicationDate":"2002-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68630748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}