Columbia Law Review最新文献_第3页

A treatise on the specific performance of contracts 契约论:关于契约具体履行的论文

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2009-10-21 DOI: 10.2307/1112913

J. Pomeroy, J. Mann

引用次数: 0

Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication 宪法转折点:公民权利、社会变革和基于事实的裁决

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2008-03-05 DOI: 10.7916/D8WD4033

Suzanne B. Goldberg

{"title":"Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication","authors":"Suzanne B. Goldberg","doi":"10.7916/D8WD4033","DOIUrl":"https://doi.org/10.7916/D8WD4033","url":null,"abstract":"This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts \"tip\" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the \"facts\" about a social group, an approach that she terms \"fact-based adjudication.\" Professor Goldberg critiques this approach for its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms. The Article also observes that because fact-based adjudication enables courts to leave norms unacknowledged, it does serve the judiciary's institutional interests by maximizing flexibility for future decisionmaking regarding restrictions on group members' rights. At the same time, however, this approach facilitates inconsistency in theory and outcome by enabling courts to variously embrace and reject traditional rationales for restricting social groups without having to justify the inconsistent treatment of group-related norms. As a possible remedy for these flaws, the Article considers the costs and benefits of greater judicial candor regarding the normative underpinning of decisions. Although Professor Goldberg ultimately advocates only a limited modification to the current fact-based adjudication regime, she concludes that our theories of judicial review will improve, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable judicial involvement in making normative judgments about social groups.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2008-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368543","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: 10

Safe-Conduct Theory of the Alien Tort Statute, The 外国人侵权法的安全行为理论

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2007-02-22 DOI: 10.2139/SSRN.687799

Thomas H. Lee

引用次数: 11

What Divides Textualists from Purposivists 是什么区分了文本主义者和目的主义者

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2006-01-01 DOI: 10.2139/SSRN.2849247

J. Manning

{"title":"What Divides Textualists from Purposivists","authors":"J. Manning","doi":"10.2139/SSRN.2849247","DOIUrl":"https://doi.org/10.2139/SSRN.2849247","url":null,"abstract":"Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists traditionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body's purpose.Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textualists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain textual meaning. Sophisticated purposivists, moreover, have posited their own \"reasonable person\" framework to make purposive interpretation more objective. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than policy context (evidence about the way a reasonable person solves problems). Professor Manning contends that the textualist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In contrast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpassingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2849247","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68386954","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: 30

Watchdog or Demagogue? The Media in the Chinese Legal System 看门狗还是煽动者?中国法制中的媒体

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2005-01-01 DOI: 10.7916/D8J67GK4

B. Liebman

引用次数: 146

Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation 重新思考第一条第一节:从非授权到独家授权

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2004-12-01 DOI: 10.2307/4099357

T. Merrill

引用次数: 29

THE SUPREME COURT OF THE UNITED STATES AS QUASI-INTERNATIONAL TRIBUNAL: RECLAIMING THE COURT'S ORIGINAL AND EXCLUSIVE JURISDICTION OVER TREATY-BASED SUITS BY FOREIGN STATES AGAINST STATES 作为准国际法庭的美国最高法院:恢复法院对外国针对其他国家的基于条约的诉讼的原始和专属管辖权

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2004-11-01 DOI: 10.2307/4099335

Thomas H. Lee

{"title":"THE SUPREME COURT OF THE UNITED STATES AS QUASI-INTERNATIONAL TRIBUNAL: RECLAIMING THE COURT'S ORIGINAL AND EXCLUSIVE JURISDICTION OVER TREATY-BASED SUITS BY FOREIGN STATES AGAINST STATES","authors":"Thomas H. Lee","doi":"10.2307/4099335","DOIUrl":"https://doi.org/10.2307/4099335","url":null,"abstract":"In this Article, Professor Lee argues that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violations of treaties of the United States. The basis for nonimmunity is a peacekeeping theory of ratification consent: Just as, by ratifying the Constitution, the States agreed to suits by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in the supreme national tribunal for the sake of international peace. The Founders of the new Republic viewed state breach of the 1783 Treaty of Peace as the leading potential cause for a shooting or trade war. The Article’s thesis is supported by the text of Article III as amended by the Eleventh Amendment and by evidence of original intent, including the inaugural implementation of the Original Jurisdiction Clause by the Judiciary Act of 1789. Nor is it inconsistent with the principle of sovereign dignity for the semisovereign States to be sued by fully sovereign foreign states in the Supreme Court. Justices of the Court throughout the nineteenth and the first quarter of the twentieth centuries acknowledged this aspect of the Court’s original jurisdiction, but awareness was lost by the time of the 1934 decision in Principality of Monaco v. Mississippi when the Republic had become a world power. Reclaiming the Court’s lost jurisdiction today requires a narrowing of that decision, but makes sense given the resurgence of American federalism and the pace of globalization.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099335","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68754907","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

THE NEW MORALIZERS: TRANSFORMING THE CONSERVATIVE LEGAL AGENDA 新的道德家:改变保守的法律议程

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2004-11-01 DOI: 10.2307/4099339

David A. Super

{"title":"THE NEW MORALIZERS: TRANSFORMING THE CONSERVATIVE LEGAL AGENDA","authors":"David A. Super","doi":"10.2307/4099339","DOIUrl":"https://doi.org/10.2307/4099339","url":null,"abstract":"The essential elements of a wide range of social policies can be described in terms of responses to three basic questions. First, what burdens must the innocent carry? Second, what burdens must the blameworthy bear? And third, how does society assess blame? This Essay examines the increasingly successful efforts of a faction of social conservatives, called here the new moralizers, to reshape the resolution of each of these three issues and with them a wide range of social policies. Although the relative importance of these three questions has varied over time, the twentieth century saw a movement away from costly individualized adjudications of fault and toward efficiency as a guiding principle of lawmaking. Over the past decade, the new moralizers have sought to reverse this trend selectively, transforming law and social policy to increase reliance on individual assessments of virtue in place of rules of broad application. The new moralizers have imposed a range of per se rules that stigmatize and restrict unpopular groups without individualized findings of fault, while requiring individualized determinations of blameworthiness before restricting members of elites. Most remarkably, they have sought to create conditions in which providing less protection to the concededly innocent appears a moral imperative. The new moralizers' implicit assumptions about human nature are strikingly inconsistent with those of the law and economics movement, but they have received inadvertent aid from liberals. This Essay concludes that technical arguments cannot meet this agenda's considerable populist appeal. Its excesses, however, can be exposed and contained.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099339","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755049","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: 7

Embedded Options and the Case Against Compensation in Contract Law 嵌入期权与合同法中的赔偿案件

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2004-07-01 DOI: 10.7916/D8PR7VQ7

R. Scott, George G. Triantis

{"title":"Embedded Options and the Case Against Compensation in Contract Law","authors":"R. Scott, George G. Triantis","doi":"10.7916/D8PR7VQ7","DOIUrl":"https://doi.org/10.7916/D8PR7VQ7","url":null,"abstract":"Despite the fact that compensation is the governing principle in contract law remedies, it has tenuous historical, economic and empirical support. A promisor's right to breach and pay damages (which is subject to the compensation principle) is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded options. We explain why compensation is of little relevance to the option price agreed to by the parties, which is a function of the value of the option to the buyer, its cost to the seller and the market in which they transact. We thus propose a novel justification for why penalty liquidated damages may be higher than seller's costs: they are option prices that reflect the value of the options to the buyer. The regulation of liquidated damages is thus tantamount to price regulation, which is outside the realm of contract law. Moreover, in light of the heterogeneity among optimal option prices, we also make the case against having an expectation damages default rule to begin with. In thick markets, we argue for enforcing the parties ex ante risk allocation with market damages. In thin markets, we propose that parties be induced to agree explicitly with respect to all termination rights, including breach damages, by the threat of specific performance of their contemplated exchange or, in the case of consumers, by a default rule that provides them a termination option at no cost.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71367442","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: 37

The Domesticated Liberty of Lawrence v. Texas 劳伦斯诉德克萨斯州案中被驯化的自由

IF 2.9 2区社会学

Columbia Law Review Pub Date : 2004-05-02 DOI: 10.7916/D84X57SP

Katherine M. Franke

引用次数: 80