University of Chicago Law Review最新文献

{"title":"Nondelegation: A Post-Mortem","authors":"E. Posner, Adrian Vermeule","doi":"10.2307/1600576","DOIUrl":"https://doi.org/10.2307/1600576","url":null,"abstract":"In an earlier article, Interring the Nondelegation Doctrine,' we advanced the following account of the constitutional law bearing on delegation of federal legislative power. A statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. The standard nondelegation doctrine, which holds that statutory grants of authority \"amount to\" or \"effect\" a delegation of legislative power if they are too broad or confer excessive discretion, is no more than a vague and ultimately uncashable metaphor. As it turns out, the standard nondelegation doctrine has no real pedigree in constitutional text and structure, in originalist understandings, or in judicial precedent; nor can plausible arguments from democratic theory or social welfare be marshaled to support it. Larry Alexander and Saikrishna Prakash have written a response that criticizes our account.2 (Although Alexander and Prakash criticize our view, they are noticeably ambivalent about the conventional doctrine.' As we shall see, their arguments commit them to defending a different, radically restrictive account of delegation, one in which any issuance of rules and regulations by the executive branch represents an unconstitutional exercise of legislative power.) Alexander and Prakash make three principal points. First, focusing on one implication of our account -that a delegation of legislative power would occur if federal legislators ceded their de jure legislative powers, such as voting rights, to nonlegislators-they say that our account \"elevates form over substance\" by permitting \"equivalent\" results to be produced","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"8 1","pages":"1331-1344"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84464311","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":"Elements of the Law","authors":"D. Hutchinson","doi":"10.2307/1600550","DOIUrl":"https://doi.org/10.2307/1600550","url":null,"abstract":"When Geof Stone, then Dean of the Law School, asked me ten years ago to teach a section of Elements of the Law, I was flattered and delighted -at least until a few days later when he asked me what I would try to do with the course. When I told him, his face seemed to fall slightly but he recovered quickly and said, \"That's not what Cass does.\" It testifies to Geof's polished charm that I wasn't sure whether I was being gently rebuked for insubordination or lightly complimented for ingenuity. In any event, I was stimulated to investigate what might be called the original intent of the course, which has been a fixture of the firstyear curriculum since 1937 and has been taught by a (baker's) dozen faculty members since its inception.! I discovered that the description of the course in the Law School catalog has changed very little but that the content and nominal objective have changed, sometimes radically, with each new instructor. The changes were the product not only of professorial idiosyncrasy but also of continuously shifting focus in theories both of teaching and of precedent in American law. As with so many dramatic changes at the University of Chicago in the 1930s, Elements of the Law began with a conversation prompted by Robert Maynard Hutchins, who left the deanship of Yale Law School to become President of the University in 1929 at the age of 30. Hutchins inherited a distinguished research university whose initial momentum from its founding at the turn of the century was beginning to flag.2 Nonetheless, many members of the faculty were","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"76 1","pages":"141-158"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83849499","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":"Website Libel and the Single Publication Rule","authors":"Sapna Kumar","doi":"10.2307/1600592","DOIUrl":"https://doi.org/10.2307/1600592","url":null,"abstract":"The single publication rule was created to compensate libel victims for reputational harm without crippling the publishing industry. During the nineteenth century, American courts followed the multiple publication rule.1 In 1849 an English court established this rule,2 which states that each delivery of a libelous statement to a third party constitutes a new publication of the libel, which in turn gives rise to a new cause of action.3 As mass publishing became more common during the twentieth century, courts faced a dilemma. The multiple publication rule was adopted when communities were small and circulation of printed materials was limited, thus inherently limiting the burden that publishers accused of libel could face. But with technological breakthroughs such as the modern printing press, a single libelous statement could now reach millions of readers and lead to a staggering number of lawsuits.5 Courts became concerned that the statute of limitations would no longer be effective if it were renewed every time a new party saw the libelous statement.6 A rule was needed that would give libel victims adequate means to seek redress without forcing publishers to face countless lawsuits for an indefinite span of time. Consequently, courts began to adopt the single publication rule. Under this rule, a libel victim would have only one cause of action for the mass or aggregate","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"72 1","pages":"639-662"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86155361","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 University of Chicago Law School: Ruminations and Reminiscences","authors":"B. D. Meltzer","doi":"10.2307/1600556","DOIUrl":"https://doi.org/10.2307/1600556","url":null,"abstract":"I have, I believe, been given the privilege of writing for this centennial issue primarily because of my well-aged and affectionate ties to the University of Chicago Law School. In 1934, I became a firstyear student there and thus began a connection spanning more than two-thirds of the Law School's existence. My connection as a faculty member began in 1946; and, if I may count my days as an emeritus (beginning in 1985), I have been on the faculty for more than one-half of the school's existence. Naturally, I have heard, repeated, and created a good deal of hearsay regarding the school, beginning with its founding. My memories of later events that I actually observed may, of course, have improved with age. Furthermore, they have undoubtedly been reshaped by hindsight. In any event, the core of much of what follows will be an old story to some of you. My working principle for birthday parties, and especially centennials, is nostalgia rather than novelty. Indeed, I am concerned that I may help validate Paul Freund's observation that nostalgia is not what it used to be. I will say something about three topics: (1) the birth pangs of the Law School, (2) my student days, and (3) the post-World War II reinvigoration of the Law School that reflected and reinforced its original conception of a broad-gauged legal education. My stopping point will, in general, be 1962, when Edward Levi left the deanship of the Law School in order to become Provost of the University.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"47 1","pages":"233-258"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73351502","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":"Tobacco Regulation or Litigation","authors":"E. Posner","doi":"10.2307/1600669","DOIUrl":"https://doi.org/10.2307/1600669","url":null,"abstract":"Cigarettes kill hundreds of thousands of people every year, yet until recently litigation against the tobacco industry constantly failed. In case after case judges and juries found that smokers understood the risks of smoking and thus could not hold the tobacco industry legally responsible for the consequences. When states brought suits claiming that the tobacco industry owed them reimbursement for Medicaid expenses attributable to care for tobacco-related illnesses, observers expected the suits to go nowhere. The state suits appeared to be parasitic on the individual tort suits that had failed, for the states would not appear to have a claim unless the tobacco industry wronged the smokers who benefited from Medicaid. Yet the tobacco industry agreed to a settlement worth hundreds of billions of dollars, and to curb advertising and marketing practices. This Master Settlement Agreement (MSA) is just one brick in the regulatory edifice that houses the smoking policy of the United States. The federal government imposes an excise tax on cigarettes; regulates warning labels, advertising, and product characteristics; and forbids sales to minors. The state governments have their own excise taxes on cigarettes; they also regulate advertising and sales practices in ways that go beyond the requirements of the MSA, and restrict smoking in workplaces, restaurants, and other public spaces. Municipalities impose yet another layer of regulation.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"33 1","pages":"1141-1157"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73806486","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":"Revised Sentencing Guidelines and the Ex Post Facto Clause","authors":"William P. Ferranti","doi":"10.2307/1600664","DOIUrl":"https://doi.org/10.2307/1600664","url":null,"abstract":"Federal judges must sentence convicted offenders according to guidelines promulgated and periodically revised by the United States Sentencing Commission (\"The Commission\").' By both statute and guideline, sentencing judges are required to apply the Guidelines Manual in effect at the time of sentencing.2 Citing the Ex Post Facto Clause,3 however, every circuit has rejected sentences produced by this rule where an applicable guideline was revised to the offender's detriment between the time the offense was committed and the time of sentencing.4 A more difficult situation arises when the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual becomes effective. The guidelines direct the courts to apply the revised Manual to both offenses.5 The circuit courts are split as to whether this violates the Ex Post Facto Clause.6 This Comment concludes that the provision requiring this result, ? 1B1.11(b)(3), is unconstitutional. The Ex Post Facto Clause provides simply, \"No ... ex post facto Law shall be passed.\"7 This prohibition is understood to extend to a special class of criminal laws -those that act retrospectively and to the disadvantage of the offender.8 \"Critical to relief under the Ex Post Facto Clause is ... the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.\"9 While notice ex ante is","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"15 1","pages":"1011-1036"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87228502","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 Self-Defeating International Criminal Court","authors":"J. Goldsmith","doi":"10.2307/1600547","DOIUrl":"https://doi.org/10.2307/1600547","url":null,"abstract":"Great expectations greeted the opening of the International Criminal Court (ICC) on July 1, 2002. Kofi Annan captured these expectations when he expressed the hope that the new ICC would \"deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.\"' Chris Patten, the European Union Commissioner for External Relations, echoed this theme when he stated that the new Court's purpose was to \"ensure that genocide and other such crimes against humanity should no longer go unpunished.\"2 Scores of other world officials, human rights activists, and international law experts made similar predictions. These are unrealistic dreams. They are unrealistic for many reasons. But perhaps the most salient reason is that the ICC as currently organized is, and will remain, unacceptable to the United States. This is important because the ICC depends on U.S. political, military, and economic support for its success. An ICC without U.S. support -and indeed, with probable U.S. opposition-will not only fail to live up to its expectations. It may well do actual harm by discouraging the United States from engaging in various human rights-protecting activities. And this, in turn, may increase rather than decrease the impunity of those who violate human rights. I lay out the mechanisms of ICC futility and perversity as follows. Part I shows why the ICC will be incapable of punishing serious human rights abusers. Part II shows how the ICC will likely lead to less rather than more punishment for human rights abusers. Part III asks why the ICC framers might have designed a self-defeating institution. The Conclusion qualifies the analysis and points to larger lessons.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"34 1","pages":"89-104"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87295718","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 Law School¿s Fair Image","authors":"Abner J. Mikva","doi":"10.2307/1600557","DOIUrl":"https://doi.org/10.2307/1600557","url":null,"abstract":"The Law School did not have an image problem when I matriculated in 1948. That is because it didn't have much of an image one way or the other. It had struggled through the war years with reduced enrollment and a very nice dean named Wilber Katz (pronounced \"Kotz\"). He taught Corporate Management and Finance, had a deep concern about the miasma of the then-existing Illinois criminal procedure (and did something about it), and was very happy to pass off the deanship to one of the Young Turks who had joined the faculty during and after the war. It was quite a group of young bloods. Edward Levi, using two huge volumes of unindexed and home-grown materials, was teaching a course called \"Elements of the Law.\" None of us quite understood it, but were fascinated with both the course and him. He was Jekyll and Hyde: In class, he was master of the universe, with a needling sense of humor, and particularly ready to take on anyone who thought he knew all the answers. (I use the male gender advisedly; there were only three women in our class, and Levi was too chivalrous to trick them into his bag). Outside of class, he was meek and self-effacing, giving no one any premonitions of where he planned to go in his career. Walter Blum already was making a name for himself in the tax field. Harry Kalven, Jr., who had trouble getting his tenure piece written because he spent so much time with his students, and Bernard D. Meltzer, who had just come back from the Nuremberg War Crime Trials, rounded out the new kids on the faculty block. They had some peerless backstopping in the likes of Malcolm Sharp, who taught contracts and never heard a question or comment in class that wasn't \"interesting\" and worth pursuing; Charles 0. Gregory who taught torts and labor law, and never seemed to have a bad day; William Winslow Crosskey, who taught constitutional law in a way that fascinated his students, but didn't square with what the Supreme Court was saying about the Constitution; Sheldon Tefft, who taught property and who some of us believed had clerked for the judge who wrote the Rule in Shelley's Case; and Max Rheinstein, who taught comparative law to those who could wade through his marvelously","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"24 1","pages":"259-264"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85340906","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 Changing Purposes of Criminal Punishment: A Retrospective on the past Century and Some Thoughts about the Next","authors":"A. Alschuler","doi":"10.2307/1600541","DOIUrl":"https://doi.org/10.2307/1600541","url":null,"abstract":"Discussions of the textbook purposes of criminal punishmentretribution, deterrence, incapacitation, and rehabilitation' sometimes seem too abstract to matter. This Essay, however, examines two unmistakably consequential shifts in the stated objectives of punishment. It describes America's turn to rehabilitative goals early in the twentieth century, the persistence of these goals through most of the century, and the demise of rehabilitation and emergence of a \"new penology\" in the century's final quarter. It contends that both American revolutions in penal objectives were mistaken. Retribution, the purpose of punishment most disparaged from the beginning of the century through the end, merits recognition as the criminal law's central objective.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"10 1","pages":"1-22"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85398416","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 Least Restrictive Means","authors":"A. Sykes","doi":"10.2307/1600566","DOIUrl":"https://doi.org/10.2307/1600566","url":null,"abstract":"Least restrictive means requirements and related legal principles, which require regulators to pursue regulatory objectives in the manner that is \"least restrictive\" of other societal values, pervade national and international legal systems.' In American constitutional law, they appear in First Amendment cases, in Equal Protection cases, and in Dormant Commerce Clause cases, among others. They perform similar functions in European Law, such as in the jurisprudence of Articles 30 and 36 of the Treaty of Rome. They may be found in a number of articles of the North American Free Trade Agreement (NAFTA), and they play an essential role in the law of the World Trade Organization (WTO). Despite the extensive use of least restrictive means requirements in the law, their meaning has rarely been explored with care. Precisely how does one determine whether some regulatory policy is a less restrictive alternative (or not)? One class of cases seems clear-when an alternative regulation unquestionably achieves a clearly stipulated regulatory objective at equal or lower cost to regulators while imposing a lesser burden on some other valued interest (free speech, free trade, or the like), the alternative is \"less restrictive.\" But these conditions seem quite narrow, and the question arises whether a challenged regulation will necessarily pass muster when they do not hold. A proposed alternative may be somewhat more costly to implement, for example, or slightly less effective at achieving the stated regulatory objective, yet still seem quite preferable if it is much less burdensome on the interest that is protected by the least restrictive means requirement. One wonders, therefore, whether a least restrictive means analysis will drift toward broader cost-benefit analysis. That is the central question this Essay explores. The answer may well depend on context, and in this short Essay I cannot explore the least restrictive means test in all of its domestic and international manifestations. The analy-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"3 1","pages":"403-420"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87383534","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}