University of Chicago Law Review最新文献

{"title":"Removing Federal Judges","authors":"James E. Pfander","doi":"10.2307/20141861","DOIUrl":"https://doi.org/10.2307/20141861","url":null,"abstract":"Scholars have in recent years raised a host of questions about Article III's provisions for judicial independence. In a provocative recent essay, Professors Sai Prakash and Steve Smith challenge the conventional view that federal judges may be removed from office only through the relatively cumbersome process of House impeachment followed by a trial in the Senate. Prakash and Smith base their argument against impeachment-and-removal exclusivity on the history of good behavior tenure and the role that courts played in adjudicating claims of misbehavior at common law. Prakash and Smith contend that this judicial mode of removing from office remains available for federal judges, something Congress may revive through the passage of appropriate legislation. This Essay disputes the Prakash and Smith thesis. It shows that the English common law mode of removal from office through judicial proceedings had essentially disappeared by the time of the framing. Both in England, where the Act of Settlement of 1701 regulated judicial office, and in the newly independent states, constitutional documents almost invariably assigned the ouster of superior court judges to the legislative branch of government. The drafting and ratification debates reveal that the framers of the federal Constitution made a similar choice, providing a legislative mode of removing misbehaving judges and foreclosing alternative modes. In the end, the evidence sustains the conventional view that the Constitution permits the removal of federal judges only through the legislative process.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"7 1","pages":"1227-1250"},"PeriodicalIF":2.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89596593","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":"'Securing' the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953","authors":"Mariano-Florentino Cuéllar","doi":"10.2139/ssrn.942447","DOIUrl":"https://doi.org/10.2139/ssrn.942447","url":null,"abstract":"American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, the agency had acquired responsibility for social security, education, drug regulation, protection of the food supply, civil defense preparedness, supplying employees to war-related industries, facilitating the relocation of Japanese-Americans, anti-prostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the 20th century: the Department of Health, Education, and Welfare. Yet little is known about precisely how or why the White House fought to create the FSA, why the agency pervasively mixed domestic regulatory and national defense functions both before and after World War II, or what its creation wrought for the legal mandates entrusted to the agency. The analysis reveals how, on the eve of World War II, the White House sought to use the restructuring to achieve greater control over the agency's multiple domains of legal jurisdiction by building oversight capacity in an organizational environment more congenial to the bureaus' functions. It then used that control to publicly promote a broader conception of the \"security\" issue that held the prospect of more thoroughly protecting domestic programs important to the Administration. And by rendering ambiguous the distinction between domestic and international security functions, the Administration enlarged support for some of its signature programs at a time when the New Deal legislative coalition was eroding. In effect, the agency's amalgam of legal functions epitomized the Administration's ambitious conception of \"security,\" which became sufficiently elastic to encompass legal responsibilities now routinely segregated into domains involving social services, economic security, health regulation, and geostrategic national defense. The creation of the FSA also appears to have fomented more subtle (intended and unintended) impacts on matters such as the organization of congressional committees overseeing the agency's legal functions, and the prospects for bureaucratic autonomy among the agency and its bureaus. These dynamics illustrate limitations in prevailing theories of law and organization emphasizing deliberately engineered bureaucratic failure or purely symbolic position-taking. They also showcase the connectio","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"26 1","pages":"2"},"PeriodicalIF":2.0,"publicationDate":"2006-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76607364","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":"Cognitive Errors, Individual Differences, and Paternalism","authors":"J. Rachlinski","doi":"10.1093/acprof:oso/9780199211395.003.0008","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199211395.003.0008","url":null,"abstract":"Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience and training, and demographic variables. None of the three predicts good cognitive performance in a reliable fashion, but all three might predict good performance in certain limited circumstances. Thus, legal scholars interested in the application of psychology to law would do well to consider the possibility that an identifiable group will avoid cognitive errors. Indeed, the legal system treats one of these (experience) as important, and marketers actively engage in efforts to determine the relative vulnerability of different groups to cognitive error.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"77 1","pages":"207-229"},"PeriodicalIF":2.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77376304","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":"Bottom-up versus Top-down Lawmaking","authors":"J. Rachlinski","doi":"10.7551/mitpress/3488.003.0011","DOIUrl":"https://doi.org/10.7551/mitpress/3488.003.0011","url":null,"abstract":"Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. The single-case perspective of adjudication can seem cognitively inferior to the broad perspectives that legislatures can incorporate into their decision-making processes, but adjudication also has its advantages. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate that adoption of simple, elegant rules for decision making. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"34 1","pages":"4"},"PeriodicalIF":2.0,"publicationDate":"2005-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78595130","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":"International Law: A Welfarist Approach","authors":"E. Posner","doi":"10.2139/SSRN.811544","DOIUrl":"https://doi.org/10.2139/SSRN.811544","url":null,"abstract":"This paper evaluates international law from a welfarist perspective. Global welfarism requires that international law advance the well being of everyone in the world, and scholars influenced by global welfarism and similar cosmopolitan principles have advocated radical restructuring of international law. But global welfarism is subject to several constraints, including (1) heterogeneity of preferences of the world population, which produces the state system; (2) agency costs, which produce imperfect governments; and (3) the problem of collective action. These constraints place limits on what policies motivated by global welfarism can achieve, and explain some broad features of international law that otherwise remain puzzling. These features include the central place of state sovereignty in international law despite the moral arbitrariness of borders; the weakness of multilateral treaties; the limited role of individual liability in international law; the predominantly legislative nature of international institutions and the weakness of executive and judicial institutions; and the absence of redistributive obligations in international law.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"48 1","pages":"487"},"PeriodicalIF":2.0,"publicationDate":"2005-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80709891","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":"Judges as Rulemakers","authors":"Emily L. Sherwin","doi":"10.2139/SSRN.790666","DOIUrl":"https://doi.org/10.2139/SSRN.790666","url":null,"abstract":"Frederick Schauer has written a very interesting article (http://ssrn.com/abstract=779386) suggesting that judges who announce rules in the course of adjudicating cases are subject to cognitive biases that interfere with their ability to craft sound rules. In particular, the immediacy of a particular dispute may make the facts of that dispute appear more representative of the classes of facts covered by a rule than they actually are. I agree with Schauer's insight. However, I suggest in a brief reply that certain practices traditionally associated with the common law help to counteract the biases that affect judges. The doctrine of precedent exposes judges to a wider range of fact situations, as well as to the reasoning of past judges. So-called analogical reasoning also greatly increases the range of cases judges consider in designing prospective rules. Both these practices are of questionable value as direct means of deciding cases, but can be valuable as indirect strategies to improve judicial rulemaking. As a result, common law rules may suffer less from distortion than Schauer's theory predicts. However, the traditional practices on which my analysis is based depend on judicial habits that have eroded over time.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"4 1","pages":"3"},"PeriodicalIF":2.0,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81987580","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":"Paretian Intergenerational Discounting","authors":"Dexter Samida, D. Weisbach","doi":"10.2139/SSRN.786546","DOIUrl":"https://doi.org/10.2139/SSRN.786546","url":null,"abstract":"This paper argues that discounting costs and benefits of projects for the opportunity costs of capital Pareto dominates decision criteria that do not discount. It considers and rejects several objections to the Pareto dominance argument, including the problem of making compensating transfers for the costs and benefits of projects and whether taking opportunity costs into account is different than discounting. It also argues that discounting future costs and benefits of projects does not under-value future generations.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"89 1","pages":"145"},"PeriodicalIF":2.0,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85958328","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 Separate Crime of Reckless Sex","authors":"I. Ayres, K. Baker","doi":"10.2139/SSRN.581663","DOIUrl":"https://doi.org/10.2139/SSRN.581663","url":null,"abstract":"This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in unprotected first encounters. The new law, by increasing condom use and the quality of communication in first sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"36 1","pages":"599-666"},"PeriodicalIF":2.0,"publicationDate":"2004-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83609920","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":"Ex Ante Versus Ex Post Justifications for Intellectual Property","authors":"Mark A. Lemley","doi":"10.2139/SSRN.494424","DOIUrl":"https://doi.org/10.2139/SSRN.494424","url":null,"abstract":"The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be \"managed\" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as \"property\" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be \"efficiently managed\" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do. In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"27 1","pages":"129-149"},"PeriodicalIF":2.0,"publicationDate":"2004-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85224653","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":"TRIPS-Round II: Should Users Strike Back?","authors":"R. Dreyfuss","doi":"10.4324/9781315085463-10","DOIUrl":"https://doi.org/10.4324/9781315085463-10","url":null,"abstract":"The TRIPS Agreement,' the instrument of the General Agreement on Tariffs and Trade (GATT) governing intellectual property protection at the international level, is structured to directly protect the rights of intellectual property holders. It does little, however, to explicitly safeguard the interests of those who seek to use protected works. In some ways, this structure is not surprising. Because the free traders who negotiated the GATT worked in an environment in which the core concern, reducing market barriers, was viewed as producing (at least in the long term) unmitigated welfare gains, they were not likely to appreciate the social importance, in TRIPS, of balancing proprietary interests against public access needs. Moreover, to the extent that the United States was a prime mover in the Uruguay Round, its intent was to ease U.S. trade deficits by creating broader exclusive markets for intellectual products, a goal with rather a scant role for user rights. As a result, the TRIPS Agreement specifies levels of protection that can be exceeded, but not easily diminished. User interests are largely left to domestic practice through provisions like the famous (now notorious) \"three-part\" tests, which permit members to create limited derogations from protection, but only so long as they do not unreasonably conflict with normal exploitation of the protected work or unreasonably prejudice the right holder (taking into account, in the case of patents, the interests of third parties).3 It is rapidly becoming evident, however, that there are problems with a bifurcated system that, in effect, permits (encourages) members to expand intellectual property rights, but which makes them subject to challenge before the WTO when they reduce any of the incidents of protection. Developing countries are the most obviously vulnerable. Because their obligation to protect intellectual property arises solely out of WTO","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"7 1","pages":"21-35"},"PeriodicalIF":2.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89038219","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}