Washington and Lee law review最新文献

{"title":"The Character of Legal Reasoning","authors":"Brett G. Scharffs","doi":"10.2139/SSRN.2614136","DOIUrl":"https://doi.org/10.2139/SSRN.2614136","url":null,"abstract":"Legal reasoning is unique and distinctive. Good legal reasoning is a combination of practical wisdom (phronesis), craft (techne), and rhetoric (rhetorica). When composed harmoniously, these concepts constitute the bedrock characteristics of the good lawyer and judge.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"61 1","pages":"733"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medicare and political analysis: Omissions, understandings, and misunderstandings","authors":"T. Marmor, Spencer A. Martin, J. Oberlander","doi":"10.1142/9789812708434_0004","DOIUrl":"https://doi.org/10.1142/9789812708434_0004","url":null,"abstract":"I. IntroductionThe focus of this Article requires some explanation. It is not a recapitulation of the patterns of Medicare's politics from enactment in 1965 to the present (2003). That is the subject of Jonathan Oberlander's other article in this issue. Nor is the main.focus on projections of Medicare's future politics, a daunting topic addressed only briefly here. Instead, the Article aims to make sense of the scholarly literature on the Medicare program and its politics by distinguishing among (and discussing) three categories of commentary:(1) Program and policy discussion without political analysis: the literature of straightforward omission.(2) Program and policy discussion with serious political analysis: the literature of commendable commission.(3) Program and policy evaluation that purports to incorporate political analysis, but fails to do so credibly: the literature of regrettable misunderstanding.Why focus on the existing Medicare scholarship and, in particular, the quality of political analysis in that literature? Our fundamental premise is that the Medicare program is regularly misunderstood through ignorance of its political history, confusion about its fundamental values, and distortion of the program's choices by unsubstantiated presumptions about what Medicare's purposes were supposed to be. The future of Medicare is certain to be a matter of political concern in the decade ahead. Prudent reform depends crucially on clarifying what the program does and does not do. That, in turn, requires attention to Medicare's central social aims, actual historical experience, and recognizable political identity. Our literature search revealed serious difficulties on all three counts.Our survey of the Medicare literature illustrates just how often Medicare is misunderstood and how rare cogent analysis of its politics is. If the public debate on Medicare is to be improved in these respects, we need to identify and understand common misconceptions about the program and explain their apparent staying power. That is the aim of this Article.II. The Literature of Straightforward Omission: Program and Policy Discussion Without Political AnalysisThe dominant literature on Medicare is what many call health services research.1 The great majority of researchers working on Medicare understand the program predominantly from the perspective of systematic policy analysis and consequently view public policy largely as collective problem solving. Often trained in economics, they have produced a vast literature on the impact of Medicare payment policies, the structure of its benefit package, and the economic behavior, demographic characteristics, and financial state of Medicare beneficiaries.2 This line of scholarship suggests that if there were more factual understanding of Medicare's circumstances, the quality of problem solving would improve. And this work presumes that public policy can and should be studied as a matter of objective, technical inquiry.Health","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 1","pages":"1137"},"PeriodicalIF":0.0,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64022429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Habeas Standards of Review Under 28 U.S.C. Section 2254(D)(1): A Commentary on Statutory Text and Supreme Court Precedent","authors":"Allan Ides","doi":"10.2139/SSRN.437420","DOIUrl":"https://doi.org/10.2139/SSRN.437420","url":null,"abstract":"The Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA\") extensively revised of the law of habeas corpus as practiced within the federal judicial system. One of those revisions is found in 28 U.S.C. section 2254(d), which limits a federal court's authority to grant writs of habeas corpus on behalf of persons held in state custody. Consistent with this section, a federal court's jurisdictional authority is constrained by three specified standards of review, two pertaining to errors of law and one pertaining to errors of fact. The focus of this article is on subsection (d)(1), which creates the critical review standards applicable to errors of law. A mere seventy-six words in length, subsection (d)(1) is enormously important because it controls all \"error of law\" access to federal habeas review. As a practical matter, the operational scope of subsection (d)(1) depends on the interpretation of its two key textual components. The first limits the grant of federal habeas to state court decisions that contravene \"clearly established Federal law, as determined by the Supreme Court.\" Careful attention to these words is required to appreciate the nature and scope of the claims that may be asserted on habeas. The second component creates two alternative standards of review, one pertaining to state court decisions that are \"contrary to\" that clearly established federal law, and the other pertaining to state court decisions that \"involve an unreasonable application of\" that law. This article presents a detailed examination of the text of section 2254(d)(1) and a close examination of all the key Supreme Court precedents interpreting and applying that text, including the quartet of section 2254(d)(1) decisions issued during the October 2002 Term of the Court. The goal is to capture a sense of how one might navigate this text in the real world of habeas litigation. The author's ultimate conclusion is that the text is more significant than the precedents construing it and that properly understood the text is not the draconian measure many have assumed it to be.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 1","pages":"677"},"PeriodicalIF":0.0,"publicationDate":"2003-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68783282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Marbury Ascendant: The Rehnquist Court and the Power to \"Say What the Law Is\"","authors":"Timothy J. Zick","doi":"10.2139/SSRN.391400","DOIUrl":"https://doi.org/10.2139/SSRN.391400","url":null,"abstract":"Marbury posited that it is \"emphatically\" the power of the judiciary to \"say what the law is.\" This Article focuses on two areas in which the Rehnquist Court has dramatically advanced a judicial supremacy model for interpreting legal meaning. The first is the Court's newly restrictive interpretation of Congress' power under Section 5 of the Fourteenth Amendment to \"enforce\" the guarantees set forth in Section 1 of the amendment. The second development is the Court's diminished deference to agency interpretations of law under the Mead-Christensen doctrine. Because commentators have generally tended to address the recent spate of Section 5 precedents as record-centric intrusions on legislative fact-finding authority, rather than bold assertions of interpretive supremacy, the connection between these parallel developments has been missed. This Article links the Section 5 cases and the Mead-Christensen doctrine as parallel manifestations of the ascendancy of judicial power under the Rehnquist Court. The Mead-Christensen model diminishes, yet does not wholly foreclose, judicial deference to legal interpretations by other branches. Conceptualizing the Section 5 precedents as a struggle over interpretive supremacy rather than institutional fact-finding, the Article proposes that the Court apply the Mead-Christensen model for reviewing agency interpretations of law to Congress' exercise of the Section 5 enforcement power. Application of the agency model to exercises of the Section 5 power would preserve the Court's ability to render definitive constitutional interpretations, while at the same time preserving, in instances where the Court has not plainly foreclosed alternative interpretations, a sphere of legislative enforcement and interpretation that is entitled to judicial \"respect,\" insofar as any particular enactment has the \"power to persuade.\" In short, the model would allow for a true sharing of the Section 5 power in some circumstances, as is contemplated by the constitutional text, while rejecting either judicial supremacy or wholesale deference to legislative enforcement decisions.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"59 1","pages":"839"},"PeriodicalIF":0.0,"publicationDate":"2003-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68665224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Federalism's Unanswered Question: Who Should Prosecute State and Local Officials for Political Corruption?","authors":"George D. Brown","doi":"10.2139/SSRN.401180","DOIUrl":"https://doi.org/10.2139/SSRN.401180","url":null,"abstract":"This Article examines a fundamental tension in the effort to attack corruption and achieve \"reform.\" Many prosecutions of state and local officials are brought by the federal government. Yet, the Supreme Court, through its New Federalism jurisprudence, is carving out an enhanced vision of state sovereignty. One aspect of sovereignty is the ability not only to choose officials, but to control their conduct while in office and to discipline them. Yet the national sovereign often polices state officials. Section I examines the statutory basis of the prosecutions. The Article contends that, contrary to the general view, the relevant statutes are clearly aimed at political corruption. They represent a conscious national decision to pursue corrupt governmental activity, rather than simply criminal laws that happen to reach illegal official behavior. Section II examines major themes of the Court's New Federalism, as well as academic commentary. The analysis emphasizes the extent to which the cases present the states as almost mini-republics. Section III focuses on the inconsistency between the anti-corruption prosecutions and the New Federalism. Particular emphasis is placed on the concept of accountability. Cases such as New York and Printz focus on citizens knowing whom to blame in the case of government actions with which they do not agree. It is essentially the same notion of accountability that embraces the discipline of an official potentially guilty of wrongdoing. Section IV begins the search for lines of authority that might support an active national role. It analyzes the patronage cases, beginning with Elrod v. Burns. I find in them more than just the First Amendment analysis principally relied on; they are presented as endorsing national oversight of state political processes. The cases are analyzed as reaching beyond the franchise - indeed, voting rights precedents play little or no role - and extending to the ongoing neutrality and fairness of government. The cases provide some support for the federal role that the corruption prosecutions represent. Section V seeks other possible bases of support for a protective role. Numerous themes in the American legal tradition are relevant to the question of guarding the guardians. States may be unable to police certain problems adequately, especially if those involved are investigating themselves. The national government has always shown a special solicitude for matters such as the franchise, the electoral process, and the protection of civil rights. I also examine the development by the lower federal courts of the doctrine of the citizen's intangible right to honest services. Section VI examines scenarios in which the Court might face the reconciliation problem. One area is the use of the affecting commerce jurisdictional element in the Hobbs Act. I consider the possibility of a substantial curtailment here, as well as in the jurisdictional reach of the mail fraud statute. The Court may reconsider s","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 1","pages":"417"},"PeriodicalIF":0.0,"publicationDate":"2003-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68679535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What if technology never stops improving? Medicare's future under continuous cost increases.","authors":"Mark V Pauly","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 4","pages":"1233-50"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25645806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patient autonomy versus religious freedom: should state legislatures require Catholic hospitals to provide emergency contraception to rape victims?","authors":"Heather Rae Skeeles","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 3","pages":"1007-48"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24835913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Financial conflicts of interest in human subjects research: proposals for a more effective regulatory scheme.","authors":"Karen A Jordan","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"60 1","pages":"15-109"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25679449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Warren Court, Criminal Procedure Reform, and Retributive Punishment","authors":"Darryl K. Brown","doi":"10.2139/SSRN.358581","DOIUrl":"https://doi.org/10.2139/SSRN.358581","url":null,"abstract":"The Warren Court's legacy in criminal justice is largely one of increasing constitutional regulation of criminal procedure rather than substantive criminal law or punishment. In this symposium contribution, Professor Brown argues that, more than three decades after Warren's resignation, the effect of that effort to improve overall criminal justice is uncertain at best. In an example of unintended consequences, that reform effort bears indirect responsibility for shifting criminal justice toward its current, harshly punitive orientation. Perversely, the Warren Cour's criminal procedure decisions helped prompt a popular-political response that moved criminal justice from its long-standing commitment to rehabilitation toward the current focus on deterrence, incapacitation and retributivism through the mechanism of severe sentencing policies. Normative gains the criminal justice system saw through procedural advances such as right to counsel have been offset by policy shifts in substantive criminal law and punishment that the Warren Court left to the political branches.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"59 1","pages":"1411"},"PeriodicalIF":0.0,"publicationDate":"2002-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68609431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conflicts of Interest and the Constitution","authors":"D. Orentlicher","doi":"10.2139/SSRN.312440","DOIUrl":"https://doi.org/10.2139/SSRN.312440","url":null,"abstract":"Increasingly, society has recognized the concerns posed by conflicts of interest. Conflicts of interest may compromise audit reports by accounting firms, courtroom decisions by judges, and treatment decisions by physicians. In several areas of the law, rules have been adopted to contain the influence of conflicts of interest. Codes of professional responsibility limit the ability of lawyers to represent both sides of a dispute, principles of corporate law prevent company directors from trading on inside information, and rules of agency law prohibit trustees from mingling their own funds with those of the trust.Conflicts of interest also can play a critical role in shaping constitutional doctrine. However, that role is seriously underappreciated. Courts and scholars mention conflicts concerns on occasion, but there have been few analyses of the role of conflicts of interest in constitutional interpretation. Consequently, legal scholarship has not adequately considered how constitutional law does and should take account of such conflicts.In this article, I offer a fuller discussion of conflicts of interest and constitutional interpretation. In particular, I will show how consideration of conflicts can help us solve three leading puzzles in constitutional theory and doctrine?the lack of a strong theory for separation of powers cases, the tension between judicial supremacy and the political question doctrine, and the question whether the process of constitutional amendment is governed exclusively by Article V. Addressing conflicts of interest can supply the missing theoretical principle for each of these important constitutional problems.In short, from separation of powers concerns to the political question doctrine and the constitutional amendment process, we can bring more coherence to constitutional law if we judge constitutional questions according to the influence that conflicts of interest might have.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"59 1","pages":"713"},"PeriodicalIF":0.0,"publicationDate":"2002-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}