DOCSLIB.ORG

Iharvard Law Review

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Iharvard Law Review VOLUME 112 APRIL 1999 NUMBER 6 IHARVARD LAW REVIEW ARTICLE POSITIVE RIGHTS AND STATE CONSTITUTIONS: THE LIMITS OF FEDERAL RATIONALITY REVIEW Helen Hershkoff TABLE OF CONTENTS INTRODUCTION ............................................................................................................................. 1132 I. STATE CONSTITUTIONAL WELFARE PRACTICE ............................................................. 1144 A. A Mandatory Obligation:The New York Example .................................................. 1144 B. A Typology of CurrentState Court Decisions .......................................................... 1145 IT. RECONSIDERING FEDERAL RATIONALITY REVIEW IN STATE CONSTITUTIONAL WELFARE CASES ................................................................................ 1153 A. Rationality Review and Positive Rights .................................................................. 1155 B. RationalityReview and DemocraticLegitimacy .................................................... 1157 C. Rationality Review and JudicialFinality ............................................................. xi61 D. RationalityReview and Federalism......................................................................... i166 E. Rationality Review Revisited.................................................................................... 1169 III. TOWARD A NEW STANDARD OF REVIEW ......................................................................... 1169 A. The Need for JudicialReview .................................................................................. 1170 B. InstitutionalCompetence and Welfare Litigation................................................... 1175 I. State Courts as Fact Gatherers ......................................................................... 1175 2. State Courts as Policymakers ......................................................................... "179 3. State Courts as Rights Enforcers ..................................................................... 1182 C. A Jurisprudenceof Consequences.............................................................................. 1183 D. Why Education and Not Welfare? ........................................................................... i86 E. Implicationsfor Welfare Litigation........................................................................... i9i IV. CONCLUSION ........................................................................................................................ 1194 1131 HeinOnline -- 112 Harv. L. Rev. 1131 1998-1999 POSITIVE RIGHTS AND STATE CONSTITUTIONS: THE LIMITS OF FEDERAL RATIONALITY REVIEW Helen Hershkoff* Many state courts rely on federal standards of review in their state constitutional decisionmaking without considering whether the institutional concerns that justify the federal approach play out differently in the state context. In this Article, Professor Hershkoff questions the premises of federal rationalityreview as applied to the adjudica- tion of claims to welfare assistance under state constitution poverty clauses. Federal ra- tionality review, she argues, rests on doubts concerning democratic legitimacy, federal- ism, and separation of powers that are not completely apposite to state common law courts interpreting state constitutionalpositive rights. When a state constitution man- dates the government provision of social services such as welfare, the relevant judicial question should be whether the challenged law achieves, or is at least likely to achieve, the constitutionallyprescribed end, and not, as federal rationality review would have it, whether the law is within the bounds of state legislative power. Answering concerns that enforcement of positive rights is beyond the institutional competence of state common law courts, Professor Hershkoff proposes an alternative standard to federal rationality review for state court interpretation of state constitutional welfare rights that is conse- quential in focus and consistent with the provisional nature of state court decision- making. The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vo- cal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits where choice ranges.' A lmost thirty years ago, the Supreme Court refused to find a right to welfare in the Federal Constitution, contending that the "administra- *Associate Professor of Law, New York University School of Law. A.B., Radcliffe College, Harvard University, 1973; B.A., St. Anne's College, Oxford University, 1975; J.D., Harvard Law School, 1978. I thank Ed Baker, Vicki Been, Yochai Benkler, Paul Chevigny, Chris Eisgruber, Barry Fried- man, Abner Greene, Marcel Kahan, Lewis Kornhauser, Larry Kramer, Sylvia Law, Stephen Lof- fredo, Holly Maguigan, Nancy Morawetz, Burt Neuborne, Rick Pildes, Ricky Revesz, Larry Sager, Linda Silberman, and Frank Upham for helpful comments on earlier drafts of this Article. I presented a version of this Article at the New York University School of Law Colloquium on Constitutional Theory, and also outlined some of its ideas at the New York University School of Law Review of Law and Social Change Colloquium on Confronting Welfare Reform: Strategies for Advocates, and at the Government Law Center of Albany Law School and the Touro College Jacob D. Fuchsberg Law Center Symposium on State Constitutional Law: Adjudication and Re- form. A version of my conference remarks is published as Rights and Freedoms Under the State Constitution:A New Dealfor Welfare Rights, 3 TOURo L. REV. 631 (i997). I am grateful to Ron Brown for library support, and to the New York University School of Law Filomen D'Agostino and Max E. Greenberg Research Fund. Finally, I would like to thank Dean John Sexton for en- couragement. 1 BENJAMIN N. CARDozo, THE NArURE OF THE JUDICIAL PROCESS 94 (192 1). 1132 HeinOnline -- 112 Harv. L. Rev. 1132 1998-1999 19991 POSITIVE RIGHTS AND STATE CONSTITUTIONS "133 tion of public welfare assistance" raises "intractable economic, social, and 2 even philosophical problems" that "are not the business" of the Court. Since then, the Court has rejected constitutional claims to housing,3 to public education,4 and to medical services, 5 on the view that the govern- ment does not owe its citizens any affirmative duty of care.6 Endorsing a view of the Federal Constitution as a "charter of negative rather than posi- tive liberties,"7 the Court has resisted acknowledging any "affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."' Although some commentators question the normative basis for the Court's approach, 9 they generally agree that a fed- 2 Dandridge v. Williams, 397 U.S. 471, 485, 487 (197o). But see Stephen Loffredo, Poverty, Democracy and ConstitutionalLaw, 141 U. PA. L. REv. 1277, 1388-89 (1993) (criticizing the Court's approach as ignoring the structural role of money in American politics). 3 See Lindsey v. Normet, 405 U.S. 56, 74 (1972) (rejecting the idea of a fundamental right to housing). But cf Frank I. Michelman, The Advent of a Right to Housing: A Current Appraisal, 5 HARv. C.R.-C.L. L. REV. 207, 209-12 (1970) (presenting arguments in favor of a constitutional right to housing). 4 See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,35 (1973) (rejecting education as a fundamental constitutional right). But cf Susan H. Bitensky, Theoretical Foundationsfor a Right to Education Under the U.S. Constitution:A Beginning to the End of the National Educa- tion Crisis, 86 Nw. U. L. REV. 550, 553 (1992) ("Doctrines interpreting the Constitution are rich with possible theoretical bases for asserting an unenumerated affirmative right to education."). 5 See Harris v. McRae, 448 U.S. 297, 318 & n.2o (i98o) (finding no constitutional obligation upon the government to provide financial assistance to indigent women seeking to exercise repro- ductive choice). But cf Wendy E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the FramingEra, 20 HASTINGS CONST. L.Q. 267, 312-19 (1993) (using an analysis of social contract theory and early public health laws to contend that the framers in- tended not only to empower but also to obligate the government to provide for the public health). 6 See ISAIAH BERLIN, Two Concepts of Liberty, in FouR ESSAYS ON LIBERTY 118, 122-44 (1969) (setting forth the conventional distinction between negative and positive rights); ROBERT E. GOODIN, REASONS FOR WELFARE: THE POLITICAL THEORY OF THE WELFARE STATE 184- 85 (1988) ("It is now well established that certain rights of both a negative ('security') and a posi- tive ('subsistence') kind are not only compatible with but are actually presupposed by all rights claims." (citations omitted)); JEREMY WALDRON, Liberal Rights: Two Sides of the Coin, in LIBERAL RIGHTS i, 6 (1993) (discussing this distinction, and emphasizing the importance of posi- tive rights to material well-being). 7 Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983). But see Susan Bandes, The Negative Constitution:A Critique, 88 MICH. L. REV. 2271, 2278-2309 (1990) (criticizing this nega- tive conception); James E. Fleming, Constructing the Substantive Constitution,
Load more

Recommended publications
  • Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel
    RETHINKING THE BOUNDARIES OF THE SIXTH AMENDMENT RIGHT TO CHOICE OF COUNSEL I. INTRODUCTION Criminal defense is personal business. For this reason, the Consti- tution’s ample procedural protections for criminal defendants are writ- ten not just to provide a fair trial, but also to put the defendant in con- trol of his own defense. Courts and commentators alike have rec- ognized that the constitutional vision of liberty requires not only protection for the accused, but also the right of the accused to speak and act for himself.1 The Sixth Amendment also reflects the common understanding that the assistance of counsel can be crucial — even necessary — to effective defense,2 but its language and structure nev- ertheless make clear that the rights and their exercise belong to the de- fendant himself, not his lawyer.3 The right to the assistance of counsel has many facets, but its most ancient and fundamental element is the defendant’s right to counsel of his own choosing. Indeed, the Supreme Court has identified choice of counsel as “the root meaning of the constitutional guarantee.”4 Yet ac- tual choice-of-counsel doctrine gives the state broad authority to inter- fere with the exercise of this right. For example, a defendant may not choose an advocate whose representation creates a potential conflict of interest for the defendant, even if the defendant knowingly and intelli- gently waives any objection to the potential conflict,5 and a defendant has no right to be represented by an advocate who is not a current member of a state bar association.6 The remedy for a choice-of- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Faretta v.
    [Show full text]
  • The Socratic Method in the Age of Trauma
    THE SOCRATIC METHOD IN THE AGE OF TRAUMA Jeannie Suk Gersen When I was a young girl, the careers I dreamed of — as a prima ballerina or piano virtuoso — involved performing before an audience. But even in my childhood ambitions of life on stage, no desire of mine involved speaking. My Korean immigrant family prized reading and the arts, but not oral expression or verbal assertiveness — perhaps even less so for girls. Education was the highest familial value, but a posture of learning anything worthwhile seemed to go together with not speak- ing. My incipient tendency to raise questions and arguments was treated as disrespect or hubris, to be stamped out, sometimes through punish- ment. As a result, and surely also due to natural shyness, I had an almost mute relation to the world. It was 1L year at Harvard Law School that changed my default mode from “silent” to “speak.” Having always been a student who said nothing and preferred a library to a classroom, I was terrified and scandalized as professors called on classmates daily to engage in back-and-forth dia- logues of reasons and arguments in response to questions, on subjects of which we knew little and on which we had no business expounding. What happened as I repeatedly faced my unwelcome turn, heard my voice, and got through with many stumbles was a revelation that changed my life. A light switched on. Soon, I was even volunteering to engage in this dialogue, and I was thinking more intensely, independently, and enjoyably than I ever had before.
    [Show full text]
  • John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series Is Satisfaction Success? Evaluati
    John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series Is Satisfaction Success? Evaluating Public Participation in Regulatory Policymaking Cary Coglianese September 2002 RWP02-038 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. All works posted here are owned and copyrighted by the author(s). Papers may be downloaded for personal use only. Is Satisfaction Success? Evaluating Public Participation in Regulatory Policymaking Cary Coglianese* Harvard University Dispute resolution seeks to find satisfactory solutions to conflicts, and researchers who evaluate dispute resolution procedures understandably want to consider whether disputants using these procedures are eventually satisfied with the resulting outcomes. A similar emphasis on satisfaction pervades the literature on techniques for resolving disputes and involving the public in regulatory policymaking. These techniques include the broad range of procedures and methods available to government for allowing input, feedback, and dialogue on regulatory policymaking, including comment solicitation, public hearings, workshops, dialogue groups, advisory committees, and negotiated rulemaking processes. Researchers evaluating these various techniques have often used participant satisfaction as a key evaluative criterion. While this criterion may seem suitable for evaluating private dispute resolution techniques, those who disagree in policy-making processes are not disputants in the same sense that landlords and tenants, creditors and debtors, or tortfeasors and victims are disputants in private life. Disputes in regulatory policymaking arise over public policy, not * Associate Professor of Public Policy and Chair of the Regulatory Policy Program, Harvard University, John F.
    [Show full text]
  • Recent Publications
    RECENT PUBLICATIONS THE TRIALS OF ACADEME: THE NEW ERA OF CAMPUS LITIGA- TION. By Amy Gajda. Cambridge, Mass.: Harvard University Press. 2009. Pp. x, 334. $35.00. In this well-written new book, Professor Amy Gajda delves into the explosion of university-related litigation and questions why judges have moved away from their previous wil- lingness to allow the academy to regulate itself. Gajda argues persua- sively that this litigiousness creates a strange academic environment in which “[c]ollege administrators may . wish to check with counsel before assigning teaching packages” (p. 104). Of particular note is the incredible range of subjects touched on by campus litigation — most of which receive their own chapters in this work — including lofty subjects such as free speech, tort law, and privacy, but also more ab- surd claims seeking the regrading of papers or promissory estoppel ac- tions to prevent expulsion. Gajda lays blame for this trend fairly even- ly at the feet of litigants, legislators, and courts, decrying the ultimate outcome: a “trajectory of court decisions [that] . encourages and channels ever more campus controversies into court” (p. 109). While ultimately a work of retrospection and not a prescription for the fu- ture, this book is a useful primer on the legal challenges facing higher education. THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW FOR THE UNITED STATES. By Roberta Rosenthal Kwall. Stanford, Cal.: Stanford University Press. 2010. Pp. xviii, 247. $24.95. Ameri- can copyright law attempts to strike a balance between protecting au- thor’s rights and preserving the public domain. In an insightful new book, Professor Roberta Rosenthal Kwall offers a new perspective to this ongoing conversation.
    [Show full text]
  • Corporate Political Speech: Who Decides?
    CORPORATE POLITICAL SPEECH: WHO DECIDES? Lucian A. Bebchuk∗ and Robert J. Jackson, Jr. ∗∗ For Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate political speech. I. INTRODUCTION The Supreme Court spoke clearly this Term on the issue of cor- porate political speech, concluding in Citizens United v. FEC1 that the First Amendment protects corporations’ freedom to spend corpo- rate funds on indirect support of political candidates.2 Constitutional law scholars will long debate the wisdom of that holding, as do the au- thors of the two other Comments in this issue.3 In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus in- stead on an important question left unanswered by Citizens United: who should have the power to decide whether a corporation will engage in political speech? Under existing law, a corporation’s decision to engage in political speech is governed by the same rules as ordinary business decisions, which give directors and executives virtually plenary authority. In this Comment, we argue that such rules are inappropriate for corporate po- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ William J. Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance and Director of the Corporate Governance Program, Harvard Law School. ∗∗ Associate Professor of Law, Columbia Law School. Although Professor Jackson recently served as an advisor to senior officials at the Depart- ment of the Treasury on matters related to corporate governance and Professor Bebchuk recently served as an advisor to the Department of the Treasury’s Office of the Special Master for TARP Executive Compensation, their work on this Comment commenced after their government affili- ations ended, and the views expressed in this Comment are solely their own.
    [Show full text]
  • LAURA ANN ROSENBURY Washington University School of Law Campus Box 1120 One Brookings Drive St
    LAURA ANN ROSENBURY Washington University School of Law Campus Box 1120 One Brookings Drive St. Louis, MO 63130 718-909-0173 (cell) [email protected] EMPLOYMENT Washington University Law School, St. Louis, MO (2002-present) Professor of Law (tenure effective July 1, 2008) John S. Lehmann Research Professor (2013-2014) Affiliated Faculty, Women, Gender, and Sexuality Studies Program (2007-present) Administrative Appointments Associate Dean for Research and Faculty Development (2010-2012) Association of American Law Schools Membership Review Committee (2014-present) Courses Children and Law, Employment Discrimination, Family Law, Feminist Legal Theory, Property, Public Law Theory Seminar, Trusts and Estates Awards David M. Becker Professor of the Year Award, 2006 Best Paper in Family Law, Stanford/Yale Junior Faculty Forum, 2006 Harvard Law School, Cambridge, MA (2012-2013) Sullivan and Cromwell Visiting Professor of Law Taught Children and Law, Feminist Legal Theory, Property. University of Illinois College of Law, Champaign, IL (spring 2010) Visiting Professor of Law Taught a short course on the Regulation of Intimacy. University of California, Los Angeles School of Law, Los Angeles, CA (winter 2010) Visiting Professor of Law Taught a short course on Relationships at Work. University of Chicago Law School, Chicago, IL (winter and spring 2009) Visiting Professor of Law Taught Family Law and Employment Discrimination. Stanford Law School, Palo Alto, CA (fall 2008) Visiting Professor of Law Taught Children and Law and Feminist Legal Theory. Laura A. Rosenbury curriculum vitae / page 2 Fordham University School of Law, New York, NY (2001-2002) Adjunct Associate Professor of Law Taught Feminist Legal Theory as an evening seminar.
    [Show full text]
  • Nicholas Stephanopoulos
    NICHOLAS O. STEPHANOPOULOS Professor of Law, Harvard Law School Areeda Hall 230, 1545 Massachusetts Ave, Cambridge, MA 02138 (781) 248-8145 | [email protected] EMPLOYMENT HARVARD LAW SCHOOL, Cambridge, MA Professor of Law, 2020-Present Austin Wakeman Scott Visiting Professor of Law, Fall 2018 Research interests include election law, constitutional law, legislation, administrative law, and comparative law. Classes taught include Election Law; Constitutional Law; The Future of Voting Rights; and Law & Politics Workshop. UNIVERSITY OF CHICAGO LAW SCHOOL, Chicago, IL Professor of Law and Herbert and Marjorie Fried Research Scholar, 2017-2019 Assistant Professor of Law, 2012-2017 Classes taught included Election Law; Constitutional Law; Administrative Law; The Future of Voting Rights; Canonical Ideas; The Comparative Law of Democracy; and Public Opinion, Public Policy, and the Law. Helped organize Public Law & Legal Theory Workshop. Committee memberships included Appointments and Clinical and Experiential Learning. COLUMBIA LAW SCHOOL, New York, NY Associate-in-Law, 2010-2012 Taught Legal Practice Workshop to first-year law students. Coordinated weekly Associates’ and Fellows’ Workshop. Contributed to DrawCongress.org redistricting project. JENNER & BLOCK LLP, Washington, DC Associate, 2007-2010 Practice focused on complex federal litigation, appellate advocacy, and election law. Drafted sections of ten Supreme Court briefs, on subjects including Voting Rights Act, Establishment Clause, and criminal procedure. Election law work included redistricting and campaign finance matters. OBAMA FOR AMERICA, Washington, DC Volunteer Attorney, 2007-2008 Carried out legal work for Obama presidential campaign. Served in Election Day legal “war room.” HON. RAYMOND C. FISHER, NINTH CIRCUIT COURT OF APPEALS, Pasadena, CA Law Clerk, 2006-2007 Wrote bench memoranda addressing all aspects of federal appellate cases.
    [Show full text]
  • Provocation Frank’S Way
    PROVOCATION FRANK’S WAY Robert Post∗ I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledg- ment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman. No one would ever confuse these two scholars. Owen’s style is di- visive and pugnacious. His MO is to enter a controversy, the way that Clint Eastwood might enter a saloon, clarify the dispute, and adopt a position. Whether you agree or disagree, you are guaranteed to come away with a better sense of the stakes in question. Frank’s style, by contrast, is anything but swaggering. Frank is empathetic, polite, generous (almost to a fault), indirect, and tentative. His archetypical article worries a question. And when I say worries, I mean the way that a terrier might worry a rat — by turning it over every which way, by attacking it from every possible angle, and by tasting its every implication. In the end Frank may (or as likely may not) reach some provisional conclusions. But in the process the reader will certainly have reaped rich rewards, for he will have experienced how a deep scholarly mind, exercising perfect scholarly integrity, illu- minates depths hitherto unseen and unimagined. He will have been inspired by the gift of insight. Frank’s writings offer wisdom in the service of a passionate fidelity to the intractable complexity of legal issues.
    [Show full text]
  • Kenneth W. Mack
    KENNETH W. MACK Harvard Law School 522 Hauser Hall 1545 Massachusetts Ave. Cambridge, MA 02138 (617) 495-5473 [email protected] EMPLOYMENT 2013- Lawrence D. Biele Professor of Law, Harvard University 2015- Affiliate Professor of History, Harvard University 2006-13 Professor of Law, Harvard University 2000-06 Assistant Professor of Law, Harvard University 2015- Affiliate, Committee on Higher Degrees in American Studies, Harvard University 2015-19 Visiting Professor of Law, Stanford University 2014 Frank Boas Visiting Professor of Law, University of Hawai’i 2013 Senior Visiting Scholar, Joint Centre for History and Economics, Magdalene College and King’s College, Cambridge University 2010-11 Visiting Professor of Law, Georgetown University 1992-1994 Associate, Covington & Burling, Washington, D.C. 1991-1992 Law Clerk, Hon. Robert L. Carter, United States District Court for the Southern District of New York 1987-1988 Member of Technical Staff, AT&T Bell Laboratories, Whippany, N.J. EDUCATION Princeton University, M.A., 1996, Ph.D., 2005, History Harvard Law School, Juris Doctor, cum laude, 1991 Drexel University, B.S., Electrical Engineering, high honors (magna cum laude), 1987 Harrisburg University of Science and Technology, D. Pub. Serv. (honorary), 2010 PUBLICATIONS Books: Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press, 2012) Washington Post Best Book of the Year Honorable Mention, J. Willard Hurst Prize, Law and Society Association National Book Festival Selection Finalist, Julia Ward Howe Award, Boston Author’s Club Kenneth W. Mack - Page 2 (Books, cont’d) The New Black: What Has Changed – And What Has Not – With Race in America (New Press, 2013) (co-editor, with Guy-Uriel E.
    [Show full text]
  • The Statistics
    THE STATISTICS a TABLE I (A) ACTIONS OF INDIVIDUAL JUSTICES Opinions Writtenb Dissenting Votesc In Disposition by Opinions Concur- Memo- of Courtd rencese Dissentse Total Opinion randumf Total Roberts 6 1 4 11 5 0 5 Kennedy 6 5 2 13 6 0 6 Thomas 7 15 9 31 14 1 15 Ginsburg 6 3 6 15 18 0 18 Breyer 7 3 9 19 20 0 20 Alito 7 2 6 15 15 1 16 Sotomayor 7 7 9 23 21 2 23 Kagan 6 2 1 9 16 0 16 Gorsuch 7 4 6 17 11 0 11 Per Curiam 12 — — 12 — — — Total 71 42 52 165 126 4 130 a A complete explanation of how the tables are compiled may be found in The Supreme Court, 2004 Term — The Statistics, 119 HARV. L. REV. 415, 415–19 (2005). Table I, with the exception of the dissenting-votes portion of section (A) and the memorandum tabulations in section (C), includes only full-opinion decisions. Twelve per curiam decisions contained legal reasoning substantial enough to be considered full-opinion decisions in October Term 2017. See Sause v. Bauer, 138 S. Ct. 2561 (2018); Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018); North Carolina v. Covington, 138 S. Ct. 2548 (2018); Benisek v. Lamone, 138 S. Ct. 1942 (2018); Azar v. Garza, 138 S. Ct. 1790 (2018); United States v. Microsoft Corp., 138 S. Ct. 1186 (2018); Kisela v. Hughes, 138 S. Ct. 1148 (2018); CNH Industrial N.V. v. Reese, 138 S. Ct. 761 (2018); Tharpe v. Sellers, 138 S.
    [Show full text]
  • On the Ethics of Exporting Ethics: the Right to Silence in Japan and the US
    John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series On the Ethics of Exporting Ethics: The Right to Silence in Japan and the U.S. Kenneth Winston June 2003 RWP03-027 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. All works posted here are owned and copyrighted by the author(s). Papers may be downloaded for personal use only. ON THE ETHICS OF EXPORTING ETHICS: The Right to Silence in Japan and the U.S. Kenneth Winston Kennedy School of Government In The Question of Hu, Jonathan Spence tells the story of a French missionary in China in the eighteenth century, who set out to prove that certain ancient Chinese documents confirmed his idiosyncratic Christian theory of world history.1 It is the story of a foreigner’s shabby and insensitive treatment of the Chinese people encountered in his spiritual quest, and equally of a European unable to reflect on the limitations of his own intellectual cocoon. The missionary failed to exercise two types of reflection—what I shall refer to as double reflection. He failed to discern what something could mean to the Chinese, especially when at variance with his own understanding, and he was unable to contemplate the contestability of his own worldview. These are difficult abilities to cultivate, and most of us fail to some degree. Yet they are indispensable in a world of increasing communication and interdependence across cultures.
    [Show full text]
  • 400 When Hemi Is Understood in This Light, Justice
    400 HARVARD LAW REVIEW [Vol. 124:179 When Hemi is understood in this light, Justice Ginsburg’s concur- rence emerges as the most laudable of the three opinions issued by the Court. Refusing to engage in the exercise of defining proximate causa- tion, Justice Ginsburg expressly stated her reasons for dismissing the City’s claim: she was reluctant to allow the City — an entity that, as a first matter, could not constitutionally impose a tax on out-of-state sel- lers like Hemi — to recover damages for a violation of an Act in which Congress declined to include a private right of action.75 In so doing, she provided a measure of transparency. One might argue, of course, that allowing the judiciary to make policy judgments in lieu of strict legal analysis undermines the rule of law and has antidemocratic im- plications.76 But while the Court might attempt to define proximate causation and the state-city relationship in a way that provides less in- terpretive flexibility, such definitions have proven elusive for genera- tions of jurists. Some legal questions may always be indeterminate. In such cases, courts can and should rely on policy considerations. When they do so, however, they need not mask their thought process, but should, as Justice Ginsburg did in Hemi, lay bare their reasons for holding as they do.77 Such transparency increases the legitimacy of judicial decisions made in areas “not amenable to bright-line rules.”78 G. Sherman Act Quick Look Rule of Reason. — Section 1 of the Sherman Antitrust Act famously makes illegal any “contract, combination .
    [Show full text]