Michigan Law Review

Published by Michigan Law Review
Print ISSN: 0026-2234
Data collected in the National Election Survey from 2248 respondents before the 1976 U.S. presidential election and from 1909 respondents following the election was used to examine the impact of the abortion issue on the election outcome. Analysis revealed that despite the wide news coverage given to the issue and the intense effort on the part of the National Council of Catholic Bishops to politicize the abortion issue, voters gave little priority to the abortion issue. Less than 1/2 of 1% of the votes cast by the respondents could be accounted for by the voter's opinion on abortion. Although both Carter and Ford opposed a constitutional amendment restricting abortion, Ford's position was closer to the position of the pro-life groups than Carter's position. When other factors were controlled, 47.7% of the respondents who were opposed to abortion for any reason voted for Carter and 54.4% of those who though abortion should never be forbidden voted for Carter. These findings indicated that there was a relationship between voting behavior and abortion attitudes but that the relationship was very mild. Abortion was certainly not a major issue in the minds of the voters. When the respondents were asked to name the 3 major issues in the campaign only 1/10 of 1% mentioned the abortion issue. The prediction was made that the pro-life groups would attempt to make abortion an issue in subsequent elections but that the major impact of this effort would be felt only at the local level and not at the federal level.
The discussion in the U. S. Congress preceeding the passage of the 1976 Hyde Amendment, prohibiting the use of Medicaid funds for abortions, was described and the results of a multivariate analysis of the factors influencing the votes on the amendment in the House of Representatives were presented. Between June 24-August 10, 1976 there were 3 roll call votes on the amendment in the House of Representatives and during this period support for the amendment increased from 54%-69%. Multiple classification analysis was used to analyze the relative influence of 11 independent variables on the voting behavior of the representatives. The 11 variables included 1) the age, educational level, sex, and religious affliation of the representative; 2) the representative's party affliation, degree of constituent support, and previous voting record on liberal issues; and 3) the average income, racial composition, geographical location, and the % of urban residents in the representative's district. The factor which served as the best indicator of the representative's vote on the amendment was the representative's previous voting record on liberal issues. Those with more liberal voting records tended to vote against the amendment and those with more conservative voting records tended to vote for the amendment. The 2nd best predictor of amendment votes was the religious affliation of the representative. Catholic representatives, compared to Protestant and Jewish representatives, were more likely to support the amendment. Geographical location of the representative's district was a moderate indicator of the representative's vote on the amendment. Representatives from the south were more likely to support the amendment. The degree of constituent support for the representative in his own district was also a moderate indicator of the representatives vote on the amendment. The 11 factors together accounted for 1/3 of the votes.
In 1973 the United States Supreme Court ruled that abortion could be had practically on request during the first 3 months of pregnancy. This article discusses whether the decision led to more public support for that position, and where in the U.S. the increase in support has been most drastic. The most recent public opinion polls indicate about 60% public support legalized abortion, while it was only 45% before 1973. Support has also increased even if pregnancy is not judged to be detrimental to the mother's health, or if it is not the result of rape and/or incest, but even if it is simply requested for economic or purely personal reasons. People under 30, with college education, men and Protestants, seem to be the staunchest supporters of abortion on demand. There has also been an increase in the number of Catholics supporting abortion. Support for abortion increased in most states between 1969-1973, particularly in the West and in the Northwest. The fight to deny federal funds for abortion is still raging in Congress; some studies indicate that the religion of the legislators is the most powerful predictor of voting on abortion, and that the decision is a very personal one, and not easily altered by the lobbying of groups on either side.
An imaginary lawsuit is discussed wherein the issues involved in public abortion-funding and population control are brought out. Issues raised are: 1) the public hospital's charter which authorizes "medically necessary" abortions; 2) the constitutionality of state action providing free medical treatment for indigent women seeking abortions but not providing free antenatal and childbirth services; and 4) the individual rights of privacy, due process of law, and equal protection under the law.
It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He applies for a job that has been structured for people who can see clearly, and asks the employer to purchase work equipment (like a new computer) that will enable him to perform the job with limited eyesight. Purchasing this equipment will be costly, and the employer asks why it should have to bear those costs when the applicant could have surgery to enable him to see better. The question raises a core issue of rights and responsibilities under a civil rights law. But Title I of the ADA, which protects a qualified individual with a disability from employment discrimination based on his disability, never indicates whether there is a duty to mitigate, either by undergoing medical procedures, using medication, pursuing physical therapy, losing weight, abstaining from alcohol and cigarettes, or taking other measures to improve health and eliminate obstacles to employment. The Supreme Court has not yet considered the question, and legal commentators have all but ignored it. The few lower courts to address a duty to mitigate under Title I are divided on whether mitigation should be required, and those in favor of the duty have not developed a clear standard for when that duty should apply. To the extent that the decisions supporting a duty to mitigate imply any principle for implementing the duty, most appear to suggest that Title I plaintiffs are obligated to mitigate whenever mitigation is possible. I reject both extremes of the existing debate. This Article argues that plaintiffs seeking Title I protection should be under a duty to mitigate, but that this duty should require plaintiffs to pursue only those mitigating measures that could reduce their need for workplace accommodation and that a reasonable person in the same situation would pursue.
When the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternative approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives-that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it. If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations. The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.
It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation that would allow terminally ill individuals the choices they had previously sought through litigation. Oregon's experience with its Death with Dignity Act, which grants terminally ill, mentally competent individuals the choice to end their lives through self-administered medication, has proven that such laws provide comfort not only to those who, faced with the prospect of a horrible death from a terminal illness, choose to end their lives in a peaceful and dignified manner, but also to those to ultimately choose not to. Additionally, Oregon's experience shows that the fears that originally attended the "assisted suicide" debate are unfounded so long as proper procedures are in place. Because Oregon's Death with Dignity Act has proven both useful and harmless, this Article concludes that it is time for other states to follow Oregon's lead and enact their own legislation to allow their citizens an alternative to what otherwise could be a prolonged and painful death from terminal illness.
Theories of parental alienation abound in high-conflict custody cases. The image of one parent brainwashing a child against the other parent fits with what we think we know about family dynamics during divorce. The concept of a diagnosable "Parental Alienation Syndrome" ("PAS") developed as an attempt to explain this phenomenon, but it has been widely discredited by mental health professionals and thus fails the standard for evidentiary admissibility. Nevertheless, PAS and related theories continue to influence the decisions of family courts, and even in jurisdictions that explicitly reject such theories, judges still face the daunting task of resolving these volatile cases. In the midst of this highly adversarial process, children deserve independent representation to ensure that their interests remain front and center. Mandating the appointment of guardians ad litem in cases involving allegations of abuse or alienation will assist courts in conducting individualized, fact-specific investigations into such allegations to craft custody orders that serve the best interests of children.
This article considers parts of Professor Henry Hansmann’s rationale for the existence of nonprofits. He sees no reason to distinguish donors and customers, for both in fact enter into an exchange. This article argues that the distinction between donors and customers is critical, and that the contract failure model is therefore seriously flawed. It distinguishes two types of nonprofit corporations - those structured to satisfy donors' needs ("donative nonprofits") and those structured to satisfy customers' needs ("mutual benefit nonprofits"). This dichotomy suggests a very different nonprofit corporation law than the one urged by Hansmann. Once the concept of contract failure is limited to donors, it can be refined to serve as part of the rationale for donative nonprofits. Refining the concept of contract failure reveals, however, that it confuses the analysis of mutual benefit nonprofits, which actually solve a different problem for customers and thus require a different corporate structure.This article places the discussion in context by outlining the purposes of a nonprofit corporation law, summarizes the Hansmann, or "contract failure," theory, and develops an alternative theory and contrasts it with the Hansmann thesis, considering first the donative nonprofits and then the mutual benefit nonprofits.
In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority--all of whom still sit on the Court--might overrule Glucksberg. For various reasons, however, this seems improbable. Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states. In addition, various considerations might cause a court to balk at constitutionalizing PAS for the terminally ill. Such a right is not easily cabined. If personal autonomy extends to the time and manner of one's death, why doesn't it also apply whenever a competent person believes that death is better than continued life? Once the right to PAS is grounded on self-determination or personal autonomy in controlling ones own life and death, it no longer seems plausible to limit it to the terminally ill. Why should people who have to endure pain, suffering, or indignity for a much longer time than the terminally ill (often defined as those with six months or less to live) be denied this right? The argument made by many proponents of PAS that the right to forgo medical treatment and the right to PAS are merely subcategories of the same broad right is not convincing. Most of the two million people who die every year in this country do so in hospitals and long-term care institutions and do so after a decision to forgo life-sustaining treatment has been made. If medical treatment could not be rejected, vast numbers of patients would be at the mercy of every technological advance. (For example, Nancy Cruzan could have been kept alive in her persistent vegetative state for thirty years.) Allowing a patient to die at some point is a practical condition upon the successful operation of medicine. The same can hardly be said of PAS.
With the Patient Protection and Affordable Care Act ("ACA") set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. "Consumer directed health care" proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated but market-based approach to improving efficiency in the private market for medical care that I call "relative value health insurance." This approach focuses on the "choice architecture" necessary to enable even boundedly rational patients to contract for an efficient level of health care services through their health insurance purchase decisions. It uses comparative effectiveness research, which the ACA funds at a significant level for the first time, to rate medical treatments on a scale of one to ten based on their relative value, taking into account expected costs and benefits. These relative value ratings would enable consumers to contract with insurers for different levels of medical care at different prices, reflecting different cost-quality trade-offs. The Article describes both the benefits of relative value health insurance and the impediments to its implementation. It concludes with a brief discussion of how relative value ratings could also help to rationalize expenditures on public health insurance programs.
Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against indoor tanning manufacturers and salons, and suggests ways to formulate compelling arguments in each instance. In doing so it draws on cases finding liability in the context of cigarettes, identifying similarities between the indoor tanning and cigarette industries.
In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support. If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active euthanasia and assisted suicide would diminish. These modes secure a relatively tranquil death after a maximum period of approximately 10 days lingering in an insentient state. At the same time, I contend, these lawful modes of hastening death are so akin to suicide and euthanasia as to render anomalous the present ostensible prohibitions of physician-assisted death. Perhaps it is time to acknowledge that not all forms of assisted suicide and active euthanasia are criminal and unethical. And what about Yale Kamisar's projections of abuse and distasteful extensions of voluntary medical decisionmaking? The 46 years of safe utilization of the above modes of hastening death belie the projection that PAD would ineluctably be abused. At the same time, current surrogate decisionmaking about end-of-life issues affecting now-incompetent patients tends to confirm Kamisar's predictions about extensions of PAD to the chronically afflicted (as opposed to the terminally ill) and to incompetent patients. The thesis of this paper, though, is that these extensions, rather than being alarming, are a salutary part of making death with dignity a genuine possibility for fatally stricken persons.
This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.
Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of the doctrine.
The persistent riddle of health-care policy is how to control the costs while improving the quality of care. The riddle's once promising answer--managed care--has been politically ravaged, and consumerist solutions are now winning favor. This Article examines the legal condition of the patient-as-consumer in today's health-care market. It finds that insurers bargain with some success for rates for the people they insure. The uninsured, however, must contract to pay whatever a provider charges and then are regularly charged prices that are several times insurers' prices and providers' actual costs. Perhaps because they do not understand the healthcare market, courts generally enforce these contracts. This Article proposes legal solutions to the plight of the patient-as-consumer and asks what that plight tells us about market solutions to the health-care quandary.
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined liberties that are (2) deeply rooted in tradition and history. In this Article, I explain how the ability to define accurately almost any liberty as broad or narrow improperly gives courts complete discretion to protect liberty or not as it chooses. I then describe an alternative that is suggested by the approach taken by the Court in Lawrence v. Texas: a general presumption of liberty. Not only is such an approach practical, it is also more consistent with the text and original meaning of the Constitution than is the Glucksburg Two-Step.
This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.
A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However, Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court case law, this Note argues that a "judicial act" encompasses decisions affecting the defendant's significant liberty interests. The Supreme Court case law and the mental health literature make clear that significant liberty interests are at stake in these "treatment program" decisions. Thus, delegating the "treatment program" decision to probation officers is unconstitutional under Article III. The Note concludes by suggesting a constitutionally permissible scheme whereby the judge orders a maximally intrusive treatment while giving the probation officer the discretion to choose a less restrictive program.
State laws differ, and they differ on issues of tremendous importanceto the ways that we conduct our lives. Abortion and the right todie are two issues on which state law intersects with deeply held moral convictions, and on which state laws vary. With so much hanging in the balance, it is not surprising that those who find themselves outvotedor outmaneuvered in local political processes sometimes seek alegal climate more compatible with their beliefs about human decencyand dignity. The right to "vote with one's feet" - to travel or moveto another state and trade a law one finds repugnant for a better one -is defined and circumscribed by the constitutional limitations peculiar to the conflict of laws.
A tidal wave of high drug prices has recently crashed across the U.S. economy. One of the primary culprits has been the increase in agreements by which brand-name drug manufacturers and generic firms have settled patent litigation. The framework for such agreements has been the Hatch-Waxman Act, which Congress enacted in 1984. One of the Act's goals was to provide incentives for generics to challenge brand-name patents. But brand firms have recently paid generics millions of dollars to drop their lawsuits and refrain from entering the market. These reverse-payment settlements threaten significant harm. Courts nonetheless have recently blessed them, explaining that the agreements reduce costs, increase innovation, and are reasonable based on the presumption of validity accorded to patents. Although scholars and the Federal Trade Commission have voiced strong arguments against courts' leniency, these have fallen on judicial deaf ears. In this Article, I apply the framework that the Supreme Court articulated in Verizon Communications v. Law Offices of Curtis V. Trinko, LLP, which underscored the importance in antitrust analysis of a regulatory regime addressing the challenged activity. In particular, the Hatch-Waxman Act provides Congress's views on innovation and competition in the drug industry, freeing courts from the thorny task of reconciling the patent and antitrust laws. Unfortunately, mechanisms that Congress employed to encourage patent challenges--such as an exclusivity period for the first generic to challenge validity--have been twisted into barriers preventing competition. Antitrust can play a central role in resuscitating the drafters' intentions and promoting competition. Given the Act's clear purpose to promote patent challenges, as well as the parties' aligned incentives and the severe anticompetitive potential of reverse payments, courts should treat such settlements as presumptively illegal. If the parties can demonstrate that the payments represent a reasonable assessment of litigation success, then they can rebut this presumption. If not, courts should conclude that the agreements violate the antitrust laws.
This article investigates the juridical status of the fetus. It assesses what this status should be in the light of recent developments in case law, legislation, medicine, and technology (particularly in vitro fertilization). The article is presented in 5 sections: Section 1 deals with the supreme court's landmark decision in Roe vs. Wade, which relied on biological stages of fetal development rather than philosophical determination of when life begins. Section 2 examines the historical reliance on birth as the point at which legal protection vests in the developing human. Section 3 compares fetuses with newborn children, identifying relevant similarities and differences. Section 4 studies whether the fetus at all stages of development should have the same protection (the author concludes they should not). Section 5 examines the practical implications of choosing viability as a developmental stage of special significance for legal protection.
Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects of autonomy that the Court has protected in decisions concerning family autonomy, reproductive autonomy, and autonomy to engage in sexual activity. Moreover, the government's general interest in protecting life and preventing suicide has far less force when applied to a terminally ill patient. The tragedy of Washington v. Glucksberg is that every day across the country, terminally ill patients are being forced to suffer longer and being denied an essential aspect of their autonomy and personhood.
Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This Article, written for a symposium on the tenth anniversary of Glucksberg, discusses that question. Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion writers' inability to recognize and articulate their underlying normative assumptions. More specifically, both the Justices and the lower court judges, on both sides of the issue, evidently attributed normative significance to something like a "natural course of life" (even when they denied doing so), but none were willing or able to make this attribution explicit. Part II discusses the modern separation of moral reasoning from the metaphysical or theological perspectives that might once have endowed "nature" with normative significance, and it suggests that the deficiencies in Glucksberg-Quill are evidence of how that separation renders moral reasoning problematic. The Conclusion wonders whether in this situation, a renewed emphasis on formalism or tradition might make legal reasoning less unacceptable.
This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.
In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the Due Process Clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive; and even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial and probably false assumptions about the likely goodness of traditions and the institutional incapacities of judges.
The Logic of Collective Action has for decades supplied the logic of public policy analysis. In this pioneering application of public choice theory, Mancur Olson ele gantly punctured the premise -- shared by a diverse variety of political theories -- that individuals can be expected to act consistently with the interest of the groups to which they belong. Absent externally imposed incentives, wealth-maximizing individuals, he argued, will rarely find it in their interest to contribute to goods that benefit the group as a whole, but rather will "free ride" on the contributions that other group members make. As a result, too few individuals will contribute sufficiently, and the well-being of the group will suffer. These are the assumptions that dominate public policy analysis and ultimately public policy across a host of regulatory domains -- from tax collection to environmental conservation, from street-level policing to policing of the internet.
Abstract: This Article evaluates the widely held view that American constitutional rights jurisprudence is exceptional. Its thesis is that while the conventional wisdom is largely correct about the content of a few specific constitutional rights, it is largely wrong about the more general structure of constitutional rights. The perceived exceptionalism of this structure is threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the reach of constitutional rights into the sphere of private conduct is less than elsewhere. Third, the United States rejects the types of positive constitutional rights―including social and economic rights―recognized by many other modern constitutions. Once labels and assumptions are set aside, I aim to show that on each of these structural issues, far from occupying a comparatively extreme and lone position as is generally thought, the U.S. approach is actually well within the contemporary constitutional mainstream. Finally, I explain why debunking the myth of American structural exceptionalism matters.
This paper analyses the reasons for the competitiveness of Toyota. It focuses on the company’s unique relationship with one partner supplier – Denso – where contingency loss potential is the greatest. A literature review reveals some gaps between the English and Japanese literature. The author uses resource based view literature, game theory literature, transaction cost literature and the concept of positive external economy to explain Toyota’s success. She also identifies a future research question: might Toyota’s domestic success have arisen partly because its competitors did not understand the way it worked?
In an important but thus far unnoticed development, federal courts have created a new series of "default principles" for statutory interpretation, authorizing regulatory agencies, when statutes are unclear, (a) to exempt trivial risks from regulation and thus to develop a kind of common law of "acceptable risks," (b) to take account of substitute risks created by regulation, and thus to engage in "health-health" tradeoffs, (c) to consider whether compliance with regulation is feasible, (d) to take costs into account, and (e) to engage in cost-benefit balancing, and thus to develop a kind of common law of cost-benefit analysis. These cost-benefit default principles are both legitimate and salutary, because they give rationality and sense the benefit of the doubt. At the same time, they leave many open questions. They do not say whether agencies are required, and not merely permitted, to go in the direction they indicate; they do not indicate when agencies might reasonably reject the principles; and they do not say what, specifically, will be counted as an 'acceptable' risk or a sensible form of cost-benefit analysis. Addressing the open questions, this essay urges that the principles should ordinarily be taken as mandatory, not merely permissive; that agencies may reject them in certain identifiable circumstances; and that steps should be taken toward quantitative analysis of the effects of regulation, designed to discipline the relevant inquiries. An understanding of these points should promote understanding of emerging "second generation" debates, involving not whether to adopt a presumption in favor of cost-benefit balancing, but when the presumption is rebutted, and what, in particular, cost-benefit analysis should be taken to entail.
Brown and Lawrence: One year shy of the fiftieth anniversary of Brown v. Board of Education, the justices issued another equality ruling that is also likely to become an historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This essay contrasts these two historic rulings along several dimensions, with the aim of shedding light on how Supreme Court justices decide cases and how Court decisions influence social reform movements. The six dimensions along which I compare and contrast these decisions are: (1) the ways in which both cases were hard for several of the justices; (2) how the Court decisions fit within the respective movements for social reform (i.e., was the Court playing the role of vanguard or laggard?); (3) how the respective decisions fit within the spectrum of issues involving race and sexual orientation (i.e., was the Court in Brown and Lawrence tackling issues where opinion was most likely to be with or against the Court?); (4) how and why the Court in both cases desperately evaded the marriage issue; (5) the consequences of both rulings (and, more specifically, the backlash effects they entailed); (6) the extent to which the rulings can be seen as predictions of future developments in the areas of race and sexual orientation
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