Showing papers in "Harvard Law Review in 1985"

The evidence or the event? on judicial proof and the acceptability of verdicts

Abstract: Many decision-theory modes suggest that factfinders should base their decisions on the laws of probability in order to minimize the costs of erroneous judicial decisions. These models ignore the judicial function of generating acceptable verdicts which reflect and project substantive legal rules.... A court must generate an acceptable account of what actually happened as a predicate to imposing a sanction for violation of a substantive legal rule.... Many procedural and structural mechanisms of the legal system serve to enhance the acceptability of judicial verdicts.... The goal of generating acceptable verdicts is not met simply by choosing the verdict that is most probably accurate. Acceptable verdicts and probable verdicts might appear to coincide, given that one obvious way to gain public acceptance is to search for truth. But the correlation between probability and acceptability is not exact: a probable verdict may not be acceptable, and an acceptable verdict may not be probable.

The Original Understanding of Original Intent

Abstract: When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.

Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner

Abstract: In "The Ethical and Political Basis of Wealth Maximization" and two related articles, Professor (now Judge) Richard Posner argues that widely shared pro-autonomy moral values are furthered by wealth-maximizing market transfers, judicial decisions, and legal institutions advocated by members of the "law and economics" school of legal theory. Such transactions, decisions, and institutions are morally attractive, Posner argues, because they support autonomy; wealth-maximizing transfers are those to which all affected parties have given their consent. This Article argues that Posner's attempt to defend wealth-maximization on principles of consent rests on a simplistic and false psychological theory of human motivation. Posner's argument depends on both an explicit assumption that the presence of consent, without more, satisfies the requirements of an ideal of autonomy and on an implicit assumption that people consent to changes in their world in order to improve their well-being. Through a series of contrasts, I will argue that Franz Kafka's fictional works on the nature of law dramatize a dark underside of Posner's argument that the fact of consent morally legitimates our legal, social, and personal worlds. In Kafka's fictional and horrific world, as in Posner's theoretical and ideal one, victim, aggressor, and community all regard this consent as validating an otherwise unappealing state of affairs. Consent insulates these situations from moral criticism and renders them, without more, morally attractive. Kafka's fictional world thus provides a dramatic enactment of Posner's moral claim: Posner argues that consent morally legitimates all; Kafka illustrates what a world so legitimated might look and feel like. In both worlds, good and evil, and right and wrong, lose all meaning when all that matters is whether and to what extent people get exactly what they think they want.

Toward Undistorted Choice and Equal Treatment in Corporate Takeovers

Abstract: This paper proposes two objectives - undistorted choice and equal treatment - for the legal rules governing corporate acquisitions in general, and corporate takeovers in particular. Undistorted choice is essential to the efficient operation of the market for corporate assets and that equal treatment is suggested by both efficiency and fairness considerations. Current takeover rules, I argue, lead to distorted choice and unequal treatment. I therefore put forward a set of rules that would ensure undistorted choice and equal treatment in corporate takeovers without creating any significant efficiency costs. Although the analysis focuses on takeovers, it also considers the legal rules that should govern other methods of corporate acquisition.

The Politics of Reconstruction

Abstract: Directions for all Groups: It is the winter of 1865 and, as Union victory in the Civil War looks ever more likely, thoughts begin to turn to the aftermath of war. President Abraham Lincoln and some outspoken members of Congress are embroiled in a heated exchange over which branch of government will direct Reconstruction efforts. Beyond the separation of powers question, there is also disagreement between Lincoln and Congress about the character of Reconstruction efforts. Lincoln favors a lenient but cautious plan for the South. Moreover, he insists that the plan should not compromise the integrity or the authority of the Constitution. The ardent anti-slavery element in Congress—known as the “Radical Republicans”—favors harsher treatment for the South and immediate changes to initiate full citizenship and civil rights for freed slaves. They often disagree with Lincoln’s understanding of Constitutional powers. While Lincoln did support broad respect for the rights of freedmen, he differed with the Radicals about how best to secure these rights while still maintaining respect for the Constitution and laws.

The abortion funding conundrum: inalienable rights, affirmative duties, and the dilemma of dependence.

Abstract: In the American Constitutional system rights tend to be individual alienable and negative--such rights belong to persons as individuals; they are subject to alienation by those persons; and they impose on the government a duty to refrain from certain injurious actions. The right of a woman to terminate her pregnancy sheds light on these 3 areas. Although a womans right to terminate a pregnancy was recognized in Roe v. Wade by failing to make abortion free of charge the government requires women to make affirmative use of their bodies for childbearing. In Harris v. McRae the Supreme Court indicated that the government is free to leave poor women to finance abortions without public assistance. A simultaneous decision was made to provide governmental funding for the necessary medical expenses involved in childbirth. Justice Brennan described this as a "deliberate effort to discourage the exercise of a constitutionally protected right." As a result women are forced to sacrifice their liberty and their labor. It is difficult to justify the governments decision not to fund impecunious womens choice of abortion if the right to terminate an unwanted pregnancy is viewed as an inalienable right. The governments affirmative duties are arguably owed to the fetus who can be considered a holder of 5th and 14th amendment rights. Any such right to life cannot be deemed alienable by the unborn. This suggests that the government bears an affirmative duty to protect the interests of the fetus to the extent that it may do so without coercing involuntary pregnancy.

Method, Result, and Authority: A Reply

Abstract: A LL good things are scarce. Self-interested conduct is the handmaiden of scarcity. These are facts of life. Given scarcity, judicial decisions inevitably create, transfer, or destroy valuable things and affect people's decisions. Even justice is scarce. Disputes about attorneys' fees stem from the high costs of litigation, and rules about harmless error grow out of the costs of retrials (including the delay other litigants encounter when one case receives extra process). Judges must respond to scarcity. The effects of a court's decision on who gets how much of what good things may or may not be what the judges anticipated. Private and public responses to the decision may or may not undercut what the judges sought to achieve. The foundation of my Foreword1 is the belief that knowledge of potential effects and responses is preferable to ignorance. The Foreword contains three principal normative propositions: