Class Jurisprudes: Free Labor Ideology and For‐Profit Penal Labor in Gilded Age Courts

For‐profit penal servitude flourished in Gilded Age America. Prisoners produced consumer goods inside factory‐penitentiaries for private enterprise. Regulations protecting free labor encountered litigation by businesses invested in carceral capitalism. Judges who defended “liberty of contract,” maintained “state neutrality,” and condemned “class legislation” exhibited a different approach when evaluating labeling laws. Such statutes were seemingly consonant with the free labor ideology that dominated appellate benches—they remediated markets distorted by state‐created privileges. Yet courts routinely struck them down. This article argues that judges were motivated by a class‐infused framework structuring interpretation of facts and aliening lower‐class Americans. Judges perceived workingmen who sought remedial assistance as seeking class legislation; they saw prison inmates and products as ordinary workers and goods, not as captive manpower and state‐subsidized wares. Jurisprudence bent and bowed from judges’ values and associations. This article thus reintroduces the explanatory power of class to the Lochner era through judicial subjectivity.     

Are the similarities between a woman's right to choose an abortion and the alleged right to assisted suicide really compelling?

In this Article, Marc Spindelman examines the relationship between abortion and assisted suicide. He begins his discussion with the constitutional framework within which courts should consider the assertion that the Due Process Clause of the Fourteenth Amendment protects the individual's decision to commit assisted suicide. The Author then considers and, based on relevant Supreme Court doctrine, rejects the conception of personal autonomy that undergirds the claimed constitutional right to assisted suicide. Finally, the Author points out some legal and cultural distinctions between abortion and assisted suicide, arguing that these distinctions offer courts good reasons for holding that the Fourteenth Amendment's promise of liberty does not include the liberty to commit assisted suicide. In addition, the Author makes a few observations about recent assisted-suicide cases decided by the Ninth and Second Circuits.     

Less Democracy, More Courts: A Puzzle of Judicial Review in Russia

This article explores why, throughout the 1990s, some Russian regions created their own constitutional courts and others did not. Contrary to current theories that assert that politicians create a strong and independent judiciary to protect them from the tyranny of election-winners in the context of political uncertainty, my analysis finds that constitutional courts emerged only in those regions where governors virtually guaranteed their re-election by consolidating their political power vis-à-vis federal and local governments. The article argues that both federal and regional politicians used the process of creating subnational constitutional courts to legitimize their federalism and judicial reforms. The changes in the balance of power between those governors, who aspired to have their own judicial system, and the federal government that insisted on a single federal judicial system, determined the variation in the process of court-building across Russian regions.     

论法院对基本权利的保护

为公民基本权利提供保护,是现代国家合法性的重要来源。普通法院在基本权利保护中发挥着重要作用。德国虽然设立了宪法法院,但保护公民基本权利的职责仍主要由其他法院承担。在没有设立宪法法院的国家,通过普通法院更是为基本权利提供司法保护的唯一途径。我国法院应当通过三种方式为基本权利提供司法保护:如果法律有保护基本权利的具体规定,法院应当直接适用法律;如果法律对基本权利的保护只作了抽象规定,法院应当对有关抽象立法进行合宪解释之后予以适用;如果法律没有作出保护基本权利的任何规定,法院可以直接适用宪法的基本权利条款。     

Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts

Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to "take the Constitution away from the courts" in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation-based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.     

State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.     

Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic

Abstract.   Judicial review ( richterliches Prüfungsrecht ), administrative review ( Verwaltungsgerichtbarkeit ), and constitutional review ( Verfassungsgerichtsbarkeit ) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the U.S. Supreme Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned.     

LEGAL IMPLEMENTATION OF PARENT EDUCATION PROGRAMS FOR DIVORCING AND SEPARATING PARENTS

This article traces the legislation permitting or mandating the use of parent education for divorcing and separating parents in state courts. Explored are State mandatory and discretionary programs, local court rules, voluntary programs, and some of the constitutional issues that are raised.     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

劳动、政治承认与国家伦理——对我国《宪法》劳动权规范的一种阐释

西方理论阐述宪法上的劳动权属性,多采自由权与社会权两端。然而,理解我国现行《宪法》的劳动权性质及其内涵,则不能简单套用西方既有学说,需要从宪法文本的规范体系出发、运用宪法解释学的方法才能清楚获得。同时,要真切理解劳动权在我国宪法上的性质,还必须具有宪法的"历史意识",仔细分析劳动权在不同阶段文本中的功能流变。现行《宪法》中的劳动权规范既是一种保障私权的权利规范,也是蕴含社会主义国家的国家伦理的重要承认规范。     

Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

Is state power to protect health compatible with substantive due process rights?

Public health laws may mandate drastic limitations on individual liberty, such as forced medication and quarantine. This results in a tension between public health laws and guarantees of liberty such as the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court has resolved this tension in favor of one or the other of these legal principles, depending on the facts and issues involved. Nevertheless, Supreme Court jurisprudence is internally consistent. The Court has applied a level of scrutiny that, while rigorous, is more flexible than strict scrutiny. I denote this as "enhanced public health scrutiny." Applying this scrutiny, the Court will uphold public health legislation if it protects an inchoate class of people who may not yet be identifiable, who will incur a specific disease or injury absent the law, but who will not experience this disease or injury if the law is enforced. If this doctrine were explicit, it would constitute a clear guideline to courts seeking to balance health and liberty concerns. This guideline would be consistent with current case law, and would not impact on law affecting reproductive liberty.     

PREVENTING JUDICIALLY MANDATED ORPHANS

The courts intrude into the sancity of family relationships too often, especially with respect to impoverished families. Many circumtances found in such families, including economic factors, employment, and drug and alcohol abuse, are prevalent in poor communities. Instead of stripping children from their parents, the courts should aid families by targeting common problems and helping to preserve the parent-child relationship. This article focuses on the conflicting interests comprising the child protective system, some federal and state child welfare legislation, the idea of increasing the standard of proof in termination Not only is that proceedings, and the constitutionality of relecant legislation and its implementation. Not only is that legislation unconstitutional, but it is unfair to impovershed families, and not completely ineffective at reaching its goal.     

德国法院体系探析

德国特色法院体系的形成与演变有其深刻的社会历史背景,首先是文化传统,其次是经济体制,第三是工人运动。德国的法院系统由宪法法院、普通法院和专门法院三类组成。宪法法院专门审理违宪案件;普通法院只审理刑事案件和民事案件;专门法院包括(普通)行政法院、财政法院、劳动法院、社会法院、专利法院、军事法院和惩戒法院等。除了(普通)法院和宪法法院具有独立地位外,其他法院均隶属于政府有关部门。德国行政审判权由各级行政法院与劳动法院、社会法院、财政法院等共同行使。专门法院的性质介于行政机关与司法机关之间,但行政机关的性质更多(本质上属于行政司法)。     

美国服刑人员诉诸司法之权利的宪法保护研究——以美国宪法判例为对象

在美国,服刑人员诉诸司法之权利是一项受宪法保护的基本权利。这一权利的基本权利性质并非来自于宪法文本的明文规定,而是由宪法判例加以确认的。从服刑人员诉诸司法之权利领域的案例法发展历程来看,美国联邦最高法院的司法判断决定了服刑人员诉诸司法之权利受到保护的层次、程度和范围,其中1977年的邦德斯案具有里程碑意义。虽然立法和行政对这一案例法的发展状况也产生了一定影响,但司法的独特功能是实现对服刑人员诉诸司法之权利进行宪法保护的根本保障。     

Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia

This article explores the relationship between legal consciousness and legal mobilization in the context of constitutional rights in Colombia. Citizens report extremely low confidence in the state and the judiciary, yet hundreds of thousands of Colombians make constitutional rights claims through the acción de tutela procedure each year. Why does profound skepticism of the ability of the judiciary to provide justice and fair treatment seem to coexist with high levels of use of the legal system? How do perspectives on rights and the legal system relate to observed mobilization of the law? Drawing on 74 interviews and an original 310‐person survey, this article develops legal consciousness theory, identifying the specific beliefs that encourage or discourage individuals to turn to the courts to make claims to their rights. In the Colombian case, understandings of law and the state encourage the use of the tutela procedure, not due to the realizable promise of the state to protect rights or the majestic power of the law, but because the tutela is understood to be the only mechanism through which citizens can access their rights. In other words, citizens turn to the courts because there is no other alternative.     

民事诉讼中法院的法律观点指出义务:法理、规则与判例——以德国民事诉讼为中心的考察

大陆法系各国的民事诉讼将法院对法律适用的释明称为法律观点指出义务,其与对事实的释明一道构成法院"实体性诉讼指挥"的核心。在德国,法律观点指出义务的立法化是落实宪法规定的听审请求权,避免突袭性裁判的需要。它要求在诉讼过程中,法院应就法律适用与当事人进行讨论,指出当事人在辩论中未提出的,而法院可能作为裁判基础的法律观点,并赋予当事人表明意见的机会。违反法律观点指出义务构成程序瑕疵,当事人可通过上诉、提起宪法诉讼以及提出异议等救济手段维护其程序权利。法律观点指出义务为当事人提供了对法院的法律判断权施加影响的机会,保障了当事人在法律适用领域中的程序参与权,值得我国借鉴。     

司法确定力的形成逻辑

司法确定力是与法院的宪法地位密切相关的,宪法对法院的独立地位以及解决纠纷、救济权利和发展法律的功能定位,是司法确定力的权威渊源;司法确定力来自于司法的管辖权威,法院在法律规定的范围内、在自己的能力范围内受理案件,运用法律知识、司法理性和司法经验,按照司法规律对案件事实和法律适用问题进行权威判断,为司法确定力提供了前提;司法确定力源于司法的整合权威,法院在审理案件过程中,通过对立法时的民意与法律适用时的民意、普遍正义与个别正义、法律正义与社会正义的有机结合建构了司法的整合权威,为司法确定力提供坚实的基础;司法确定力依赖于裁判的执行权威,当事人自觉履行生效判决的文化意识和国家强制执行生效判决的权威能量为司法确定力提供坚强的保障。     

论我国宪法劳动权的理论建构

目前,法学界对于劳动权的研究大多是从劳动法的角度展开的,从宪法角度所进行的劳动权研究大多也是在用我国劳动法第3条的内容解读我国宪法第42条劳动权的含义,陷入了"以劳动法解释宪法"的方法论误区。笔者认为,对于宪法劳动权的理论建构,应当立基于"以宪法解释宪法"的原则上,从宪法文本以及宪法变迁中探求宪法劳动权的内涵。自1954年宪法以来的几部宪法文本中,我国宪法劳动权的规范表述形式并没有明显的改变,但是,改革开放以来的宪法变迁,主要是所有制结构改革和社会主义市场经济体制的确立,却赋予宪法劳动权和劳动的概念以全新的含义,并使职业自由成为我国宪法劳动权存在和运行的主要形态。     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.