Chevronizing Foreign Relations Law

Posner, Eric A.; Sunstein, Cass R.

doi:10.2139/ssrn.901999

Cited by 18 publications

(10 citation statements)

References 86 publications

(107 reference statements)

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“…127 A final consideration applies to courts that maintain discretionary dockets: Should the action requirement by which cases are selected for appeal change when less than the full complement of judges is available? To put the point in terms applicable to the United States Supreme Court, should the "rule of four" by which certiorari is granted 128 be reduced when two Justices are recused? 129 On the one hand, allowing fewer Justices' 112 (noting Judge Coffin's observation that en banc courts "resemble a small legislature more than a court").…”

Section: B Solving the Minority Majority Problemmentioning

confidence: 99%

“…In some sense, the fact that the Supreme Court has proven more likely to review panel decisions by federal courts of appeals rather than en banc decisions, see supra note 116, is consistent with this notion. 128 See supra note 49 and accompanying text. 129 For a discussion of existing law on this point, see supra notes 53-56 and accompanying text.…”

Section: B Solving the Minority Majority Problemmentioning

confidence: 99%

See 1 more Smart Citation

The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements

Nash

2008

SSRN Journal

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Section: B Solving the Minority Majority Problemmentioning

confidence: 99%

Section: B Solving the Minority Majority Problemmentioning

confidence: 99%

The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements

Nash

2008

SSRN Journal

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“…This state function might include compensating a presently disadvantaged class for injustice in a past generation. 128 Otherwise, a minimalist state is the norm.…”

Section: Libertarianmentioning

confidence: 99%

What Good Is the Social Model of Disability?

Samaha¹

2007

The University of Chicago Law Review

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Although the social model is one way to define disability and a field of inquiry, it is not a disability policy. Deciding how to respond to "disability" in law and culture depends on a normative framework that cannot be supplied by the model. This framework might be analytical skills often become unhinged without a defensible normative goal. There is no way to set priorities, make unavoidable tradeoffs, or confront cost issues without a normative orientation; even legal formalists must admit this. Second, because of the gap between causation and policy, the stakes are lower for recognizing social forces in human disadvantage. Accepting a degree of social construction is not the end of a policy discussion and so it should be neither shocking nor frightening. It might be intellectually liberating. Third, the argument applies to all social construction observations, including those related to gender, race, sexual orientation, class, deviance, and law itself. For all of them, causation is separable from policy prescription. In fact the argument applies to all causation observations. None determine just outcomes. This is not to dismiss efforts to untangle causal forces in human affairs. The social model of disability, for its part, has been a source of revelation and inspiration for action. It can dispel uncritical assumptions that disadvantage is natural and necessary, which is no small feat. But we ought to know precisely what the model can and cannot accomplish.11 Then more can be done. We might achieve a sophisticated picture of the model's interaction with general normative frameworks, without relying on membership in the disability rights movement to do the work of argument.There is another oversight in the scholarship but this weakness underestimates the social model's implications. When the model is doing work within a normative framework, its insight can suggest a class of decisionmakers different from the class other perspectives suggest. This insight might require expertise in addition to or other than medical knowledge. In a way, disability rights advocates who constructed the social model were pointing toward this conclusion all along. Yet the connection between the model and institutional design, however mediated, has not been recognized in the law literature.Part I of this Article describes the social model of disability and some of its weaknesses. The model identifies a subset of all disadvantage related to physical or mental traits. Critics believe that this subset is small or that the model neglects 11 There is a connection here to the legal realists, who broke down the notion that prevailing forms of property and contract law were the natural order-but who were then willing to announce that the merits were open for debate. See below text accompanying notes 103-104. environment. For others, the causal picture is not so tilted. Moreover, those who use the label "social model" might embed implicit normative premises within the term, and they might believe a disabling environment is more easily or jus...

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“…Both of these mechanisms result in apportioning all corporate income to a state with the jurisdiction to tax it. 128 However, under the throw out mechanism, the nonjurisdictional "taxes" are spread among all jurisdictional states in proportion to their share of the factor, while under the throw back mechanism, only the state of origin (or domicile) picks up additional revenue from the factors located in nonjurisdictional states.…”

Section: Sales and Gross Receiptsmentioning

confidence: 99%

“…at 666-67. 128 Under the throw out mechanism, $80 million of $80 million in recognized sales will be apportioned among the taxing states. Under the throw back mechanism, $100 million in sales will be apportioned among states with taxing jurisdiction.…”

Section: Jurisdictionmentioning

confidence: 99%