Volume 113, Issue 7, May 2004
Friday, 30 April 2004
113 Yale L.J. 1341 (2004)
The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain interwar theorists, like Carl Schmitt, the apparent demise of the legislature was not the consequence of an "insurmountable" opposition between parliamentary democracy and the demands of executive power in an era of administrative governance. Rather, for both Germany and France, the constitutional flaw was traceable to a basic tenet of traditional republicanism inherited from the nineteenth century. This view held that a republican parliament, as the privileged institutional expression of national sovereignty, necessarily possessed plenary authority to allocate power among the branches as it alone deemed expedient in the circumstances. In the interwar period, the German and French parliaments repeatedly relied on this notion to cede full powers to the executive, a practice that ultimately provided the legal foundation for dictatorship.
After 1945, the drafters of the West German and French postwar constitutions gleaned two lessons from the interwar experience: first, that there had to be a substantive "reserve" of governing authority that a republican parliament could not delegate; and second, that an independent body had to have power to enforce those delegation constraints against the parliament itself. Although such constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters concluded that they were necessary to ensure the place of the parliament in a democratic system of separation of powers. The development of enforceable, yet flexible, delegation constraints in postwar West Germany and France thus marked an important constitutional innovation; it was not a doctrinal relic from the eighteenth or nineteenth centuries, as commentators often suppose when focusing solely on the American case. Moreover, such constraints suggested a key role for parliaments and courts in legitimizing executive and administrative action--a function consolidated in law, however, only after a period of significant historical struggle which paradoxically required the weakening of elected legislatures (through delegation constraints) in order to strengthen them.
Friday, 30 April 2004
113 Yale L.J. 1417 (2004)
Promises and contracts establish relations among the persons who engage them, and these relations lie at the center of persons' moral and legal experience of one another. But the most prominent accounts of these practices nevertheless remain firmly individualistic, seeking to explain the obligations that such agreements involve in terms of one or another service that they render to the parties to them taken severally. This Article articulates a new theory of the philosophical foundations of promise and contract that reclaims for practical philosophy the relations among persons that promises and contracts create and that the dominant, individualistic accounts obscure.
The Article proposes that promises and contracts establish relations of recognition and respect--and indeed a kind of community--among those who participate in them and explains the morality of promise and contract in terms of the value of this relation. Although the Article takes up promise quite generally, and proposes new solutions to familiar philosophical problems concerning the will's place among the grounds of promissory obligation, the Article emphasizes the particular case of contract, which it addresses in much greater detail. The Article argues that contract participates in the ideal of respectful community even though contracts typically arise among self-interested parties who aim to appropriate as much of the value that the contracts create as they can. The Article finds the peculiarly contractual variety of community directly in the form of the contract relation rather than in any substantive ends that the parties to contracts pursue. It presents a detailed account of the characteristic intentions that this form of community, which it calls collaboration, involves.
The Article also emphasizes that contractual collaboration is no mere academic conceit but instead arises in actual legal practice. In particular, it considers two familiar doctrinal puzzles presented by the law of contracts--involving the consideration doctrine and the expectation remedy--in light of the collaborative values that it finds in the contract relation. It argues that the collaborative theory of contract underwrites a more satisfactory account of these doctrines than has so far been available.
Finally, the Article concludes by suggesting that the collaborative ideal makes it possible to return contract, understood as a distinctive category of legal obligation, to the center of our legal system and to connect contract to broader principles that lie at the foundations of modern, pluralist, economic and political institutions. In addition to the legal theory of contract, the Article therefore also contributes to the political theory of the market and indeed of liberalism.
Throughout the analysis, the Article applies a philosophical methodology that avoids casuistry, favoring an effort to elaborate the moral meanings of existing legal institutions and practices, and thus to reveal the moral relationships that are immanent in the law. This approach promises to connect moral philosophy to legal doctrine in a way that casuistic analysis cannot.
Friday, 30 April 2004
113 Yale L.J. 1579 (2004)
When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all levels of the organization. They must ensure that women hold positions of authority, supporting them if they are undermined from above or below. When full integration is not possible (as in fields where there are few women in the labor pool), employers must ensure that the women hired are protected from loyalty tests or intentional comparisons to other women that lead to dissociation. Yet responsibility for eradicating workplace segregation lies not only with employers, but with federal courts as well: Female-on-female sexual harassment demands redress under Title VII.
Critics may question why Title VII, and harassment law more specifically, should be used to address female-on-female hostility-based harassment. The answer is twofold: Such harassment falls squarely within the scope of Title VII, and its coverage remains true to the statute's purpose of eradicating barriers to advancement for women and minorities. As detailed earlier, the sexual harassment hostile work environment cause of action now covers all sex-based harassment that satisfies the required elements. It has developed to cover behaviors that were not originally envisaged by the drafters of the statute, including same-sex harassment. In the aftermath of Oncale, there is little doubt that hostility-based sex harassment among women would be actionable under Title VII.
However, hostile work environment claims should be used against female-on-female hostility not just because they can be, but because doing so helps achieve the original purpose of Title VII. Title VII was created with the intention of reducing segregation and eliminating the barriers that stand in the way of women and minority success in the workplace. Female-on-female hostility-based harassment both results from and perpetuates sex segregation and limited opportunities for women in the workplace. Thus, to the extent that employers structure the workplace in ways that give female employees incentives to compete with and undermine each other, they should be held responsible for violating the mandates of Title VII.
Some may argue that Title VII's prohibition of discrimination based on sex was meant to address male supremacy, and that a recognition of female-on-female harassment would be a significant departure from Title VII's goal. However, legal recognition of female-on-female sex harassment does work to combat male supremacy in the workplace. As explained throughout this Note, the exclusion of women from male-dominated jobs and from positions of authority creates hostile relations among women in the workplace. Holding employers liable for the dynamics that they have created among women shifts the focus back to segregation, and thus creates additional incentives for employers to integrate their workplaces and empower female workers.
Others may fear that liability will lead employers to regulate female relationships and potentially overdiscipline women workers. Some may even worry that if women do opportunistically undermine each other, recognition of female-on-female harassment will simply give them another tool with which to do so: the ability to "run to daddy" and complain about other women to their bosses. Yet all harassment claims carry the potential for abuse; the fear of unfounded accusations or overexuberant enforcement should not deter courts from extending protection to those deserving of it. A woman experiencing discrimination because of her sex should not remain without recourse merely because the person harassing her is also female. Discrimination based on sex is prohibited by Title VII, and so long as a woman can prove the elements necessary for a successful hostile work environment claim, she should have a cause of action. It would be a welcome change for employers to regulate hostile behaviors among women when many currently refuse to intervene in behaviors "between girls."
Women should not have to constantly tiptoe around each other. Instead, they should be aware of the factors that encourage them to compete with each other, recognizing that they can help each other advance and that the success of one can lead to the success of another. With healthy competition, women can push each other to do their best, supporting each other in the face of conditions that would have others thinking that it's every man for himself.
Friday, 30 April 2004
113 Yale L.J. 1623 (2004)
The courts and Congress have left sacred sites protection in the hands of land management agencies, and although many feared this decision would be disastrous, land agencies have actually embraced their role and sought to accommodate Indian religions and protect their sacred sites. Furthermore, agency accommodation is actually better for society as a whole than the broader judicial and legislative protections typically advocated by sacred sites supporters. Agency accommodation avoids the disadvantages of broad categorical protection while still serving as a strong method for preserving sacred sites. Although land agencies have had the role of sacred sites protectors thrust upon them, they seem to have turned out to be ideally suited for the job.