Surrogate Decision-Making Standards for Guardians: Theory and Reality

This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians

The Mobility Case for Regionalism

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration

The Mobility Case for Regionalism

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden. This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration

In Defense of Deference

Uppsatsens syfte är att undersöka hur skapande människor beskriver inspiration i sina skapandeprocesser genom att analysera texter skrivna utav fem olika skapande människor själva. Birger Gerhardsson (2014) har skrivit i Nationalencyklopedin att inspiration är ett andligt fenomen som övergår människans förmåga. Vidare i uppsatsen beskrivs den tidigare forskning och teori som funnits inom inspiration och kreativitet. Metoden som använts är textanalys och det för att kunna analysera vad det är författarna verkligen menar. Uppsatsen tar även upp kreativitet i relation till inspiration då de är två begrepp som relaterar till varandra. I resultatanalysen har Helene Billgren (2011) skrivit om hur hon kan titta på klippdockor för att hitta inspiration medan flera av de andra författarna inte har skrivit om inspiration med just det begreppet utan har skrivit mer om sina skapandeprocesser på ett sätt som går att tolka som inspiration. I summeringen av resultatanalysen beskrivs kortfattat vad uppsatsens resultat är, bland annat att det finns många olika sätt att beskriva inspiration och att alla beskrivningar kommer ifrån olika utgångspunkter. Diskussionsdelen diskuterar och argumenterar kring varför valet av metod var bra, hur frågeställningen blev besvarad och hur en vidare forskning på ämnet inspiration skulle kunna se ut

Constraint through Delegation: The Case of Executive Control over Immigration Policy

This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law\u27s core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set visa policy-an avenue increasingly contemplated by reformers. Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime\u27s dysfunction, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel that is helpful in thinking through what it would mean to delegate ex ante admissions power to the executive

Good Faith Discrimination

The Supreme Court\u27s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court\u27s racial jurisprudence stem from the Court\u27s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination

Tax Fairness

This Article argues that, contrary to the consensus of economists and many legal scholars, the norm of horizontal equity in taxation has independent meaning as a default rule in favor of existing arrangements. Although it has long been said, and widely thought, that tax should be fair in its dealings with individuals who are situated similarly to one another, no one has been able to say convincingly just what that fairness comprises. As a result, the learned referees in the last major dispute over the significance of horizontal equity judged that fairness\u27s critic had decidedly won the day. Since then, there have been ever more critics, but no cogent, comprehensive defense. My defense is both theoretical and practical. First, I argue that horizontal equity is a special aspect of the revenue function in taxation. Because it enshrines the status quo before enactment of a new tax law, horizontal equity can be reconceived as a commitment by the authors of tax legislation to honor the past and future policy choices of others, with whom they are jointly engaged in a project of deliberative democracy. Alternately, horizontal equity may bejustfied by welfare gains from a shared agreement to leave certain controversial questions of distributive justice undecided during the revenue-raisingp rocess. Both oft hese rationalesl eave open-indeed,t hey clear the air for-arguments about the ultimate ends law, and tax law in particular, should serve in society