This article proposes and explores an analogy between Copernican astronomy and American health care. The transformation in scientific thought that led scholars to reject the geocentric (earth-centered) model of the known universe that had prevailed since ancient times in favor of a heliocentric (sun-centered) model is an apt metaphor for attempts to harmonize the incompletely theorized blend of competition and regulation that characterizes the contemporary health care system. One can analogize pre-competitive, physician-centered conceptions of health care to "Ptolemaic" models that would eventually be superseded by a "Copernican" health system centered on consumers as economic actors. Without a doubt, antitrust law played a significant role in this reconceptualization of medical markets, and in dismantling explicit barriers to price competition, but traditional antitrust law has significant trouble accommodating non-price considerations such as quality, choice, and innovation. Underlying a Copernican view of antitrust law is the desire to construct an integrated competition policy for health care markets. Therefore, a Copernican view requires both rethinking the application of antitrust principles in their traditional domain and revisualizing the relationship between antitrust law and other forms of public and self-regulation. This article examines a range of traditional market failures and subjects of longstanding antitrust concern - issues of agency, asymmetric information, choice and standardization, and the state action doctrine - as well as topics that go beyond traditional market failures -- public purchasing, medical knowledge, technology and political action, and problems relating to insurance, access to health services and social welfare. In conducting this analysis, we conceive of these phenomena as existing within a complicated web of social relations, with private and public actors facing each other across a dynamic interface, not a discrete boundary separating "market" and "nonmarket" institutions.
{"title":"A Copernican View of Health Care Antitrust","authors":"W. Sage, P. Hammer","doi":"10.2307/1192285","DOIUrl":"https://doi.org/10.2307/1192285","url":null,"abstract":"This article proposes and explores an analogy between Copernican astronomy and American health care. The transformation in scientific thought that led scholars to reject the geocentric (earth-centered) model of the known universe that had prevailed since ancient times in favor of a heliocentric (sun-centered) model is an apt metaphor for attempts to harmonize the incompletely theorized blend of competition and regulation that characterizes the contemporary health care system. One can analogize pre-competitive, physician-centered conceptions of health care to \"Ptolemaic\" models that would eventually be superseded by a \"Copernican\" health system centered on consumers as economic actors. Without a doubt, antitrust law played a significant role in this reconceptualization of medical markets, and in dismantling explicit barriers to price competition, but traditional antitrust law has significant trouble accommodating non-price considerations such as quality, choice, and innovation. Underlying a Copernican view of antitrust law is the desire to construct an integrated competition policy for health care markets. Therefore, a Copernican view requires both rethinking the application of antitrust principles in their traditional domain and revisualizing the relationship between antitrust law and other forms of public and self-regulation. This article examines a range of traditional market failures and subjects of longstanding antitrust concern - issues of agency, asymmetric information, choice and standardization, and the state action doctrine - as well as topics that go beyond traditional market failures -- public purchasing, medical knowledge, technology and political action, and problems relating to insurance, access to health services and social welfare. In conducting this analysis, we conceive of these phenomena as existing within a complicated web of social relations, with private and public actors facing each other across a dynamic interface, not a discrete boundary separating \"market\" and \"nonmarket\" institutions.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"6 1","pages":"241-290"},"PeriodicalIF":0.0,"publicationDate":"2002-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86745189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION A. Background In December 2000, the European heads of government, meeting in Nice, took several momentous steps in the constitutional development of the European Union ("E.U."). Chief among them was the creation of a Charter of Fundamental Rights, a strikingly broad catalogue of individual rights and freedoms drawn from both the civil and political, and economic and social rights traditions. (1) Consensus on the Charter's substantive guarantee was overshadowed by contention over its status in the E.U. legal order. In a compromise emblematic of European decision-making, the member states (2) adopted the Charter but left open the crucial issue of enforcement. Thus, for the time being, the Charter is no more than a non-binding declaration that copperfastens the E.U.'s existing commitment to human rights, as expressed in various treaty provisions and legislative measures, (3) and, above all, in the vibrant unenumerated rights tradition of the European Court of Justice. (4) Potentially, the Nice Summit will mark a major milepos t on the road to a European bill of rights. Assuming the member states ultimately enact remedial measures, including judicial protection, the transition may prove no less influential than the adoption of the Bill of Rights in the United States. In the immediate term, however, the Nice Summit will be remembered for a separate order of business, namely, the latest major revision to the various instruments comprising the Constitution of the Union. (5) The Treaty of Nice, (6) which will enter into force following ratification by each of the member states, (7) is designed to prepare the principal branches of government for enlargement to the east, which, according to current projections, could extend the membership from fifteen to twenty-seven states or more. In keeping with prior practice, the task of negotiating and finalizing the necessary amendments was entrusted to an intergovernmental conference ("IGC 2000") made up of representatives of the member states. IGC 2000's central focus was reform of the political institutions, notably the Commission and the Council. (8) The European Community courts were a less conspicuous but ultimately no less important item on the agenda. (9) Projected changes to the judicial branch were inspired not only by the prospect of enlargement, but also by an urgent need to remedy overburdened dockets and inefficiencies in the administration of justice. In Luxembourg, the seat of the Community courts, the problem of docket control is by no means new. For several years, the Court of Justice has been waging a losing battle to keep pace with the organic growth of Community litigation. A Court of First Instance ("CFI"), created in 1989, has played its part in alleviating caseload pressures. (10) The benefit of this additional Community forum has been offset by several factors: the exponential growth of Community legislation, the accession of new member states, and the extension of Community c
{"title":"The Treaty of Nice: Arming the Courts to Defend a European Bill of Rights?","authors":"L. Heffernan","doi":"10.2307/1192243","DOIUrl":"https://doi.org/10.2307/1192243","url":null,"abstract":"I INTRODUCTION A. Background In December 2000, the European heads of government, meeting in Nice, took several momentous steps in the constitutional development of the European Union (\"E.U.\"). Chief among them was the creation of a Charter of Fundamental Rights, a strikingly broad catalogue of individual rights and freedoms drawn from both the civil and political, and economic and social rights traditions. (1) Consensus on the Charter's substantive guarantee was overshadowed by contention over its status in the E.U. legal order. In a compromise emblematic of European decision-making, the member states (2) adopted the Charter but left open the crucial issue of enforcement. Thus, for the time being, the Charter is no more than a non-binding declaration that copperfastens the E.U.'s existing commitment to human rights, as expressed in various treaty provisions and legislative measures, (3) and, above all, in the vibrant unenumerated rights tradition of the European Court of Justice. (4) Potentially, the Nice Summit will mark a major milepos t on the road to a European bill of rights. Assuming the member states ultimately enact remedial measures, including judicial protection, the transition may prove no less influential than the adoption of the Bill of Rights in the United States. In the immediate term, however, the Nice Summit will be remembered for a separate order of business, namely, the latest major revision to the various instruments comprising the Constitution of the Union. (5) The Treaty of Nice, (6) which will enter into force following ratification by each of the member states, (7) is designed to prepare the principal branches of government for enlargement to the east, which, according to current projections, could extend the membership from fifteen to twenty-seven states or more. In keeping with prior practice, the task of negotiating and finalizing the necessary amendments was entrusted to an intergovernmental conference (\"IGC 2000\") made up of representatives of the member states. IGC 2000's central focus was reform of the political institutions, notably the Commission and the Council. (8) The European Community courts were a less conspicuous but ultimately no less important item on the agenda. (9) Projected changes to the judicial branch were inspired not only by the prospect of enlargement, but also by an urgent need to remedy overburdened dockets and inefficiencies in the administration of justice. In Luxembourg, the seat of the Community courts, the problem of docket control is by no means new. For several years, the Court of Justice has been waging a losing battle to keep pace with the organic growth of Community litigation. A Court of First Instance (\"CFI\"), created in 1989, has played its part in alleviating caseload pressures. (10) The benefit of this additional Community forum has been offset by several factors: the exponential growth of Community legislation, the accession of new member states, and the extension of Community c","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"7 1","pages":"189-222"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73332185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION Only in recent years (1) have those opposed to the individual rights interpretation of the Second Amendment, which one of us dubbed the "Standard Model," come forth with theories attempting to harmonize text, history, and structure to show that the Amendment is the Constitution's version of Oakland--that there is no "there" there. Earlier "theories" had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents. (2) A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard Model and has started to generate alternatives to the Standard Model. (3) In this brief essay, we critique that part of Yassky's theory dismissing United States v. Miller (4) as providing the basis for an individual rights interpretation of the Second Amendment. In his provocative response to the Standard Model, Yassky argues that, if the dramatic changes to our constitutional regime since the time of the Amendment's drafting are taken into account, the Standard Model proves inadequate. (5) One question that Yassky addresses is why the Supreme Court has continued to underenforce the Amendment, treating it as a "constitutional pariah, barred from associating with other 'high caste' civil liberties that [the Court] has labored to protect" (6) in the years since the so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of the late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of the new administrative state, while also being rooted in key New Deal themes [such as Roosevelt's famous "Four Freedoms"]; accordingly it revitalized the First Amendment. The court could not, however, envision a similar role for the right to keep and bear arms. (7) This, Yassky argues, is key to understanding what he terms "the failure of the courts" to enforce the Amendment and accounts for its virtual repeal at all levels of the federal judiciary. (8) Indicative of this failure is the United States Supreme Court's only case this century squarely addressing the Second Amendment, United States v. Miller. (9) Yassky, however, devotes only a few pages to Miller, a decision he defends only with the observation that the opinion "says very little." (10) What he does say is that "the Miller opinion... plainly rule[s] out" what he terms "the revisionists' Libertarian Approach" to the Second Amendment. (11) Yassky's reading of Miller is mistaken. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment--the holding ascribed to it by most federal courts since 1939. (12) Yassky's error on
直到最近几年，那些反对对第二修正案的个人权利解释的人(我们中的一个人称之为“标准模型”)才提出了一些理论，试图协调文本、历史和结构，以表明修正案是宪法版的奥克兰——那里没有“那里”。早期的“理论”往往只是浮夸其谈，其含义从未被其支持者深入探讨过。(2) David Yassky教授最近的一篇文章指出，有一部分法律界人士对标准模型持不同意见，并开始提出标准模型的替代方案。(3)在这篇简短的文章中，我们批判了Yassky的部分理论，认为United States v. Miller(4)案为第二修正案的个人权利解释提供了基础。在他对标准模型的挑衅性回应中，Yassky认为，如果考虑到自修正案起草以来我们的宪法制度发生的巨大变化，标准模型被证明是不充分的。(5)亚斯基提出的一个问题是，自1937年所谓的宪法革命以来，为什么最高法院一直没有充分执行该修正案，将其视为“宪法的贱民，被禁止与其他‘高种姓’公民自由(法院)努力保护的公民自由联系在一起”(6)。Yassky给出了这样的答案:20世纪30年代末和40年代的最高法院认为[像言论自由这样的公民自由]既减轻了新行政国家的危险，同时也植根于新政的关键主题[如罗斯福著名的“四大自由”];因此，它恢复了第一修正案的活力。然而，最高法院无法为持有和携带武器的权利设想类似的作用。(7)亚斯基认为，这是理解他所说的“法院未能”执行《修正案》的关键，也是解释《修正案》在各级联邦司法机构实际上被废除的原因。(8)美国最高法院本世纪唯一一个直接处理第二修正案的案件，即美国诉米勒案，说明了这一失败。(9)然而，Yassky只花了几页的篇幅来论述Miller，他为这个决定辩护的唯一理由是，该意见“没有说明什么”。(10)他所说的是“米勒的观点……明确地排除了他所说的“修正主义者的自由意志主义方法”。亚斯基对米勒的解读是错误的。当仔细阅读判决书并考虑到最高法院可用(和不可用)的论据时，最好将该判决书理解为为法院采用第二修正案的标准示范解读留下了机会。米勒显然没有否认个人持有和携带武器的权利受到宪法第二修正案的保护——自1939年以来，大多数联邦法院都将这一权利归因于宪法第二修正案。亚斯基在这个问题上的错误需要纠正。首先，我们承认我们只关注了Yassky论点的一小部分，但我们认为，从几个方面来看，对Miller的关注是合理的。首先，最高法院对第二修正案的任何后续解释都必须考虑到米勒。毕竟，下级法院曾引用米勒的观点来维持宪法第二修正案并未赋予个人持有和携带武器的权利。如果Yassky是正确的，并且标准模型或“自由主义方法”在那里找不到支持，那么这可能会结束法院的问题。他们不需要诉诸于Yassky的详尽论证，即军事姿态的巨大转变，从19世纪开始，到20世纪完成，从州民兵到联邦控制的专业军事机构，构成了暂时延长的“宪法时刻”，耗尽了第二修正案的可执行内容。．．．
{"title":"Telling Miller’s Tale: A Reply to David Yassky","authors":"Brannon P. Denning, G. Reynolds","doi":"10.2307/1192241","DOIUrl":"https://doi.org/10.2307/1192241","url":null,"abstract":"I INTRODUCTION Only in recent years (1) have those opposed to the individual rights interpretation of the Second Amendment, which one of us dubbed the \"Standard Model,\" come forth with theories attempting to harmonize text, history, and structure to show that the Amendment is the Constitution's version of Oakland--that there is no \"there\" there. Earlier \"theories\" had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents. (2) A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard Model and has started to generate alternatives to the Standard Model. (3) In this brief essay, we critique that part of Yassky's theory dismissing United States v. Miller (4) as providing the basis for an individual rights interpretation of the Second Amendment. In his provocative response to the Standard Model, Yassky argues that, if the dramatic changes to our constitutional regime since the time of the Amendment's drafting are taken into account, the Standard Model proves inadequate. (5) One question that Yassky addresses is why the Supreme Court has continued to underenforce the Amendment, treating it as a \"constitutional pariah, barred from associating with other 'high caste' civil liberties that [the Court] has labored to protect\" (6) in the years since the so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of the late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of the new administrative state, while also being rooted in key New Deal themes [such as Roosevelt's famous \"Four Freedoms\"]; accordingly it revitalized the First Amendment. The court could not, however, envision a similar role for the right to keep and bear arms. (7) This, Yassky argues, is key to understanding what he terms \"the failure of the courts\" to enforce the Amendment and accounts for its virtual repeal at all levels of the federal judiciary. (8) Indicative of this failure is the United States Supreme Court's only case this century squarely addressing the Second Amendment, United States v. Miller. (9) Yassky, however, devotes only a few pages to Miller, a decision he defends only with the observation that the opinion \"says very little.\" (10) What he does say is that \"the Miller opinion... plainly rule[s] out\" what he terms \"the revisionists' Libertarian Approach\" to the Second Amendment. (11) Yassky's reading of Miller is mistaken. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment--the holding ascribed to it by most federal courts since 1939. (12) Yassky's error on ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"14 1","pages":"113-124"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79267786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
These are the times that try men's souls. (1) There is no freedom in a land where fear and hate prevail. Isn't this a time? A time to try the soul of men, Isn't this a terrible time? (2) Whether or not First Amendment rights are especially important during a crisis, they are nonetheless especially at risk then: Government requests to suspend civil liberties are always rationalized by "crisis." In the aftermath of the terrorist attacks of September 11, 2001, not only legal scholars, but all Americans, wondered what the civil liberties fallout would be. A particular area of concern was, and still is, the First Amendment protections, especially of speech and press. It seems, though, that the greatest threat to First Amendment liberties may come from unexpected sources. Even before the calendar changed to September 12, civil libertarians right and left expressed concerns that the terrorist attacks might trigger a broad spectrum of restrictions upon individual liberties. The rights of travel and privacy came to mind at once. But it was not long afterward that people began to worry that censorship of speech and press would be imposed as part of a war effort. Loose lips sink ships, after all. Soon after came worries about restrictions of religious expression by Muslims and fears of governmental religious coercion, where patriotic sentiment could become conflated with religious symbols and expression. Commentators of all political stripes warned against panicky restrictions of speech and press rights, often pointing out the irony of restricting American freedoms in an effort to fight an enemy whose disdain for the United States rests in part upon those very freedoms. And then a surprising thing happened: Nothing. Well, not nothing, but significantly less, in the way of government infringement upon civil liberties, than many of us had feared in the dangerous early period. In the first few weeks after the September attacks, Congress gave a stinging rejection to Attorney General John Ashcroft's initial request for expanded snooping and detention powers. Later, the Bush Administration and Congress would adopt dreadful "antiterrorism" measures, but at the beginning, the federal government was surprisingly restrained. In fact, officials at all levels of government went out of their way to assure the public that the United States would not "hand a victory" to the terrorists by voluntarily restricting the very American freedoms that the terrorists presumably hate and resent. Far from establishing internment camps like those established for Japanese-Americans during World War II, the President immediately cautioned against discrimination against Arabs and Muslims. Nearly every time a public official made a statement in the first few days after the attacks, he or she seemed to feel compelled to add that "this is not a war against Muslims," and that "Islam does not condone violence"--the latter being proclaimed whether the speaker knew anything about Islam or not.
{"title":"The First Amendment in a Time That Tries Men’s Souls","authors":"S. Gellman","doi":"10.2307/1192239","DOIUrl":"https://doi.org/10.2307/1192239","url":null,"abstract":"These are the times that try men's souls. (1) There is no freedom in a land where fear and hate prevail. Isn't this a time? A time to try the soul of men, Isn't this a terrible time? (2) Whether or not First Amendment rights are especially important during a crisis, they are nonetheless especially at risk then: Government requests to suspend civil liberties are always rationalized by \"crisis.\" In the aftermath of the terrorist attacks of September 11, 2001, not only legal scholars, but all Americans, wondered what the civil liberties fallout would be. A particular area of concern was, and still is, the First Amendment protections, especially of speech and press. It seems, though, that the greatest threat to First Amendment liberties may come from unexpected sources. Even before the calendar changed to September 12, civil libertarians right and left expressed concerns that the terrorist attacks might trigger a broad spectrum of restrictions upon individual liberties. The rights of travel and privacy came to mind at once. But it was not long afterward that people began to worry that censorship of speech and press would be imposed as part of a war effort. Loose lips sink ships, after all. Soon after came worries about restrictions of religious expression by Muslims and fears of governmental religious coercion, where patriotic sentiment could become conflated with religious symbols and expression. Commentators of all political stripes warned against panicky restrictions of speech and press rights, often pointing out the irony of restricting American freedoms in an effort to fight an enemy whose disdain for the United States rests in part upon those very freedoms. And then a surprising thing happened: Nothing. Well, not nothing, but significantly less, in the way of government infringement upon civil liberties, than many of us had feared in the dangerous early period. In the first few weeks after the September attacks, Congress gave a stinging rejection to Attorney General John Ashcroft's initial request for expanded snooping and detention powers. Later, the Bush Administration and Congress would adopt dreadful \"antiterrorism\" measures, but at the beginning, the federal government was surprisingly restrained. In fact, officials at all levels of government went out of their way to assure the public that the United States would not \"hand a victory\" to the terrorists by voluntarily restricting the very American freedoms that the terrorists presumably hate and resent. Far from establishing internment camps like those established for Japanese-Americans during World War II, the President immediately cautioned against discrimination against Arabs and Muslims. Nearly every time a public official made a statement in the first few days after the attacks, he or she seemed to feel compelled to add that \"this is not a war against Muslims,\" and that \"Islam does not condone violence\"--the latter being proclaimed whether the speaker knew anything about Islam or not. ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"18 1","pages":"87-102"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81139657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION The Bill of Rights of the United States Constitution served as both a model and anti-model (1) for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe ("CEE"). The U.S. Bill of Rights served as a model at a general, abstract level, similar to the way in which it provided an example to Western European countries after the Second World War, thereby informing the "new constitutionalism" in Europe. (2) In contrast to traditional European constitutionalism, this new approach was influenced by three ideas that had long been commonplace in U.S. constitutionalism. First, a constitution cannot confine its scope to the regulation of the vertical and horizontal separation of powers; it is incomplete without an explicit written statement of citizens' rights that cannot be transgressed by any agent to whom the Constitution applies. (3) Second, the provisions of the constitutional charter of rights apply directly to all state bodies4 regard less of statutory implementation; these constitutional rights are cognizable and enforceable by courts. Third, to be meaningful and truly paramount, constitutional rights should be a basis for declaring subconstitutional provisions invalid in cases of inconsistency. These three principles, whose U.S. pedigree is undisputed, have generally been accepted in the constitutional designs of transitional postcommunist states. (5) The attractiveness of these principles is not surprising: After a period of sham constitutions and charters of rights, constitution-makers in postcommunist countries needed firm doctrinal bases to convince their audiences-societies liberated from authoritarian regimes marked by high degrees of legal and constitutional nihilism--that their democratic and institutional commitments were genuine. Hence the appeal to a conception of constitutional rights that is as robust as possible--with rights having a firm textual anchor, being directly applicable to the people, and overriding lower laws in cases of inconsistency--becomes extremely appealing. Yet the U.S. Bill of Rights is also an anti-model. When it comes to specific provisions of constitutional design as opposed to general, postcommunist constitution-makers have been much more inspired by post-Second World War European (continental) constitutionalism, with the German, French, and Italian constitutions serving as the more obvious prototypes of constitutional rights formulations than the U.S. example. Some reasons for this are obvious: The postcommunist GEE societies have much more in common with regard to tradition, culture, and social structure with Western Europe than with the United States. These similarities naturally extend to constitutional and legal culture as well. One obvious difference between the United States and Western Europe is the relatively low status of, and trust in, the judiciary in Europe, in contrast to the elevated position and prestig
{"title":"PostCommunist Charters of Rights in Europe and the U.S. Bill of Rights","authors":"W. Sadurski","doi":"10.2307/1192244","DOIUrl":"https://doi.org/10.2307/1192244","url":null,"abstract":"I INTRODUCTION The Bill of Rights of the United States Constitution served as both a model and anti-model (1) for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe (\"CEE\"). The U.S. Bill of Rights served as a model at a general, abstract level, similar to the way in which it provided an example to Western European countries after the Second World War, thereby informing the \"new constitutionalism\" in Europe. (2) In contrast to traditional European constitutionalism, this new approach was influenced by three ideas that had long been commonplace in U.S. constitutionalism. First, a constitution cannot confine its scope to the regulation of the vertical and horizontal separation of powers; it is incomplete without an explicit written statement of citizens' rights that cannot be transgressed by any agent to whom the Constitution applies. (3) Second, the provisions of the constitutional charter of rights apply directly to all state bodies4 regard less of statutory implementation; these constitutional rights are cognizable and enforceable by courts. Third, to be meaningful and truly paramount, constitutional rights should be a basis for declaring subconstitutional provisions invalid in cases of inconsistency. These three principles, whose U.S. pedigree is undisputed, have generally been accepted in the constitutional designs of transitional postcommunist states. (5) The attractiveness of these principles is not surprising: After a period of sham constitutions and charters of rights, constitution-makers in postcommunist countries needed firm doctrinal bases to convince their audiences-societies liberated from authoritarian regimes marked by high degrees of legal and constitutional nihilism--that their democratic and institutional commitments were genuine. Hence the appeal to a conception of constitutional rights that is as robust as possible--with rights having a firm textual anchor, being directly applicable to the people, and overriding lower laws in cases of inconsistency--becomes extremely appealing. Yet the U.S. Bill of Rights is also an anti-model. When it comes to specific provisions of constitutional design as opposed to general, postcommunist constitution-makers have been much more inspired by post-Second World War European (continental) constitutionalism, with the German, French, and Italian constitutions serving as the more obvious prototypes of constitutional rights formulations than the U.S. example. Some reasons for this are obvious: The postcommunist GEE societies have much more in common with regard to tradition, culture, and social structure with Western Europe than with the United States. These similarities naturally extend to constitutional and legal culture as well. One obvious difference between the United States and Western Europe is the relatively low status of, and trust in, the judiciary in Europe, in contrast to the elevated position and prestig","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"223-250"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89607766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION On July 3, 2001, the Tampa, Florida, Police Department began using FaceIt, a video surveillance system based on face-recognition software, in Ybor City, a downtown nightilfe district. (1) Three dozen security cameras scanned crowds while the software, using complex mathematical formulas to represent facial features, searched for database matches to the faces of wanted criminals. (2) When no match was found, the scanned image was deleted, a precaution voluntarily undertaken by the system's owner, Visionics Corporation of Jersey City, New Jersey, but not required by law. (3) If a match was found, however, a systems operator would then determine whether there was enough of a match to notify a uniformed officer to investigate .and possibly make an arrest. (4) Signs in the area warned passersby, "Smart CCTV in use," though most interviewed for a news story on the system did not know what the message meant. (5) Meanwhile, the Pentagon is funding a fifty-million dollar initiative to use face-recognition technology a s a means for combating terrorism.6 Informal interviews revealed widely diverging views of the technology among Tampa's citizenry. Many saw it as an invasion of privacy reminiscent of George Orwell's 1984, which predicted a totalitarian future based on constant, state-initiated surveillance of its subjects. (7) Police and local political officials argued that the system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, (8) some staging protests against the FaceIt system. (9) Privacy objections seem to be far more widely shared than this small protest might suggest. The objectors cover the entire political spectrum. House Majority Leader Richard Armey, for example, in asking for a report on federal surveillance spending, had this to say about the subject: The most serious threats to our freedom often advance in small steps. Face recognition systems may one day provide significant benefits in military applications....We are taking a step in the wrong direction if we allow this powerful technology to be 10 turned against citizens who have done no wrong. (10) The American Civil Liberties Union has joined Armey's call for caution, describing the FaceIt system as subjecting the public to a "digital lineup." (11) Others worry that FaceIt and similar systems will be used by government agencies to track and catalogue the movements of innocent citizens, possibly for political reasons. (12) Little, if any, legislation protects against these dangers, yet it is unlikely that the Fourth Amendment to the United States Constitution does either. The wisdom of implementing the system has not yet been subjected to serious democratic deliberation. (13) The FaceIt system represents the tip of the iceberg in the growing potential use of surveillance technologies, including "ray-gun distance frisks," (14) mandatory, nationwide DNA databases covering all United States resi
{"title":"The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions","authors":"Andrew E. Taslitz","doi":"10.2307/1192242","DOIUrl":"https://doi.org/10.2307/1192242","url":null,"abstract":"I INTRODUCTION On July 3, 2001, the Tampa, Florida, Police Department began using FaceIt, a video surveillance system based on face-recognition software, in Ybor City, a downtown nightilfe district. (1) Three dozen security cameras scanned crowds while the software, using complex mathematical formulas to represent facial features, searched for database matches to the faces of wanted criminals. (2) When no match was found, the scanned image was deleted, a precaution voluntarily undertaken by the system's owner, Visionics Corporation of Jersey City, New Jersey, but not required by law. (3) If a match was found, however, a systems operator would then determine whether there was enough of a match to notify a uniformed officer to investigate .and possibly make an arrest. (4) Signs in the area warned passersby, \"Smart CCTV in use,\" though most interviewed for a news story on the system did not know what the message meant. (5) Meanwhile, the Pentagon is funding a fifty-million dollar initiative to use face-recognition technology a s a means for combating terrorism.6 Informal interviews revealed widely diverging views of the technology among Tampa's citizenry. Many saw it as an invasion of privacy reminiscent of George Orwell's 1984, which predicted a totalitarian future based on constant, state-initiated surveillance of its subjects. (7) Police and local political officials argued that the system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, (8) some staging protests against the FaceIt system. (9) Privacy objections seem to be far more widely shared than this small protest might suggest. The objectors cover the entire political spectrum. House Majority Leader Richard Armey, for example, in asking for a report on federal surveillance spending, had this to say about the subject: The most serious threats to our freedom often advance in small steps. Face recognition systems may one day provide significant benefits in military applications....We are taking a step in the wrong direction if we allow this powerful technology to be 10 turned against citizens who have done no wrong. (10) The American Civil Liberties Union has joined Armey's call for caution, describing the FaceIt system as subjecting the public to a \"digital lineup.\" (11) Others worry that FaceIt and similar systems will be used by government agencies to track and catalogue the movements of innocent citizens, possibly for political reasons. (12) Little, if any, legislation protects against these dangers, yet it is unlikely that the Fourth Amendment to the United States Constitution does either. The wisdom of implementing the system has not yet been subjected to serious democratic deliberation. (13) The FaceIt system represents the tip of the iceberg in the growing potential use of surveillance technologies, including \"ray-gun distance frisks,\" (14) mandatory, nationwide DNA databases covering all United States resi","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"40 1","pages":"125-188"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85451312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUTION The following conversation between a civil libertarian and a new-left First Amendment theorist occurred as part of the ABA's conference on the present and future of the Bill of Rights. The discussion was precipitated by the case of Matthew Hale, a white supremacist who--to put it mildly--likes to attract media attention. He set himself up as the leader of a racist "church" called the World Church of the Creator, and immediately went about attempting to put an articulate, polite face on the organization, much in the way that David Duke tried to appear less threatening during his run for Congress in Louisiana. But there is only so much window-dressing that Hale can do, since he is obviously a rabid racist. His website contains numerous exhortations to "racial loyalty" and "racial holy war"; shopworn canards about blacks, Jews, and other ethnic minorities (called the "mud races" by Hale); a bizarre theology based on the "Sixteen Commandments" and vehement denunciations of Christianity; long-discredited bogus bio logical theories about racial differences; and a boilerplate disclaimer that the group does not condone violence. (1) Hale's little corner of cyberspace is representative of a burgeoning number of websites maintained by white supremacists and other hate groups. (2) The World Church of the Creator site alone contains links to dozens of other racist sites, (3) including those maintained by the Knights of the Ku Klux Klan, the American Nazi Party, and the White Aryan Resistance. But Hale and his organization have certainly established a higher profile than other hate groups on the Internet, particularly with their efforts to market racism to children with a kids' website featuring white-supremacist games and puzzles--fun for the whole family! (4) Hale also happens to be a graduate of Southern Illinois University Law School. Because of the publicity he had managed to attract, Hale's application to become a licensed attorney in Illinois was a media event, and the decision of the character and fitness committee of the Illinois Supreme Court, declining to certify his fitness for admission, generated immediate controversy. (5) Alan Dershowitz offered to represent Hale in his challenge to this order, an offer which, as far as I know, was not taken up. (6) Hale petitioned for review by the Illinois Supreme Court. He was denied, (7) and he then petitioned for certiorari in the U.S. Supreme Court, which he was again denied. (8) The Hale case is important not only to lawyers who represent unpopular applicants for admission to practice law. It has broader significance as a test case for much of the recent theorizing about the application of the First Amendment to hateful expression. Hale's application to practice law also provides a wonderful illustration of how the new left critique of the First Amendment would play out in practice, since the Illinois bar committee swallowed the new left position hook, line, and sinker. The committee emphas
以下是一位公民自由主义者和一位新左派第一修正案理论家之间的对话，这是美国律师协会关于《权利法案》的现在和未来的会议的一部分。这场讨论是由马修·黑尔(Matthew Hale)的案件引发的，他是一名白人至上主义者，说得委婉点，喜欢吸引媒体的关注。他自封为一个种族主义“教会”的领袖，这个“教会”名为“世界造物主教会”(World church of the Creator)，他立即开始试图在这个组织中摆出一副能言善辩、彬彬有礼的面孔，就像大卫·杜克(David Duke)在路易斯安那州竞选国会议员时试图让自己显得不那么具有威胁性一样。但黑尔能做的粉饰也就这么多了，因为他显然是一个狂热的种族主义者。他的网站上有许多关于“种族忠诚”和“种族圣战”的劝告;关于黑人、犹太人和其他少数民族(黑尔称之为“泥巴种族”)的陈腐谣言;以“十六诫”为基础的怪异神学和对基督教的激烈谴责;关于种族差异的虚假生物学理论早已失信;还有一份照本宣科的免责声明，称该组织不容忍暴力。(1)黑尔的小角落,网络空间是代表迅速增多的白人优越主义者网站维护和其他仇视团体。(2)仅造物主世界教会网站就包含了数十个其他种族主义网站的链接，(3)包括3k党骑士、美国纳粹党和白人雅利安抵抗组织维护的网站。但黑尔和他的组织确实比其他仇恨组织在互联网上建立了更高的知名度，特别是他们努力向儿童推销种族主义，他们的儿童网站上有白人至上主义的游戏和谜题——全家都可以玩!黑尔碰巧也是南伊利诺伊大学法学院的毕业生。由于他成功地吸引了公众的注意，黑尔申请成为伊利诺斯州有执照的律师的申请成为了一个媒体事件，伊利诺斯州最高法院的性格和健康委员会的决定，拒绝证明他的健康，立即引起了争议。艾伦·德肖维茨提出代表黑尔向这个命令发起挑战，据我所知，这个提议没有被采纳。黑尔请求伊利诺斯州最高法院复审。他被拒绝了，(7)然后他向美国最高法院申请调卷，他又被拒绝了。(8)黑尔案不仅对那些代表不受欢迎的申请人申请执业律师的律师很重要。它具有更广泛的意义，是最近关于将《第一修正案》应用于仇恨表达的许多理论的一个测试案例。黑尔在法律实践中的应用也很好地说明了新左派对第一修正案的批评将如何在实践中发挥作用，因为伊利诺伊州律师委员会全盘接受了新左派的立场。委员会强调种族平等和人类尊严的宪法价值受到黑尔主张的表达自由的威胁，并得出结论，平等的价值必须取代言论自由的价值。(9)这正是一些新左派批评者一直敦促法院在仇恨言论案件中所做的。(10)例如，批评种族理论运动的先驱之一、新左派对宪法第一修正案的批判者松田曼(Man Matsuda)建议，应该划分出一种公认的基于内容的、自成一类的种族主义言论，这种言论可以由国家加以管制。(11)另一位对进步主义批评家至关重要的学者查尔斯·劳伦斯(Charles Lawrence)提出了一种更现实的、不那么绝对的法理学，在这种法理学中，种族平等和人类尊严的宪法价值与《第一修正案》所保障的表达自由同等重要。(12)同样，这正是伊利诺斯州律师委员会采纳的建议，该委员会在黑尔主张的言论自由权与他的承认将威胁到的平等利益之间进行了权衡，并发现黑尔的主张存在不足。…
{"title":"“Certain Fundamental Truths”: A Dialectic on Negative and Positive Liberty in Hate-Speech Cases","authors":"W. Wendel","doi":"10.2307/1192238","DOIUrl":"https://doi.org/10.2307/1192238","url":null,"abstract":"I INTRODUTION The following conversation between a civil libertarian and a new-left First Amendment theorist occurred as part of the ABA's conference on the present and future of the Bill of Rights. The discussion was precipitated by the case of Matthew Hale, a white supremacist who--to put it mildly--likes to attract media attention. He set himself up as the leader of a racist \"church\" called the World Church of the Creator, and immediately went about attempting to put an articulate, polite face on the organization, much in the way that David Duke tried to appear less threatening during his run for Congress in Louisiana. But there is only so much window-dressing that Hale can do, since he is obviously a rabid racist. His website contains numerous exhortations to \"racial loyalty\" and \"racial holy war\"; shopworn canards about blacks, Jews, and other ethnic minorities (called the \"mud races\" by Hale); a bizarre theology based on the \"Sixteen Commandments\" and vehement denunciations of Christianity; long-discredited bogus bio logical theories about racial differences; and a boilerplate disclaimer that the group does not condone violence. (1) Hale's little corner of cyberspace is representative of a burgeoning number of websites maintained by white supremacists and other hate groups. (2) The World Church of the Creator site alone contains links to dozens of other racist sites, (3) including those maintained by the Knights of the Ku Klux Klan, the American Nazi Party, and the White Aryan Resistance. But Hale and his organization have certainly established a higher profile than other hate groups on the Internet, particularly with their efforts to market racism to children with a kids' website featuring white-supremacist games and puzzles--fun for the whole family! (4) Hale also happens to be a graduate of Southern Illinois University Law School. Because of the publicity he had managed to attract, Hale's application to become a licensed attorney in Illinois was a media event, and the decision of the character and fitness committee of the Illinois Supreme Court, declining to certify his fitness for admission, generated immediate controversy. (5) Alan Dershowitz offered to represent Hale in his challenge to this order, an offer which, as far as I know, was not taken up. (6) Hale petitioned for review by the Illinois Supreme Court. He was denied, (7) and he then petitioned for certiorari in the U.S. Supreme Court, which he was again denied. (8) The Hale case is important not only to lawyers who represent unpopular applicants for admission to practice law. It has broader significance as a test case for much of the recent theorizing about the application of the First Amendment to hateful expression. Hale's application to practice law also provides a wonderful illustration of how the new left critique of the First Amendment would play out in practice, since the Illinois bar committee swallowed the new left position hook, line, and sinker. The committee emphas","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"55 1","pages":"33-86"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86260966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free speech and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can "hate speech" be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of speech and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH "SET YOU FREE"? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published
在过去四十年的教学和研究第一修正案的过程中，我见证了许多言论和新闻自由问题的解决，或者至少是澄清。然而，也有一些长期存在的问题——言论自由与其他基本人类自由之间难以捉摸或难以解决的紧张关系——值得特别仔细地审视。这篇文章提出了三个这样的问题:言论自由与隐私、文明与平等之间的紧张关系。这两种紧张关系的例子比比皆是:是否可以禁止激进的记者或摄影师使用红外摄像机和抛物面麦克风等高科技工具隔着房子或办公室的墙壁收集图像和对话?一个人在公共场合咒骂和使用低俗的脏话会被判入狱吗?大学校园里的“仇恨言论”能否得到遏制，以保护社会中的弱势群体?回答这些问题应该很简单，但却极其困难，因为在自由表达和其他价值观之间的适当平衡问题上，美国人有着深刻的矛盾心理。作为一个国家，我们同样致力于言论自由以及隐私、文明和平等的基本价值观。我们希望法院能够取得适当的平衡，以使我们能够同样好地维护(以及我们的法律为之服务)这两种价值观的方式来解决这些紧张关系。当法院在这方面的努力失败或动摇时，我们深感失望。我们期望法官们能够发现或设计和解的途径，尽管他们避开了我们其他人。在本文关注的三个紧张领域中，法院明显不成功，似乎不太可能取得突破。也许我们应该简单地承认，解决这些问题是不可能的，我们必须接受我们的第一修正案判例中某些棘手的紧张关系。也许，事实上，我们甚至应该感激，真正不可调和的冲突很少存在。隐私:真相会“让你自由”吗?在一个理想的体系中，真相的法律重要性是明确无误的。事实的正确性要么为任何侵犯隐私的主张提供完整的辩护，要么在法律上无关紧要。然而，这个国家的法院对隐私和真相之间的关系一直持奇怪的矛盾态度。甚至最高法院的个别法官也可能被公平地指责为优柔寡断。人们可能很容易忘记，大法官路易斯·d·布兰代斯(Louis D. Brandeis)在其职业生涯晚期最雄辩地阐述了最大限度的言论自由，他在年轻时曾写过一篇开创性的文章，首先提出了对那些发表不受欢迎的事实侵犯他人隐私的人施加法律责任的基本原理。这种不一致一直存在，凸显了这个问题的内在困难。最高法院在审查对那些发布真实但私密信息的人的刑事或民事判决时，一贯拒绝承认真相是绝对的辩护理由，尽管法官们从未在材料的准确性无可争议的情况下支持这种主张。最高法院在这个问题上的说法是有帮助的，但不是决定性的:“惩罚发布真实信息的行为很少能证明宪法标准是正当的。”(3)关键字当然是“很少”;首席大法官伯格没有说"永远不会"这样一个公式提出了一个有趣的问题:为什么高等法院从来没有断然取消对真实信息发布者的索赔?法院没有设定这一标准，而是规定了三个条件:(1)信息必须准确;(二)具有明显的“公共利益”;(3)它必须不是“非法获得的”。(4)第一项标准足够明显;传播虚假信息不仅会使出版者承担诽谤的民事责任，而且即使是通常致力于保护言论和交流自由的法院也不会同情出版者。…
{"title":"Rights in Conflict: The First Amendment’s Third Century","authors":"R. O'neil","doi":"10.2307/1192237","DOIUrl":"https://doi.org/10.2307/1192237","url":null,"abstract":"I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free speech and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can \"hate speech\" be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of speech and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH \"SET YOU FREE\"? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"57 1","pages":"7-32"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76858858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What arguments make a case for the public domain in intellectual achievements? The arguments for private property in intellectual matters are rather thinner than the corresponding arguments for private property arguments for tangible things. Hence if there is a case for "publicness" even with tangible property, one would expect that case to be doubly powerful for intellectual achievements, where the private property rationale is weaker. This paper looks to the Roman law categories of publicness for tangible property, and finds analogies between certain types of tangible properties and intellectual endeavors. Though the Roman law of public property was sketchy, it was based on several different and quite subtle sets of reasons. Some things are public because they are appropriable but have not yet been reduced to possession (res nullius); some because like the air mantel they are physically incapable of privatization (res communes); some like roads and waterways because they serve network effects (res publicae); some - perhaps most interestingly - because they are sacred (res divini juris). This paper argues that intellectual property law effectively takes matters like expressions or inventions, which are physically incapable of individual ownership (res communes) and turns them into appropriable property (res nullius). But it also argues that the ultimate goal of this body of law is that intellectual endeavors over time become available to the public (res publicae) because of the positive networking effects from the easy exchange of ideas. The article concludes by noting that some iconic intellectual endeavors - notable the "canon" - become public for quasi-sacral reasons, as in the Roman law category of res divini juris.
{"title":"Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age","authors":"Carol M. Rose","doi":"10.2139/SSRN.293142","DOIUrl":"https://doi.org/10.2139/SSRN.293142","url":null,"abstract":"What arguments make a case for the public domain in intellectual achievements? The arguments for private property in intellectual matters are rather thinner than the corresponding arguments for private property arguments for tangible things. Hence if there is a case for \"publicness\" even with tangible property, one would expect that case to be doubly powerful for intellectual achievements, where the private property rationale is weaker. This paper looks to the Roman law categories of publicness for tangible property, and finds analogies between certain types of tangible properties and intellectual endeavors. Though the Roman law of public property was sketchy, it was based on several different and quite subtle sets of reasons. Some things are public because they are appropriable but have not yet been reduced to possession (res nullius); some because like the air mantel they are physically incapable of privatization (res communes); some like roads and waterways because they serve network effects (res publicae); some - perhaps most interestingly - because they are sacred (res divini juris). This paper argues that intellectual property law effectively takes matters like expressions or inventions, which are physically incapable of individual ownership (res communes) and turns them into appropriable property (res nullius). But it also argues that the ultimate goal of this body of law is that intellectual endeavors over time become available to the public (res publicae) because of the positive networking effects from the easy exchange of ideas. The article concludes by noting that some iconic intellectual endeavors - notable the \"canon\" - become public for quasi-sacral reasons, as in the Roman law category of res divini juris.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"89-110"},"PeriodicalIF":0.0,"publicationDate":"2002-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89986235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Lucy S. McGough (*) I INTRODUCTION In a Memphis, Tennessee day-care abuse investigation, police investigators made videotapes of their interviews with young alleged victims. As might be expected, some of the children gave inconsistent accounts. (1) Quite unexpected, even shocking, is the fact that, after reviewing the interviews, an assistant attorney instructed the investigators to destroy the tapes so that they would not be available for discovery. (2) No verbatim transcripts were made, and the tapes were reused for other investigations. The Tennessee Supreme Court held that such behavior constituted willful prosecutorial misconduct in violation of Brady v. Maryland, (3) which requires disclosure of exculpatory evidence, that is, evidence that tends to support a claim of innocence. (4) In reversing the conviction and remanding for a new trial, the court barred the use of the children's videotaped interviews as proxy witnesses on retrial. (5) Any prosecutor concerned with controlling the flow of evidence would quickly appreciate the lesson of this Tennessee case: Destruction of a record is verboten, but if no record is ever made, there is nothing to disclose. Can the Constitution be so easily sidestepped? Is there a constitutional duty cast upon a prosecutor to preserve evidence, that is, to videotape a forensic interview of a child? This article proceeds with confidence on the premise that a forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise. (6) Furthermore, there are so many additional advantages from videotaping for the administration of the criminal justice system, far outweighing any suggested disadvantages, that videotaping of forensic interviews of children should become standard operating practice. But, as this article reveals, videotaping is not universally required, and, indeed, off-the-record forensic interviews of children continue to be tolerated as "good enough for government work." Part II of this article presents a brief overview of the practice of videotaping forensic interviews of child victims. Part III explores the Supreme Court's evidence preservation cases and the contours of the prosecution's duties under the Due Process Clause. Part IV analyzes the nature of forensic interviewing and argues that even under the Court's current narrow interpretation of an accused's entitlements, videotaping is constitutionally mandated by fundamental fairness under the Due Process Clause. II THE PRACTICE AND BENEFITS OF VIDEOTAPING As the term is used in this article, "forensic" evidence is, to some degree, malleable in that it is evidence that the state can shape, as opposed to prevenient and fixed evidence that the state has collected. (7) A forensic interv
在田纳西州孟菲斯市的一起日托虐待案件调查中，警方调查人员拍摄了他们对年轻受害者的采访录像带。不出所料，一些孩子给出了前后矛盾的说法。相当出乎意料，甚至令人震惊的事实是，一名助理律师在审查了采访记录后，指示调查人员销毁录音，以免被发现。(2)没有逐字记录，录音带被重新用于其他调查。田纳西州最高法院认为，这种行为构成故意的起诉不当行为，违反了Brady v. Maryland(3)的规定，该规定要求披露无罪证据，即倾向于支持无罪主张的证据。法院撤销了原判，发回重审，禁止在重审时使用孩子们的采访录像作为代理证人。(5)任何关心控制证据流动的检察官都会很快领会田纳西州这个案件的教训:销毁记录是被禁止的，但如果没有记录，就没有什么可披露的。宪法能如此轻易地被绕过吗?宪法是否规定检察官有义务保存证据，也就是说，对一名儿童的法医采访进行录像?这篇文章是在这样一个前提下满怀信心地进行的，即检察小组的一名成员对一名儿童进行的法医面谈提供了许多机会来破坏儿童所记得的叙述的可靠性。现在存在的大量研究数据证明，对儿童的法医采访是一项非常微妙、复杂和高风险的工作。(6)此外，对刑事司法系统的行政管理来说，录像有许多额外的好处，远远超过所提出的任何缺点，因此，对儿童的法医面谈进行录像应成为标准的操作做法。但是，正如这篇文章所揭示的那样，录像并不是普遍要求的，而且，事实上，对儿童的非正式法医采访继续被容忍为“足以用于政府工作”。本文第二部分简要概述了对儿童受害者的法医采访进行录像的做法。第三部分探讨了最高法院的证据保全案件，以及在正当程序条款下控方职责的轮廓。第四部分分析了法医面谈的性质，并辩称，即使根据法院目前对被告权利的狭隘解释，根据正当程序条款，录像也是宪法规定的基本公平。正如本文所使用的术语，“法医”证据在某种程度上是可塑的，因为它是国家可以塑造的证据，而不是国家收集的预先和固定的证据。(7)对儿童的法医面谈通常在儿童指称受到虐待的至少一次面谈之后不久进行。进行法医面谈的目的是为了创造将在审判中被采纳的证据，或者作为面谈的记录，或者作为面谈人对面谈期间发生的事情的证词。对儿童进行法医采访的显著特征是国家安排、指导和以其他方式控制证据的形成;采访者有可能歪曲证据;一旦污染发生，扭曲可能是不可逆的;国家代理人(采访者)自己无法对在采访过程中发生的无数互动做出忠实的记录;被告不能以任何其他方式复制该证据;而这个证据是最关键的，可能是唯一的证据证明的指控。…
{"title":"Good Enough for Government Work: The Constitutional Duty to Preserve Forensic Interviews of Child Victims","authors":"L. Mcgough","doi":"10.2307/1192370","DOIUrl":"https://doi.org/10.2307/1192370","url":null,"abstract":"Lucy S. McGough (*) I INTRODUCTION In a Memphis, Tennessee day-care abuse investigation, police investigators made videotapes of their interviews with young alleged victims. As might be expected, some of the children gave inconsistent accounts. (1) Quite unexpected, even shocking, is the fact that, after reviewing the interviews, an assistant attorney instructed the investigators to destroy the tapes so that they would not be available for discovery. (2) No verbatim transcripts were made, and the tapes were reused for other investigations. The Tennessee Supreme Court held that such behavior constituted willful prosecutorial misconduct in violation of Brady v. Maryland, (3) which requires disclosure of exculpatory evidence, that is, evidence that tends to support a claim of innocence. (4) In reversing the conviction and remanding for a new trial, the court barred the use of the children's videotaped interviews as proxy witnesses on retrial. (5) Any prosecutor concerned with controlling the flow of evidence would quickly appreciate the lesson of this Tennessee case: Destruction of a record is verboten, but if no record is ever made, there is nothing to disclose. Can the Constitution be so easily sidestepped? Is there a constitutional duty cast upon a prosecutor to preserve evidence, that is, to videotape a forensic interview of a child? This article proceeds with confidence on the premise that a forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise. (6) Furthermore, there are so many additional advantages from videotaping for the administration of the criminal justice system, far outweighing any suggested disadvantages, that videotaping of forensic interviews of children should become standard operating practice. But, as this article reveals, videotaping is not universally required, and, indeed, off-the-record forensic interviews of children continue to be tolerated as \"good enough for government work.\" Part II of this article presents a brief overview of the practice of videotaping forensic interviews of child victims. Part III explores the Supreme Court's evidence preservation cases and the contours of the prosecution's duties under the Due Process Clause. Part IV analyzes the nature of forensic interviewing and argues that even under the Court's current narrow interpretation of an accused's entitlements, videotaping is constitutionally mandated by fundamental fairness under the Due Process Clause. II THE PRACTICE AND BENEFITS OF VIDEOTAPING As the term is used in this article, \"forensic\" evidence is, to some degree, malleable in that it is evidence that the state can shape, as opposed to prevenient and fixed evidence that the state has collected. (7) A forensic interv","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"28 1","pages":"179-208"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90330835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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