Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But rarely, if ever, have they been approached as legal instruments. This Article accordingly fills that gap by construing Permissive Certificates through the complex but potent array of legal rights that they define. It argues that Permissive Certificates are not unitary instruments, but in fact an amalgamation of two distinct legal structures. They couple narrow retrospective warranties on the one hand with prospective copyright licenses and rights of source association on the other. Critically, as with all copyright and source-based permissions, they are conditioned on the owner/licensee complying with use guidelines. Material variations from such terms place the owner/licensee outside the scope of the license, or otherwise in breach, and at risk of claims of infringement by the artist. This approach to Permissive Certificates yields two important insights. First, they harbor an unappreciated power as a tool for artist control, particularly in jurisdictions such as the U.S. where moral rights remain relatively weak. Second, and more broadly, as art becomes increasingly more dematerialized, digitized, and duplicable, and ever more legalized in turn, Permissive Certificates will grow more and more into the locus of value for such works. Over the long run, museums and other collectors of fine art will become collectors, not of objects, but of permissions. The aura of the artist’s hand will be that of a signature and not of a brushstroke.
{"title":"Permissive Certificates: Collectors of Art as Collectors of Permissions","authors":"Patrick J. Karol","doi":"10.2139/SSRN.3295181","DOIUrl":"https://doi.org/10.2139/SSRN.3295181","url":null,"abstract":"Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But rarely, if ever, have they been approached as legal instruments. \u0000 \u0000This Article accordingly fills that gap by construing Permissive Certificates through the complex but potent array of legal rights that they define. It argues that Permissive Certificates are not unitary instruments, but in fact an amalgamation of two distinct legal structures. They couple narrow retrospective warranties on the one hand with prospective copyright licenses and rights of source association on the other. Critically, as with all copyright and source-based permissions, they are conditioned on the owner/licensee complying with use guidelines. Material variations from such terms place the owner/licensee outside the scope of the license, or otherwise in breach, and at risk of claims of infringement by the artist. \u0000 \u0000This approach to Permissive Certificates yields two important insights. First, they harbor an unappreciated power as a tool for artist control, particularly in jurisdictions such as the U.S. where moral rights remain relatively weak. Second, and more broadly, as art becomes increasingly more dematerialized, digitized, and duplicable, and ever more legalized in turn, Permissive Certificates will grow more and more into the locus of value for such works. Over the long run, museums and other collectors of fine art will become collectors, not of objects, but of permissions. The aura of the artist’s hand will be that of a signature and not of a brushstroke.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"94 1","pages":"1175"},"PeriodicalIF":1.3,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44423601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on the contracting parties and invite strategic behavior. Corpus linguistics offers a middle way. Corpus linguistics draws on evidence of language use from large, coded, electronic collections of natural language—language used in natural settings, rather than language elicited through interviews or surveys. These may include collections of texts from newspapers, magazines, academic articles, or transcribed conversations. These collections of texts are referred to as corpora (the plural of corpus). Linguistic corpora can be designed to model the linguistic conventions of a wide variety of speech communities, industries, or linguistic registers. Because large, sophisticated linguistic corpora are freely available, language evidence from linguistic corpora offers a comparatively low-cost alternative to the vast quantity of extrinsic evidence permitted by contextualist interpretive approaches. Moreover, by evaluating corpus evidence, judges and lawyers can create a more accurate, evidence-based picture of contractual meaning than can be found in the formalist judge’s linguistic intuition or in a general-use dictionary. Moreover, corpora can provide objective evidence of the linguistic conventions of the communities that draft and are governed by the agreements judges and lawyers are called upon to interpret. Corpus evidence can give content to otherwise vague legal concepts and provide linguistic evidence to aid in the evaluation of claims about the meaning (or ambiguity) of a contractual text. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.
{"title":"Contract Interpretation with Corpus Linguistics","authors":"Stephen C. Mouritsen","doi":"10.2139/SSRN.3065239","DOIUrl":"https://doi.org/10.2139/SSRN.3065239","url":null,"abstract":"Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on the contracting parties and invite strategic behavior. \u0000 \u0000Corpus linguistics offers a middle way. Corpus linguistics draws on evidence of language use from large, coded, electronic collections of natural language—language used in natural settings, rather than language elicited through interviews or surveys. These may include collections of texts from newspapers, magazines, academic articles, or transcribed conversations. These collections of texts are referred to as corpora (the plural of corpus). Linguistic corpora can be designed to model the linguistic conventions of a wide variety of speech communities, industries, or linguistic registers. Because large, sophisticated linguistic corpora are freely available, language evidence from linguistic corpora offers a comparatively low-cost alternative to the vast quantity of extrinsic evidence permitted by contextualist interpretive approaches. Moreover, by evaluating corpus evidence, judges and lawyers can create a more accurate, evidence-based picture of contractual meaning than can be found in the formalist judge’s linguistic intuition or in a general-use dictionary. \u0000 \u0000Moreover, corpora can provide objective evidence of the linguistic conventions of the communities that draft and are governed by the agreements judges and lawyers are called upon to interpret. Corpus evidence can give content to otherwise vague legal concepts and provide linguistic evidence to aid in the evaluation of claims about the meaning (or ambiguity) of a contractual text. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"94 1","pages":"1337"},"PeriodicalIF":1.3,"publicationDate":"2019-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47523168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.” Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes four contributions to the existing literature. First, it corrects the oft-repeated misconception that the Supreme Court’s recent Second Amendment jurisprudence has altered the Fourth Amendment’s reasonable suspicion standard. Second, it articulates the need for a “gun possession plus” reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. Fourth, it justifies this adaptation of “reasonable suspicion” with reference to traditional risk-assessment tort principles, including the Hand Formula. In doing so, the Article seeks a balanced and defensible approach to assessing law enforcement interactions with lawfully-armed civilians in the age of concealed carry.
{"title":"Stop and Frisk in a Concealed Carry World","authors":"Shawn E. Fields","doi":"10.2139/SSRN.3156692","DOIUrl":"https://doi.org/10.2139/SSRN.3156692","url":null,"abstract":"This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.” \u0000 \u0000Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes four contributions to the existing literature. First, it corrects the oft-repeated misconception that the Supreme Court’s recent Second Amendment jurisprudence has altered the Fourth Amendment’s reasonable suspicion standard. Second, it articulates the need for a “gun possession plus” reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. Fourth, it justifies this adaptation of “reasonable suspicion” with reference to traditional risk-assessment tort principles, including the Hand Formula. In doing so, the Article seeks a balanced and defensible approach to assessing law enforcement interactions with lawfully-armed civilians in the age of concealed carry.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"93 1","pages":"1675"},"PeriodicalIF":1.3,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48253343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United States has an unparalled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible. From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the U.S., angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without our robust private venture capital system have attempted to fund startups publicly by creating junior stock exchanges. These exchanges have been largely failures, however, in part because they have unsuccessfully relied on mandatory disclosure and other tools better suited to mitigating investment risks in established public companies. The U.S.’s relative success in supplying private venture capital makes our recent infatuation with crowdfunding curious. Fortunately, while crowdfunding was originally designed to resemble public venture capital, with “funding portals” acting as the junior stock exchanges, its final implementing rules took important steps back toward the private venture capital model.
{"title":"Public or Private Venture Capital","authors":"Darian M. Ibrahim","doi":"10.2139/SSRN.3266756","DOIUrl":"https://doi.org/10.2139/SSRN.3266756","url":null,"abstract":"The United States has an unparalled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible. \u0000 \u0000From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the U.S., angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without our robust private venture capital system have attempted to fund startups publicly by creating junior stock exchanges. These exchanges have been largely failures, however, in part because they have unsuccessfully relied on mandatory disclosure and other tools better suited to mitigating investment risks in established public companies. \u0000 \u0000The U.S.’s relative success in supplying private venture capital makes our recent infatuation with crowdfunding curious. Fortunately, while crowdfunding was originally designed to resemble public venture capital, with “funding portals” acting as the junior stock exchanges, its final implementing rules took important steps back toward the private venture capital model.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"94 1","pages":"1137"},"PeriodicalIF":1.3,"publicationDate":"2018-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48378429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.
{"title":"Snake Oil Speech","authors":"Jane R. Bambauer","doi":"10.2139/SSRN.3023388","DOIUrl":"https://doi.org/10.2139/SSRN.3023388","url":null,"abstract":"Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"93 1","pages":"73-143"},"PeriodicalIF":1.3,"publicationDate":"2018-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46362459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for the construction of infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, often these ecosystems provide critical services that strengthen a community’s resilience to disasters and slow changes. This article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.
{"title":"Fifty Shades of Gray Infrastructure: Land Use and the Failure to Create Resilient Cities","authors":"J. Rosenbloom","doi":"10.2139/SSRN.3013831","DOIUrl":"https://doi.org/10.2139/SSRN.3013831","url":null,"abstract":"Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for the construction of infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel “gray infrastructure.” Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, often these ecosystems provide critical services that strengthen a community’s resilience to disasters and slow changes. This article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"93 1","pages":"317"},"PeriodicalIF":1.3,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45502346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF) — the TANF block grant — guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. The Article then explores two potential paths forward for TANF as either a devolutionary outlier in social policy or as a harbinger of what is to come from recent Congressional proposals to block grant Medicaid and SNAP (food stamps). Public interest lawyers rightly fear that TANF could be the cutting edge of a newly devolved American safety net. The Article concludes by considering what the cautionary tale of TANF means for scholars of federalism and anti-poverty advocates.
{"title":"Welfare and Federalism's Peril","authors":"Andrew Hammond","doi":"10.2139/SSRN.2911631","DOIUrl":"https://doi.org/10.2139/SSRN.2911631","url":null,"abstract":"Recent scholarship on American federalism lacks case studies to inform that scholarship’s trans-substantive insights and claims. This Article examines the last two decades of devolution brought about by the 1996 Welfare Reform Act (PRWORA). It details the history of PRWORA and how the funding mechanism built into Temporary Assistance for Needy Families (TANF) — the TANF block grant — guaranteed the program’s deterioration. The Article documents the program’s failure to respond to increased need among poor families after Hurricane Katrina and in the Great Recession, showing how the federal government’s use of TANF in both crises teach us the limits of fiscally devolved programs. The Article then explores two potential paths forward for TANF as either a devolutionary outlier in social policy or as a harbinger of what is to come from recent Congressional proposals to block grant Medicaid and SNAP (food stamps). Public interest lawyers rightly fear that TANF could be the cutting edge of a newly devolved American safety net. The Article concludes by considering what the cautionary tale of TANF means for scholars of federalism and anti-poverty advocates.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"92 1","pages":"1721"},"PeriodicalIF":1.3,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44136272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Seattle police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. Following a council review that lasted literally two minutes, Oakland created a data integration center that networked together all of the city’s existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.In an age of heightened concern about the militarization of local police and surveillance technology, how is it possible for local law enforcement agencies to obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public understanding what they are doing? The answer lies in the multi-billion-dollar process of federal procurement, through which the federal government, often in the name of combatting terrorism, funnels resources to local law enforcement agencies to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions related to accountability for policy choices when the federal government influences local policing through grants but does not address all relevant concerns, and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.This article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. The case studies highlight the structural and institutional factors that lead to surveillance policy making by procurement, and elected representatives’ responses to it point the way towards policy solutions that would bring a greater measure of transparency and accountability to local surveillance policy making. The case studies also provide fodder for thinking through the way federal spending programs can generate confusion over who is responsible for policy choices, and how the federal government’s national security policies have spillover effects on the conduct of routine policing. Local communities vary greatly, in their crime rates, the competence and trustworthiness of their police departments, and in their political convictions. This article draws on the case studies to suggest that local governments have a valuable role to play in tailoring surveillance policy to local conditions. It concludes by proposing politically feasible steps to strengthen local democratic input regarding what surveillance
{"title":"Surveillance Policy Making by Procurement","authors":"Catherine Crump","doi":"10.2139/SSRN.2737006","DOIUrl":"https://doi.org/10.2139/SSRN.2737006","url":null,"abstract":"The Seattle police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. Following a council review that lasted literally two minutes, Oakland created a data integration center that networked together all of the city’s existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.In an age of heightened concern about the militarization of local police and surveillance technology, how is it possible for local law enforcement agencies to obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public understanding what they are doing? The answer lies in the multi-billion-dollar process of federal procurement, through which the federal government, often in the name of combatting terrorism, funnels resources to local law enforcement agencies to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions related to accountability for policy choices when the federal government influences local policing through grants but does not address all relevant concerns, and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.This article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. The case studies highlight the structural and institutional factors that lead to surveillance policy making by procurement, and elected representatives’ responses to it point the way towards policy solutions that would bring a greater measure of transparency and accountability to local surveillance policy making. The case studies also provide fodder for thinking through the way federal spending programs can generate confusion over who is responsible for policy choices, and how the federal government’s national security policies have spillover effects on the conduct of routine policing. Local communities vary greatly, in their crime rates, the competence and trustworthiness of their police departments, and in their political convictions. This article draws on the case studies to suggest that local governments have a valuable role to play in tailoring surveillance policy to local conditions. It concludes by proposing politically feasible steps to strengthen local democratic input regarding what surveillance ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"90 1","pages":"1595"},"PeriodicalIF":1.3,"publicationDate":"2016-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2737006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68280375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, Prof. Mulroy discusses an unsettled issue which arises with some frequency in the federal courts: whether the Sixth Amendment right to counsel can ever apply prior to the filing of a formal charge by a prosecutor. There are a number of situations - most notably, pre-indictment plea negotiations involving the prosecutor - where a defendant most decidedly needs the assistance of counsel, even before formal charges are filed. Language in Supreme Court cases has suggested that the right does not attach until a prosecutor files a charge in court, or the defendant appears before a magistrate. Some lower courts have relied on this language to fashion a “bright-line rule” preventing Sixth Amendment protection prior to formal charges being filed. But these Supreme Court cases were decided prior to recent rulings by the Court that a Sixth Amendment ineffective assistance of counsel claim could cover plea negotiations. The circuit courts are split on this issue, with some accepting and some rejecting the notion of a bright-line rule. This Article argues that a careful examination of the relevant Supreme Court opinions, the text of the Sixth Amendment, and the underlying purpose of the Amendment’s right to counsel all argue for a more flexible approach. It also analogizes from case law interpreting Model Rule 4.2 of the Rules of Professional Conduct, the so-called “no contact” rule. It proposes a new rule: in addition to being triggered by a formal charge or appearance before a judge, the Sixth Amendment right to counsel also applies where a prosecutor has had contact with a defendant about the substance of the case (other than as a witness), either directly or through counsel. Among other instances, this rule would apply to pre-charge negotiations about a plea deal or grant of immunity; to communications concerning the defendant’s grand jury testimony; and to custodial interrogation where the prosecutor was personally involved.
{"title":"The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel","authors":"Steven J. Mulroy","doi":"10.2139/SSRN.2821179","DOIUrl":"https://doi.org/10.2139/SSRN.2821179","url":null,"abstract":"In this Article, Prof. Mulroy discusses an unsettled issue which arises with some frequency in the federal courts: whether the Sixth Amendment right to counsel can ever apply prior to the filing of a formal charge by a prosecutor. There are a number of situations - most notably, pre-indictment plea negotiations involving the prosecutor - where a defendant most decidedly needs the assistance of counsel, even before formal charges are filed. Language in Supreme Court cases has suggested that the right does not attach until a prosecutor files a charge in court, or the defendant appears before a magistrate. Some lower courts have relied on this language to fashion a “bright-line rule” preventing Sixth Amendment protection prior to formal charges being filed. But these Supreme Court cases were decided prior to recent rulings by the Court that a Sixth Amendment ineffective assistance of counsel claim could cover plea negotiations. The circuit courts are split on this issue, with some accepting and some rejecting the notion of a bright-line rule. This Article argues that a careful examination of the relevant Supreme Court opinions, the text of the Sixth Amendment, and the underlying purpose of the Amendment’s right to counsel all argue for a more flexible approach. It also analogizes from case law interpreting Model Rule 4.2 of the Rules of Professional Conduct, the so-called “no contact” rule. It proposes a new rule: in addition to being triggered by a formal charge or appearance before a judge, the Sixth Amendment right to counsel also applies where a prosecutor has had contact with a defendant about the substance of the case (other than as a witness), either directly or through counsel. Among other instances, this rule would apply to pre-charge negotiations about a plea deal or grant of immunity; to communications concerning the defendant’s grand jury testimony; and to custodial interrogation where the prosecutor was personally involved.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"481 1","pages":"213"},"PeriodicalIF":1.3,"publicationDate":"2016-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68355565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ten years after the U.S. Supreme Court’s 2006 seminal decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the U.S. Court of Appeals for the Federal Circuit sharply divided regarding whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.This article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset of appeals in nearly 200 patent cases — representing all cases involving contested permanent injunction decisions for a 7½ year period after eBay — we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate that the Federal Circuit is generally more favorable to prevailing patentees regarding permanent injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, some implications of this and other empirical findings from the study are considered.
2006年，美国最高法院在eBay诉MercExchange案中做出了影响深远的裁决，十年之后，专利案件中禁令救济的可用性仍然备受争议。例如，在苹果和三星之间旷日持久的诉讼中，美国联邦巡回上诉法院(U.S. Court of Appeals For the Federal Circuit)的成员就是否有必要发布禁令，阻止三星继续侵犯苹果的几项智能手机专利的问题产生了严重分歧。然而，到目前为止，几乎所有关于eBay的实证研究都集中在初审法院的判决上，而不是联邦巡回法院的判决。本文代表了联邦巡回法院继eBay之后对永久禁令判决的首次全面实证研究。通过近200个专利案件的原始上诉数据集——代表了eBay之后7年半期间所有涉及有争议的永久禁令决定的案件——我们评估了联邦巡回法院对永久禁令可用性的影响。本研究的结果表明，在永久性禁令救济方面，联邦巡回法院通常比eBay之后的地区法院更有利于现行专利权人。在认定责任后颁发禁令的地方法院很有可能在上诉中得到维持，而拒绝禁令的地方法院的维持率在统计上要低得多。这表明联邦巡回法院通常倾向于采用财产规则而不是责任规则作为对未来专利侵权的补救措施。它似乎也支持了学者和其他人的主张，即联邦巡回法院作为一个处理大量专利案件的专门法院，比通才的地方法院更支持专利权人。最后，本文考虑了本研究和其他实证研究结果的一些含义。
{"title":"Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit's Application of eBay","authors":"R. Holte, Christopher B. Seaman","doi":"10.2139/ssrn.2816097","DOIUrl":"https://doi.org/10.2139/ssrn.2816097","url":null,"abstract":"Ten years after the U.S. Supreme Court’s 2006 seminal decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the U.S. Court of Appeals for the Federal Circuit sharply divided regarding whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.This article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset of appeals in nearly 200 patent cases — representing all cases involving contested permanent injunction decisions for a 7½ year period after eBay — we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate that the Federal Circuit is generally more favorable to prevailing patentees regarding permanent injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, some implications of this and other empirical findings from the study are considered.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"92 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2016-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68349988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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