A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman’s framework of “boundary management” as a jumping-off point, I conceptualize privacy harm as interference in an individual’s ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts. Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies — from automated license plate readers (ALPRs) to robots to drones.
{"title":"Regulating Real-World Surveillance","authors":"M. Kaminski","doi":"10.2139/ssrn.2681128","DOIUrl":"https://doi.org/10.2139/ssrn.2681128","url":null,"abstract":"A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman’s framework of “boundary management” as a jumping-off point, I conceptualize privacy harm as interference in an individual’s ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts. Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies — from automated license plate readers (ALPRs) to robots to drones.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"90 1","pages":"1113"},"PeriodicalIF":1.3,"publicationDate":"2015-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68253795","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}
Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory committee comprising private interests and "reduced-bias" subject matter experts; 2) relaxed procedural constraints for committee action to prevent internal committee capture; 3) and opportunities for committee participation to be worthwhile for representatives of private parties beyond the mere opportunity to advance their own interests. This Article presents recommendations based on those characteristics as to how and when legislatures may endeavor to replicate this success in other industries to improve both the legitimacy and efficacy of the regulatory process.
{"title":"Enlightened Regulatory Capture","authors":"D. Thaw","doi":"10.2139/SSRN.2298205","DOIUrl":"https://doi.org/10.2139/SSRN.2298205","url":null,"abstract":"Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory committee comprising private interests and \"reduced-bias\" subject matter experts; 2) relaxed procedural constraints for committee action to prevent internal committee capture; 3) and opportunities for committee participation to be worthwhile for representatives of private parties beyond the mere opportunity to advance their own interests. This Article presents recommendations based on those characteristics as to how and when legislatures may endeavor to replicate this success in other industries to improve both the legitimacy and efficacy of the regulatory process.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"89 1","pages":"329"},"PeriodicalIF":1.3,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2298205","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68077153","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}
Pub Date : 2013-03-01DOI: 10.4135/9781452229300.n1203
F. Schauer
I. INTRODUCTION- ISOLATING MIRANDA'S IMPORTLargely as a consequence of American television and movies, Miranda v. Arizona1 may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops.2 And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.3Among the most interesting dimensions of Miranda's worldwide fame is that the case's prominence is largely a function of the warning itself.4 Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent,5 nor on account of the underlying substance of the right to have a lawyer during interrogation,6 nor because the general public is concerned about the right to appointed counsel for the indigent.7 None of this, to put it mildly, makes for good theater. What is good theater is the ritual of the arrest, and the Miranda warning, typically given in almost exactly the terms set forth in the Supreme Court's opinion, is a prominent feature of the ritual, even apart from the role that the warning is actually designed to serve.Professor Kamisar - with his characteristic attention to detail in support of spirited argument - provides an insightful judicial and political history of the retrenching that has marked much of Miranda's history since the Supreme Court's decision in 1966.8 In lamenting Miranda's erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda,9 it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda,10 nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. u Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions.12 Once we understand the import of various pre-Miranda decisions, we can appreciate that Miranda is about the warning itself, rather than about what the warning is a warning of. And when we understand Miranda in this way, we can focus on just what role the warning is designed to serve, and what the Court in Miranda thought it was doing in specifying almost exactly the form that the warning was to take. It is precisely this focus that will be the subject of my attention in this Response.In being about a warning, Miranda is about communication. Specifically, it is about two different dimensions of communication. One of
{"title":"The Miranda Warning","authors":"F. Schauer","doi":"10.4135/9781452229300.n1203","DOIUrl":"https://doi.org/10.4135/9781452229300.n1203","url":null,"abstract":"I. INTRODUCTION- ISOLATING MIRANDA'S IMPORTLargely as a consequence of American television and movies, Miranda v. Arizona1 may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops.2 And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.3Among the most interesting dimensions of Miranda's worldwide fame is that the case's prominence is largely a function of the warning itself.4 Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent,5 nor on account of the underlying substance of the right to have a lawyer during interrogation,6 nor because the general public is concerned about the right to appointed counsel for the indigent.7 None of this, to put it mildly, makes for good theater. What is good theater is the ritual of the arrest, and the Miranda warning, typically given in almost exactly the terms set forth in the Supreme Court's opinion, is a prominent feature of the ritual, even apart from the role that the warning is actually designed to serve.Professor Kamisar - with his characteristic attention to detail in support of spirited argument - provides an insightful judicial and political history of the retrenching that has marked much of Miranda's history since the Supreme Court's decision in 1966.8 In lamenting Miranda's erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda,9 it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda,10 nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. u Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions.12 Once we understand the import of various pre-Miranda decisions, we can appreciate that Miranda is about the warning itself, rather than about what the warning is a warning of. And when we understand Miranda in this way, we can focus on just what role the warning is designed to serve, and what the Court in Miranda thought it was doing in specifying almost exactly the form that the warning was to take. It is precisely this focus that will be the subject of my attention in this Response.In being about a warning, Miranda is about communication. Specifically, it is about two different dimensions of communication. One of ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"88 1","pages":"155"},"PeriodicalIF":1.3,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70579584","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}
On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the
2013年2月20日，最高法院宣布了Gunn v. Minton一案的判决。在一宗以先前的专利诉讼中涉嫌律师错误为前提的法律渎职诉讼中，法院重新审视了法定“在”管辖权下产生的范围。这一决定的意义超越了它产生的具体背景。尽管Gunn案涉及在管辖权下产生的专利法，《美国法典》第28编第1338条，但该管辖权标准与第1331条措辞相同的标准应以完全相同的方式解释。因此，冈恩案的判决适用于所有联邦问题案件，在这些案件中，联邦问题包含在州法主张中。此外，Gunn对原则和案单管理之间的持续冲突提供了深刻的见解，这种冲突已成为最高法院在程序领域的判决的特征。法律界很期待Gunn的意见，因为法院以前的决定对所谓“联邦成分”案件的管辖范围造成了相当大的混乱。有些评论人士希望法院采用创造检验作为司法管辖权的唯一衡量标准。其他人则希望联邦成分测试能得到澄清。还有一些人，如本作者，希望法院将管辖权分析转向曾经推动联邦问题管辖权的传统基本原则。正如我在文章中所解释的那样，每个人都会对结果感到失望。冈恩案中具体的管辖权问题集中在被称为“格拉布尔检验”的第三和第四个方面，即，原告的州法索赔中包含的联邦成分是否实质性，以及对该索赔行使管辖权是否会打破国会规定的联邦法院和州法院之间的平衡。下级法院一直在努力解释和适用这两方面。有些州采用了详细和高度技术性的理论检验，导致违反直觉的结果，即否认对公认的"重大"联邦问题的管辖权。其他人则采用了一种更全面的方法，似乎是为了应用格拉布尔测试而设计的，同时避免了该测试明显的局限性。一些下级法院实际上承认管辖权的确定是主观的和推测性的，在类似的情况下，不同的法官可能得出不同的结论。虽然Gunn法院确实处理了Grable的这两个方面，但它除了支持之前对这些要素的迭代之外，几乎没有做什么，既没有为这些要素提供辩护，也没有提供适用这些要素的原则方法。因此，在冈恩案之前，关于联邦司法标准的许多困惑在很大程度上仍未得到解决。在本文中，我首先评估了管辖权下产生的成文法的发展，从其19世纪的根源到法院最近的判决。在这里，我将考察由最高法院在基础诉讼案件中发展起来的基本原则指南针，并由大法官卡多佐(Cardozo)在Meridian的Gully v. First Nat Bank一案中简洁地综合。在该案中，最高法院认可了一种统一的管辖权理论，该理论侧重于联邦问题在案件中的作用，询问案件是否真正涉及联邦法律，因为如果案件确实涉及联邦法律，管辖权的行使将与国会为联邦问题案件提供论坛的意图内在地一致。以这一基本原则模型为基础，我接着考察了最近出现的案例，并表明，从20世纪80年代开始，指南针迷失了方向，取而代之的是一堆越来越复杂的理论测试，与逻辑和成熟的司法原则脱节。在这里，焦点从争议的联邦性质转移到一种政策驱动的模式，这种模式严重偏重于案件管理问题。冈恩为最高法院提供了一个重新获得指南针的机会，或者，至少，提供一个可理解的地图，帮助下级联邦法院在司法创造的迷宫中导航。但是，本院错过了这个机会。相反，最高法院继续沿着一条偏离管辖权基本原则的曲折的理论道路前进，其结果往往与国会规定的为解释和适用联邦法律原则提供一个联邦论坛的目标不符。
{"title":"A Modified Theory of the Law of Federal Courts: The Case of Arising under Jurisdiction","authors":"S. Grossi","doi":"10.2139/SSRN.2223523","DOIUrl":"https://doi.org/10.2139/SSRN.2223523","url":null,"abstract":"On February 20, 2013, the Supreme Court announced its decision in Gunn v. Minton. There the Court revisited the scope of statutory “arising under” jurisdiction in the context of a legal malpractice suit premised on alleged attorney errors committed in a prior patent litigation. The significance of the decision transcends the specific context in which it arose. Although Gunn involved patent law arising under jurisdiction, 28 U.S.C. §1338, that jurisdictional standard is interpreted in precisely the same manner as the identically worded §1331 standard. Hence, the decision in Gunn applies to a full range of federal question cases in which a federal issue is embedded in a state-law claim. In addition, Gunn provides insight into the ongoing clash between principle and docket-management concerns that has become so characteristic of Supreme Court decisions in the realm of procedure.The Gunn opinion was much anticipated by the legal community since prior decisions by the Court had generated considerable confusion as to the scope of arising under jurisdiction in so-called “federal-ingredient” cases. Some commentators hoped that the Court would adopt the creation test as the exclusive measure of jurisdiction. Others hoped for a clarification of the federal-ingredient test. Still others, like this author, hoped that the Court would redirect the jurisdictional analysis to the traditional fundamental principles that once animated federal question jurisdiction. As I explain in my article, everyone will be disappointed by the result. The specific jurisdictional issue in Gunn focused on what had come to be known as the third and fourth prongs of the “Grable test,” namely, whether the federal ingredient embedded in the plaintiff’s state-law claim was substantial and whether the exercise of jurisdiction over that claim would upset the congressionally mandated balance between federal and state courts. Lower courts had been struggling with the interpretation and application of both prongs. Some had adopted detailed and highly technical doctrinal tests that led to counterintuitive results where jurisdiction was denied over concededly “significant” federal questions. Others had adopted a more holistic approach, seemingly designed to apply Grable test and, at the same time, avoid that test’s obvious strictures.Some lower courts actually confessed that the jurisdictional determination was subjective and speculative and that, under similar circumstances, different judges might reach different conclusions. While the Gunn Court did address both Grable prongs, it did little other than endorse its previous iterations of those elements, providing neither a defense for them nor a principled method through which they might be applied. Thus, much of the confusion over federal jurisdictional standards that preceded Gunn remains largely unresolved.In this article, I begin by assessing the development of statutory arising under jurisdiction from its nineteenth century roots to the ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"88 1","pages":"961"},"PeriodicalIF":1.3,"publicationDate":"2013-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68005108","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 attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of "new discretion" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called "communities" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.
{"title":"Unpacking New Policing: Confessions of a Former Neighborhood District Attorney","authors":"Alafair S. Burke","doi":"10.2139/SSRN.436580","DOIUrl":"https://doi.org/10.2139/SSRN.436580","url":null,"abstract":"This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of \"new discretion\" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called \"communities\" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism. This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"78 1","pages":"985"},"PeriodicalIF":1.3,"publicationDate":"2012-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68781435","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}
Pub Date : 2012-06-01DOI: 10.4135/9781452229843.n2
R. Post
It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes' famous injunction that "[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true."1 Although lawyers love words and language, "the real justification of a rule of law," Holmes argued, "is that it helps to bring about a social end which we desire."2 Holmes' advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment "test." We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to "translate our [First Amendment] words into the facts for which they stand." The illuminating contribution of Bruce E.H. Johnson and Sarah K. Duran3 seems fortunately almost immune from this affliction. Strategic Lawsuits Against Public Participation (SLAPPs) are theoretically interesting precisely because they illustrate the disjunction between legal words and social ends. Plaintiffs bring SLAPP suits to enforce rights created by substantive legal doctrine. Substantive legal doctrine, especially when subject to constitutional standards that determine whether particular speech acts should receive First Amendment immunity, ought accurately to reflect our values. At first blush, therefore, SLAPP suits ought not to be problematic; defendants should prevail whenever constitutional standards provide that their speech deserves constitutional protection. This way of thinking, however, does not pay sufficient attention to how legal standards actually function. It fails to appreciate the transaction costs associated with litigation enforcing substantive doctrine. Defending even an unmeritorious suit can be costly and timeconsuming, and this expense will likely discourage otherwise protected participation in public discussion. The anti-SLAPP statutes Johnson and Duran discuss are designed to address and nullify such transaction costs. They not only shift attorneys' fees, but they also create pathways for the "prompt and inexpensive" resolution of SLAPP suits.4 Johnson and Duran invite us to theorize the actual behavioral effects of enforcing substantive First Amendment standards; they direct our attention to the reality that
能被《华盛顿法律评论》这样有思想、有见地的评论员阅读和参与是一种难得的荣幸。参与到这种范围和强度的对话中是令人振奋的。我非常感谢《华盛顿法律评论》、Ronald K.L. Collins和David Skover以及华盛顿大学法学院使这次研讨会成为可能。当我读到这次研讨会的投稿时，我想起了奥利弗·温德尔·霍姆斯(Oliver Wendell Holmes)的著名训令:“我们必须思考事物而不是语言，或者至少我们必须不断地将我们的语言转化为它们所代表的事实，如果我们要坚持真实和真实的话。”虽然律师喜欢文字和语言，但霍姆斯认为，“法治的真正理由在于，它有助于实现我们所希望的社会目标。”福尔摩斯的建议是要密切关注我们的法律词汇是否实际上服务于我们的社会目的。在第一修正案的判例中，词语和词尾之间的脱节最为明显。我们受到第一修正案肥大症的困扰。教义无休止地、毫无意义地扩散。在每个角落都有另一个令人困惑的第一修正案“测试”。我们几乎从来没有停下来问过，这些不一致的抽象教条实际上是为了什么社会目的服务的。我们很少花时间“把我们的(第一修正案)文字翻译成它们所代表的事实”。幸运的是，布鲁斯·e·h·约翰逊和萨拉·k·杜兰的富有启发性的贡献似乎几乎没有受到这种困扰。反对公众参与的战略诉讼(SLAPPs)在理论上是有趣的，因为它们说明了法律用语与社会目的之间的脱节。原告提起SLAPP诉讼是为了执行实体法原则所赋予的权利。实体法理论，特别是在确定特定言论行为是否应获得第一修正案豁免的宪法标准的情况下，应该准确地反映我们的价值观。因此，乍一看，SLAPP诉讼应该没有问题;只要宪法标准规定被告的言论应受到宪法保护，被告就应占上风。然而，这种思维方式没有对法律标准的实际作用给予足够的重视。它未能认识到与执行实体原则的诉讼相关的交易成本。即使是为不值得的诉讼辩护也可能是昂贵和耗时的，而且这种费用可能会阻碍原本受保护的公众讨论的参与。Johnson和Duran讨论的反slapp法规旨在解决和消除此类交易成本。它们不仅降低了律师费，而且还为SLAPP诉讼的“迅速和廉价”解决创造了途径约翰逊和杜兰邀请我们理论化执行第一修正案实质性标准的实际行为影响;它们将我们的注意力引向教义背后的现实。第一修正案的实质性规则应该考虑第一修正案权利诉讼的交易成本，这是一种深刻的见解。它最终源于福尔摩斯启发的法律现实主义。约翰逊和杜兰关注的是执行第一修正案原则的成本如何影响公众话语的实际参与。美国最高法院系统地以这种方式进行推理的第一个判决是《纽约时报公司诉沙利文案》(New York Times Co. v. Sullivan)，该案确立了“实际恶意”规则，正是为了使诽谤诉讼的交易成本无效它设计了实际恶意规则，以预测和消除诽谤责任的普通和其他宪法上可辩护的实质性规则的“寒蝉效应”。约翰逊和杜兰分析的反slapp法规是为了达到完全相同的结果而制定的立法干预措施反slapp法规预见并消除了第一修正案诉讼所产生的寒蝉效应。…
{"title":"Understanding the First Amendment","authors":"R. Post","doi":"10.4135/9781452229843.n2","DOIUrl":"https://doi.org/10.4135/9781452229843.n2","url":null,"abstract":"It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes' famous injunction that \"[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.\"1 Although lawyers love words and language, \"the real justification of a rule of law,\" Holmes argued, \"is that it helps to bring about a social end which we desire.\"2 Holmes' advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment \"test.\" We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to \"translate our [First Amendment] words into the facts for which they stand.\" The illuminating contribution of Bruce E.H. Johnson and Sarah K. Duran3 seems fortunately almost immune from this affliction. Strategic Lawsuits Against Public Participation (SLAPPs) are theoretically interesting precisely because they illustrate the disjunction between legal words and social ends. Plaintiffs bring SLAPP suits to enforce rights created by substantive legal doctrine. Substantive legal doctrine, especially when subject to constitutional standards that determine whether particular speech acts should receive First Amendment immunity, ought accurately to reflect our values. At first blush, therefore, SLAPP suits ought not to be problematic; defendants should prevail whenever constitutional standards provide that their speech deserves constitutional protection. This way of thinking, however, does not pay sufficient attention to how legal standards actually function. It fails to appreciate the transaction costs associated with litigation enforcing substantive doctrine. Defending even an unmeritorious suit can be costly and timeconsuming, and this expense will likely discourage otherwise protected participation in public discussion. The anti-SLAPP statutes Johnson and Duran discuss are designed to address and nullify such transaction costs. They not only shift attorneys' fees, but they also create pathways for the \"prompt and inexpensive\" resolution of SLAPP suits.4 Johnson and Duran invite us to theorize the actual behavioral effects of enforcing substantive First Amendment standards; they direct our attention to the reality that ","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"87 1","pages":"549"},"PeriodicalIF":1.3,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70584819","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}
Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decision-making. Too often, though, that challenge is considered only from an ex ante perspective, treating uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions which are iterative or similar can provide significant opportunities for learning. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decision-making, while minimizing the key weaknesses of each. After highlighting the benefits of a learning-while-doing approach for natural resource management, this paper briefly addresses how management agencies might be encouraged to adopt such an approach.
{"title":"Precaution, Science, and Learning While Doing in Natural Resource Management","authors":"H. Doremus","doi":"10.2139/SSRN.982203","DOIUrl":"https://doi.org/10.2139/SSRN.982203","url":null,"abstract":"Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decision-making. Too often, though, that challenge is considered only from an ex ante perspective, treating uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions which are iterative or similar can provide significant opportunities for learning. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decision-making, while minimizing the key weaknesses of each. After highlighting the benefits of a learning-while-doing approach for natural resource management, this paper briefly addresses how management agencies might be encouraged to adopt such an approach.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"82 1","pages":"547"},"PeriodicalIF":1.3,"publicationDate":"2007-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67923512","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}
Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner. The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions. All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.
{"title":"Jurisdiction and Merits","authors":"H. Wasserman","doi":"10.2139/SSRN.680565","DOIUrl":"https://doi.org/10.2139/SSRN.680565","url":null,"abstract":"Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the \"affecting commerce\" element under the Sherman Act, and the state action requirement in constitutional actions. Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner. The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions. All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"80 1","pages":"643"},"PeriodicalIF":1.3,"publicationDate":"2005-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67797530","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 chimes in on the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.
{"title":"On Apology and Consilience","authors":"E. O'Connor, Douglas H. Yarn","doi":"10.2139/SSRN.320110","DOIUrl":"https://doi.org/10.2139/SSRN.320110","url":null,"abstract":"This article chimes in on the current debate about the proper relationship between apology and the law. Several states are considering legislation designed to shield apologies from the courtroom, and mediators are increasing their focus on the importance of apologies. The article develops an evolutionary economic analysis of apology that combines the tools of economics, game theory and biology to more fully understand its role in dispute resolution. When the analysis is applied to the uses of apology before and at trial, a more sophisticated understanding of the relationship between apology and the law emerges.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"77 1","pages":"1121-1192"},"PeriodicalIF":1.3,"publicationDate":"2002-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.320110","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68573470","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 discusses whether a State has sovereign immunity from claims for just compensation. The article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide just compensation every time the State takes private property for public use. A State may be able to meet that obligation through a non-judicial compensation scheme. If a State fails to establish an adequate non-judicial scheme for providing just compensation, the State's remedial obligation falls upon the State's courts. A State's courts thereby play an important role in enabling the State to meet its due process obligations. Unlike a State's own courts, the federal courts cannot enable a State to meet the State's due process obligations. Thus, the existence of a federal-court remedy does not excuse the State's failure to provide its own remedies. By the same token, the absence of a federal-court remedy for a State's failure to pay constitutionally required just compensation does not imply the absence of a remedy in the State's own courts. For this reason, the Supreme Court case law indicating that States are immune from just-compensation suits brought in federal court does not support recognizing a similar immunity in a State's own courts.
{"title":"The Asymmetry of State Sovereign Immunity","authors":"R. Seamon","doi":"10.2139/SSRN.271791","DOIUrl":"https://doi.org/10.2139/SSRN.271791","url":null,"abstract":"This article discusses whether a State has sovereign immunity from claims for just compensation. The article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide just compensation every time the State takes private property for public use. A State may be able to meet that obligation through a non-judicial compensation scheme. If a State fails to establish an adequate non-judicial scheme for providing just compensation, the State's remedial obligation falls upon the State's courts. A State's courts thereby play an important role in enabling the State to meet its due process obligations. Unlike a State's own courts, the federal courts cannot enable a State to meet the State's due process obligations. Thus, the existence of a federal-court remedy does not excuse the State's failure to provide its own remedies. By the same token, the absence of a federal-court remedy for a State's failure to pay constitutionally required just compensation does not imply the absence of a remedy in the State's own courts. For this reason, the Supreme Court case law indicating that States are immune from just-compensation suits brought in federal court does not support recognizing a similar immunity in a State's own courts.","PeriodicalId":46514,"journal":{"name":"Washington Law Review","volume":"6 1","pages":"1067"},"PeriodicalIF":1.3,"publicationDate":"2001-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68271539","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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