The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.
{"title":"Government Lawyers in the Trump Administration","authors":"W. Wendel","doi":"10.2139/SSRN.2906422","DOIUrl":"https://doi.org/10.2139/SSRN.2906422","url":null,"abstract":"The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45675052","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 is the technical abstract to Patriarchy, Not Hierarchy. It contains normality analysis, item pools, and the "Grid" model structural equation model results. The paper "Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases" to which these Appendices apply is available at https://ssrn.com/abstract=2768341
{"title":"Patriarchy, Not Hierarchy: Appendix","authors":"Eric R Carpenter","doi":"10.2139/SSRN.2881375","DOIUrl":"https://doi.org/10.2139/SSRN.2881375","url":null,"abstract":"This is the technical abstract to Patriarchy, Not Hierarchy. It contains normality analysis, item pools, and the \"Grid\" model structural equation model results. \u0000 \u0000The paper \"Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases\" to which these Appendices apply is available at https://ssrn.com/abstract=2768341","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2016-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68414542","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}
Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners. In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a preliminary matter, that the registration bar on scandalous marks should be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within in the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registration — and content in broadcast media — are evaluated: by considering the context of the marketplace.
{"title":"Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)","authors":"Megan M. Carpenter","doi":"10.2139/SSRN.2872286","DOIUrl":"https://doi.org/10.2139/SSRN.2872286","url":null,"abstract":"Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners. In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a preliminary matter, that the registration bar on scandalous marks should be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within in the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registration — and content in broadcast media — are evaluated: by considering the context of the marketplace.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2016-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68406654","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}
Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in the process, and providing little incentive for organizers and owners to improve their crowd management practices. Additionally, ad hoc crowd management efforts on the part of a few concerned promoters and venues have done little to reduce the risk of crowd-related injuries in cities and states as a whole. In this paper, I argue that state and local adoption of crowd management statutes is the only remaining solution that can effectively reduce the number of crowd crush injuries and fatalities in the United States each year. Because there are currently no such laws in this country, I propose a model statute that draws upon fundamental principles of crowd science in requiring event organizers and venue owners to take a series of relatively simple steps both in advance and during large gatherings that will drastically reduce the likelihood of crowd crush.
{"title":"Far from the Madding Crowd: A Statutory Solution to Crowd Crush","authors":"Tracy Hresko Pearl","doi":"10.2139/SSRN.2738169","DOIUrl":"https://doi.org/10.2139/SSRN.2738169","url":null,"abstract":"Crowd-related injuries and deaths occur with surprising frequency in the United States. In recent years, crowd members in the United States have sustained significant injuries and even fatalities at concerts, sporting events, “doorbuster” sales, nightclubs, and large festivals. While some of these incidents have prompted victims to file negligence suits against event organizers and venue owners, common law has proven to be ineffective at addressing “crowd crush.” Indeed, courts have repeatedly held for defendants in these cases, making a series of scientific and legal errors in the process, and providing little incentive for organizers and owners to improve their crowd management practices. Additionally, ad hoc crowd management efforts on the part of a few concerned promoters and venues have done little to reduce the risk of crowd-related injuries in cities and states as a whole. In this paper, I argue that state and local adoption of crowd management statutes is the only remaining solution that can effectively reduce the number of crowd crush injuries and fatalities in the United States each year. Because there are currently no such laws in this country, I propose a model statute that draws upon fundamental principles of crowd science in requiring event organizers and venue owners to take a series of relatively simple steps both in advance and during large gatherings that will drastically reduce the likelihood of crowd crush.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2016-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68280834","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}
For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is as far as either group went, until recently.This is the first attempt at a comprehensive review of a wide variety of new business organizations that have arisen in recent years to remedy the market’s failure to deliver business organizations responsive to the complaints of either lawyers or of clients.The “New Models of Legal Practice” described here typically offer a new value proposition for lawyers and clients. For lawyers, New Models offer better work-life balance and more control over other aspects of their work lives — in exchange for which lawyers typically (though not invariably) shoulder more risk, giving up a guaranteed salary, to be paid instead only for the hours they work. For clients, New Models typically drive down legal fees by sharply diminishing overhead through elimination of expensive real estate and the high cost of training new lawyers, and (again) dispensing with guaranteed salaries.
{"title":"Disruptive Innovation: New Models of Legal Practice","authors":"Joan C. Williams, Aaron Platt, Jessica Lee","doi":"10.2139/SSRN.2601133","DOIUrl":"https://doi.org/10.2139/SSRN.2601133","url":null,"abstract":"For decades, lawyers have been complaining that they hate working at law firms, and clients have expressed increasing frustration with high legal fees. But complaining is as far as either group went, until recently.This is the first attempt at a comprehensive review of a wide variety of new business organizations that have arisen in recent years to remedy the market’s failure to deliver business organizations responsive to the complaints of either lawyers or of clients.The “New Models of Legal Practice” described here typically offer a new value proposition for lawyers and clients. For lawyers, New Models offer better work-life balance and more control over other aspects of their work lives — in exchange for which lawyers typically (though not invariably) shoulder more risk, giving up a guaranteed salary, to be paid instead only for the hours they work. For clients, New Models typically drive down legal fees by sharply diminishing overhead through elimination of expensive real estate and the high cost of training new lawyers, and (again) dispensing with guaranteed salaries.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2015-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2601133","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68218996","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}
I defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. This is, in part, a jurisprudential thesis about what counts as “legally binding standards,” one that I shall defend by reference to the most plausible account of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent, including New York v. U.S., Heller, Hobby Lobby, Shelby County, and others.
{"title":"Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature","authors":"B. Leiter","doi":"10.2139/SSRN.2547972","DOIUrl":"https://doi.org/10.2139/SSRN.2547972","url":null,"abstract":"I defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. This is, in part, a jurisprudential thesis about what counts as “legally binding standards,” one that I shall defend by reference to the most plausible account of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent, including New York v. U.S., Heller, Hobby Lobby, Shelby County, and others.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68199620","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}
Almost twenty years ago, the Supreme Court in BMW v. Gore invoked the Due Process Clause for the first time to invalidate a punitive damages award as excessive. Since then, the Court has issued a handful of decisions that further refine Gore’s tripartite guidepost framework. In this article, we draw on a ten-year span of reported state and federal punitive damages decisions in an attempt to evaluate how lower courts have understood and implemented this constitutionalization of punitive damages law. Ours is not a normative analysis about whether the Court should or should not have federalized punitive damages. Rather, we examined our sample of cases to assess three of the Court’s punitive damages due process objectives. First, the guideposts were intended to provide clear and predictable ex ante standards regarding the potential monetary consequences of misconduct. Second, the uniform guidepost standards sought to prevent arbitrary or disparate treatment of punitive damages among the states. Third, the guideposts were designed to curb what the Court perceived as erratically high punitive damages awards. We evaluated and coded each punitive damages case in our collection to test the efficacy of the guidepost analysis in accomplishing each of these goals. Our 507 case sample suggests a high degree of uniformity nationwide in the process by which courts conduct the review of punitive damages awards. Less clear, however, is whether that heightened level of judicial review significantly reduced the inconsistency or unpredictability of punitive damages awards overall.
{"title":"Constitutional Constraints on Punitive Damages: Clarity, Consistency, and the Outlier Dilemma","authors":"Laura J. Hines, N. Hines","doi":"10.2139/SSRN.2404629","DOIUrl":"https://doi.org/10.2139/SSRN.2404629","url":null,"abstract":"Almost twenty years ago, the Supreme Court in BMW v. Gore invoked the Due Process Clause for the first time to invalidate a punitive damages award as excessive. Since then, the Court has issued a handful of decisions that further refine Gore’s tripartite guidepost framework. In this article, we draw on a ten-year span of reported state and federal punitive damages decisions in an attempt to evaluate how lower courts have understood and implemented this constitutionalization of punitive damages law. Ours is not a normative analysis about whether the Court should or should not have federalized punitive damages. Rather, we examined our sample of cases to assess three of the Court’s punitive damages due process objectives. First, the guideposts were intended to provide clear and predictable ex ante standards regarding the potential monetary consequences of misconduct. Second, the uniform guidepost standards sought to prevent arbitrary or disparate treatment of punitive damages among the states. Third, the guideposts were designed to curb what the Court perceived as erratically high punitive damages awards. We evaluated and coded each punitive damages case in our collection to test the efficacy of the guidepost analysis in accomplishing each of these goals. Our 507 case sample suggests a high degree of uniformity nationwide in the process by which courts conduct the review of punitive damages awards. Less clear, however, is whether that heightened level of judicial review significantly reduced the inconsistency or unpredictability of punitive damages awards overall.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2015-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2404629","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183678","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 study of federal court decisionmaking sheds new insight on the links among judicial outcomes, judicial ideology and demographic factors. We ask whether characteristics of a jurist other than ideology, including age, race, gender and work experience, can affect results in the context of the nation’s most frequently litigated administrative law dispute – social security disability claims. Over ten thousand social security disability cases are resolved each year in the federal court system. As a consequence, almost every district court judge and magistrate decides a significant number of such appeals from claimants each year. Social security cases by and large are similar, turning most frequently on claims of mental illness and muscular skeletal pain. There is ample room for discretion among ALJs and federal judges in determining whether or not an applicant is entitled to benefits when the claim turns on the amount of pain or on the presence of debilitating mental illness. Thus, this is the first study to assess and compare the decisionmaking of virtually all district court judges (and magistrates) resolving nearly identical challenges. The results are remarkable both in what they showed and did not show. We reach three principal conclusions. First, decisionmaking patterns among district court judges and magistrates both reveal the same kind of inconsistencies that plague ALJ adjudication more generally. Inspector General reports and testimony before Congress have focused on the variance in ALJ grant rates as reasons to reform the SSA adjudication system. Thus, while ALJs have been attacked repeatedly for such inconsistencies, district court decisionmaking fares little better. The results of an SSDI appeal may turn more on the hap of which judge or magistrate is slated to review the appeal more than on the merits of the case. Second, if the cases are similar, the question arises as to what explains the difference in outcomes. Again, the results are striking in that the different outcomes cannot be explained by the sociological factors that others have investigated. No correlation can be drawn between results and the race, gender, seniority, and prior job experience of the jurist. Nor can they be explained by geography or the percentage of disabled within the region. And, there was only a modest correlation between judicial ideology as measured by the politics of the appointing judge and the judicial decision – conservative judges tended to uphold more appeals. In other words, sociological factors evidently played far less of a role in deciding SSDI and SSI cases that one would have expected.Third, although the sociological attributes did not explain much of the variation in resolution of the cases, we noted a substantial correlation between remand rates and the circuit in which the judges and magistrates sat. Remand rates from both judges and magistrates in the Tenth, Seventh, and Ninth Circuits, for instance, were almost double those from judg
{"title":"Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals","authors":"Harold J. Krent, S. Morris","doi":"10.2139/SSRN.2530158","DOIUrl":"https://doi.org/10.2139/SSRN.2530158","url":null,"abstract":"This study of federal court decisionmaking sheds new insight on the links among judicial outcomes, judicial ideology and demographic factors. We ask whether characteristics of a jurist other than ideology, including age, race, gender and work experience, can affect results in the context of the nation’s most frequently litigated administrative law dispute – social security disability claims. Over ten thousand social security disability cases are resolved each year in the federal court system. As a consequence, almost every district court judge and magistrate decides a significant number of such appeals from claimants each year. Social security cases by and large are similar, turning most frequently on claims of mental illness and muscular skeletal pain. There is ample room for discretion among ALJs and federal judges in determining whether or not an applicant is entitled to benefits when the claim turns on the amount of pain or on the presence of debilitating mental illness. Thus, this is the first study to assess and compare the decisionmaking of virtually all district court judges (and magistrates) resolving nearly identical challenges. The results are remarkable both in what they showed and did not show. We reach three principal conclusions. First, decisionmaking patterns among district court judges and magistrates both reveal the same kind of inconsistencies that plague ALJ adjudication more generally. Inspector General reports and testimony before Congress have focused on the variance in ALJ grant rates as reasons to reform the SSA adjudication system. Thus, while ALJs have been attacked repeatedly for such inconsistencies, district court decisionmaking fares little better. The results of an SSDI appeal may turn more on the hap of which judge or magistrate is slated to review the appeal more than on the merits of the case. Second, if the cases are similar, the question arises as to what explains the difference in outcomes. Again, the results are striking in that the different outcomes cannot be explained by the sociological factors that others have investigated. No correlation can be drawn between results and the race, gender, seniority, and prior job experience of the jurist. Nor can they be explained by geography or the percentage of disabled within the region. And, there was only a modest correlation between judicial ideology as measured by the politics of the appointing judge and the judicial decision – conservative judges tended to uphold more appeals. In other words, sociological factors evidently played far less of a role in deciding SSDI and SSI cases that one would have expected.Third, although the sociological attributes did not explain much of the variation in resolution of the cases, we noted a substantial correlation between remand rates and the circuit in which the judges and magistrates sat. Remand rates from both judges and magistrates in the Tenth, Seventh, and Ninth Circuits, for instance, were almost double those from judg","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2014-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68193688","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}
Surveillance methods in the United States operate under the general principle that “use precedes regulation.” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be realized. In the period between “initial use” and “regulation,” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor) and the exclusionary rule’s good-faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective. This Article introduces an alternative method to control the costs of regulatory delay: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government "adoption" of a method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation which, in turn, helps curb the rising costs of regulatory delay.
{"title":"The Forgotten Right to Be Secure","authors":"Luke M. Milligan","doi":"10.2139/SSRN.2302850","DOIUrl":"https://doi.org/10.2139/SSRN.2302850","url":null,"abstract":"Surveillance methods in the United States operate under the general principle that “use precedes regulation.” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be realized. In the period between “initial use” and “regulation,” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor) and the exclusionary rule’s good-faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective. This Article introduces an alternative method to control the costs of regulatory delay: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government \"adoption\" of a method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation which, in turn, helps curb the rising costs of regulatory delay.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2302850","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68081151","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 the 2013-14 term, the U.S. Supreme Court will consider the legality of a Michigan Constitutional amendment banning affirmative action. Traditionally, educational diversity has been the only compelling state interest that satisfies strict scrutiny in affirmative action challenges. This Article provides additional support for the interest of educational diversity, and proposes three additional compelling state interests for courts to consider. Support for these compelling state interests comes directly from detailed quantitative and qualitative analyses of empirical data collected from Michigan Law students, relating to their preferences for diversity, perceptions of campus climate, and professional aspirations. These findings indicate that educational diversity should remain a compelling state interest, and that courts should also consider the importance of (1) avoiding racial isolation, (2) promoting service to underserved communities, and (3) facilitating diversity in American leadership.
{"title":"Empirically Derived Compelling State Interests in Affirmative Action Jurisprudence","authors":"Meera E. Deo","doi":"10.2139/SSRN.2315787","DOIUrl":"https://doi.org/10.2139/SSRN.2315787","url":null,"abstract":"In the 2013-14 term, the U.S. Supreme Court will consider the legality of a Michigan Constitutional amendment banning affirmative action. Traditionally, educational diversity has been the only compelling state interest that satisfies strict scrutiny in affirmative action challenges. This Article provides additional support for the interest of educational diversity, and proposes three additional compelling state interests for courts to consider. Support for these compelling state interests comes directly from detailed quantitative and qualitative analyses of empirical data collected from Michigan Law students, relating to their preferences for diversity, perceptions of campus climate, and professional aspirations. These findings indicate that educational diversity should remain a compelling state interest, and that courts should also consider the importance of (1) avoiding racial isolation, (2) promoting service to underserved communities, and (3) facilitating diversity in American leadership.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2315787","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68095031","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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