Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s sound recording technologies had become so refined, ubiquitous, and economically accessible that they, and no longer music notation, had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of copyright infringement claims has grown inexorably, decade-by-decade, since the 1960s. The bases of these claims have also grown remarkably attenuated, often involving nothing more than a similar sound or a common word or two shared by two songs. This article traces developments in sound technology, popular music, and music copyright infringement litigation in the twentieth and twenty-first centuries. It argues that if courts today were more cognizant of the deep changes in the creation and musical content of popular songs since the Tin Pan Alley era of the early twentieth century, they might more confidently dispose of most music copyright infringement claims by dismissal or summary judgment.
{"title":"I Hear America Suing: Music Copyright Infringement in the Era of Electronic Sound","authors":"Charles Cronin","doi":"10.2139/SSRN.2394339","DOIUrl":"https://doi.org/10.2139/SSRN.2394339","url":null,"abstract":"Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s sound recording technologies had become so refined, ubiquitous, and economically accessible that they, and no longer music notation, had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of copyright infringement claims has grown inexorably, decade-by-decade, since the 1960s. The bases of these claims have also grown remarkably attenuated, often involving nothing more than a similar sound or a common word or two shared by two songs. This article traces developments in sound technology, popular music, and music copyright infringement litigation in the twentieth and twenty-first centuries. It argues that if courts today were more cognizant of the deep changes in the creation and musical content of popular songs since the Tin Pan Alley era of the early twentieth century, they might more confidently dispose of most music copyright infringement claims by dismissal or summary judgment.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"66 1","pages":"1187"},"PeriodicalIF":0.5,"publicationDate":"2014-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176012","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 critically examines what would seem to be, but is not, an easy free speech question: whether instrumental music falls within the scope of the First Amendment. The Supreme Court has long recognized that musical expression is “speech,” but has never analyzed why this is the case. Similarly, scholarly literature is surprisingly bereft of any comprehensive examination of whether there are sound theoretical or doctrinal foundations for treating purely instrumental music as a form of constitutionally protected expression. This Article engages this question comprehensively, and argues that there are two strong claims for the coverage of instrumental music under the First Amendment. First, instrumental music can be understood as speech because of its central role in expressing cultural, religious, nationalist, and other social values that might otherwise be at risk of government control and orthodoxy. Second, music serves a unique communicative function as a facilitator of emotional expression, experience, and autonomy. In examining these claims, the Article first surveys existing judicial and scholarly treatments of music as speech to illustrate how our understanding of the expressive value of instrumental music has been undertheorized. It then briefly catalogues historical and contemporary instances of instrumental music censorship by governments and other powerful institutions both within the United States and in other nations. First Amendment theory does not offer an obvious explanation for why instrumental music should be protected. Thus, the Article next considers the three dominant theoretical justifications for protection of expression-promotion of democratic self-governance; facilitation of the search for truth; and protection of autonomy through self-realization-and explores the possibilities for and limits of employing any of these three theories to justify protection of instrumental music. To truly understand how these speech theories might apply, however, one must first comprehend the nature of instrumental musical expression. Accordingly, this Article next discusses exactly what it is that instrumental music expresses and how it does so, and examines how those conceptualizations fit within the frameworks of the three dominant speech theories. This Part concludes with an elaboration of the claim that music is like speech because of its unique power to convey cultural and other social values and promote emotional expression and experience in its composers, performers, and listeners. Music, then, falls within both the truth-seeking and self-realization justifications for the First Amendment. In contrast, theoretical explanations for free speech grounded in democracy do not map well onto non-lyrical musical expression. Finally, this Article argues that a better understanding of the relationship between instrumental music and the First Amendment may illuminate free speech theory more broadly. First, it moves the recent discourse on
{"title":"Instrumental Music and the First Amendment","authors":"Alan K. Chen","doi":"10.2139/SSRN.2399669","DOIUrl":"https://doi.org/10.2139/SSRN.2399669","url":null,"abstract":"This Article critically examines what would seem to be, but is not, an easy free speech question: whether instrumental music falls within the scope of the First Amendment. The Supreme Court has long recognized that musical expression is “speech,” but has never analyzed why this is the case. Similarly, scholarly literature is surprisingly bereft of any comprehensive examination of whether there are sound theoretical or doctrinal foundations for treating purely instrumental music as a form of constitutionally protected expression. This Article engages this question comprehensively, and argues that there are two strong claims for the coverage of instrumental music under the First Amendment. First, instrumental music can be understood as speech because of its central role in expressing cultural, religious, nationalist, and other social values that might otherwise be at risk of government control and orthodoxy. Second, music serves a unique communicative function as a facilitator of emotional expression, experience, and autonomy. In examining these claims, the Article first surveys existing judicial and scholarly treatments of music as speech to illustrate how our understanding of the expressive value of instrumental music has been undertheorized. It then briefly catalogues historical and contemporary instances of instrumental music censorship by governments and other powerful institutions both within the United States and in other nations. First Amendment theory does not offer an obvious explanation for why instrumental music should be protected. Thus, the Article next considers the three dominant theoretical justifications for protection of expression-promotion of democratic self-governance; facilitation of the search for truth; and protection of autonomy through self-realization-and explores the possibilities for and limits of employing any of these three theories to justify protection of instrumental music. To truly understand how these speech theories might apply, however, one must first comprehend the nature of instrumental musical expression. Accordingly, this Article next discusses exactly what it is that instrumental music expresses and how it does so, and examines how those conceptualizations fit within the frameworks of the three dominant speech theories. This Part concludes with an elaboration of the claim that music is like speech because of its unique power to convey cultural and other social values and promote emotional expression and experience in its composers, performers, and listeners. Music, then, falls within both the truth-seeking and self-realization justifications for the First Amendment. In contrast, theoretical explanations for free speech grounded in democracy do not map well onto non-lyrical musical expression. Finally, this Article argues that a better understanding of the relationship between instrumental music and the First Amendment may illuminate free speech theory more broadly. First, it moves the recent discourse on ","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"66 1","pages":"381"},"PeriodicalIF":0.5,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68181620","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 work, I challenge the oft-cited, but unsupported rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of the “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule. I also discuss the erosion of the “trial-right-only” rule with regards to the Jury Trial Clause as recently demonstrated in the 2013 term in Alleyne v. United States. I advocate eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that are material to punishment and where cross-examination assists in assessing truth and veracity. In such cases, I advocate a practical application of the fundamental right to confront witnesses during felony sentencing. This work advances the discussion on this issue by proposing uniform application of the Sixth Amendment’s structurally identical Counsel, Jury Trial, and Confrontation Clauses at felony sentencing.
{"title":"Unbranding Confrontation as Only a Trial Right","authors":"Shaakirrah R. Sanders","doi":"10.2139/SSRN.2335917","DOIUrl":"https://doi.org/10.2139/SSRN.2335917","url":null,"abstract":"In this work, I challenge the oft-cited, but unsupported rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of the “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule. I also discuss the erosion of the “trial-right-only” rule with regards to the Jury Trial Clause as recently demonstrated in the 2013 term in Alleyne v. United States. I advocate eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that are material to punishment and where cross-examination assists in assessing truth and veracity. In such cases, I advocate a practical application of the fundamental right to confront witnesses during felony sentencing. This work advances the discussion on this issue by proposing uniform application of the Sixth Amendment’s structurally identical Counsel, Jury Trial, and Confrontation Clauses at felony sentencing.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"2619 1","pages":"1257"},"PeriodicalIF":0.5,"publicationDate":"2013-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2335917","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68114850","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}
Important strides are currently being made towards increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding like removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent defendants apply to removal proceedings. Competence is necessary to protect the fairness and accuracy of the proceedings, safeguard statutory and constitutional rights, uphold the prohibition against in absentia hearings, and preserve the moral dignity of the process. In addition, deportation represents an extension of the penalty phase of the criminal process, so the right to competence should apply until the end. This Article also explores potential concerns about recognizing a right to competence, such as exposing the respondent to indefinite civil commitment and forfeiting the opportunity to pursue applications that could lead to being granted legal status by the immigration court. A closer examination of these concerns suggests that they may actually be much less serious than they initially appear. Finally, the Article explores some alternatives to recognizing a right to competence and explains why they fail to provide sufficient protection.
{"title":"Incompetent but Deportable: The Case for a Right to Mental Competence in Removal Proceedings","authors":"F. Marouf","doi":"10.2139/SSRN.2318169","DOIUrl":"https://doi.org/10.2139/SSRN.2318169","url":null,"abstract":"Important strides are currently being made towards increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding like removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial of incompetent defendants apply to removal proceedings. Competence is necessary to protect the fairness and accuracy of the proceedings, safeguard statutory and constitutional rights, uphold the prohibition against in absentia hearings, and preserve the moral dignity of the process. In addition, deportation represents an extension of the penalty phase of the criminal process, so the right to competence should apply until the end. This Article also explores potential concerns about recognizing a right to competence, such as exposing the respondent to indefinite civil commitment and forfeiting the opportunity to pursue applications that could lead to being granted legal status by the immigration court. A closer examination of these concerns suggests that they may actually be much less serious than they initially appear. Finally, the Article explores some alternatives to recognizing a right to competence and explains why they fail to provide sufficient protection.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"65 1","pages":"929"},"PeriodicalIF":0.5,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68096980","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}
Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all constitute paths out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.This Article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, while complicating and countering the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the Article catalogs and then illustrates the formal and informal means by which information flows out of the state in a series of case studies. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The Article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.
{"title":"The Implausibility of Secrecy","authors":"Mark Fenster","doi":"10.2139/SSRN.2220376","DOIUrl":"https://doi.org/10.2139/SSRN.2220376","url":null,"abstract":"Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all constitute paths out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.This Article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, while complicating and countering the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the Article catalogs and then illustrates the formal and informal means by which information flows out of the state in a series of case studies. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The Article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"65 1","pages":"309"},"PeriodicalIF":0.5,"publicationDate":"2013-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68001573","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}
There are two competing approaches to determining the admissibility of expert testimony, including scientific evidence. Under the traditional, Frye approach, the question is whether the expert is relying on a theory or technique that is generally accepted in the relevant specialty fields. At one time that test was employed by the federal courts as well as 46 states. However, in 1993 in its celebrated Daubert decision, the Supreme Court construed the Federal Rules of Evidence as impliedly overturning Frye. The Court derived a new validation test from the text of Federal Rule 702. As of 2013, only a minority of courts continue to adhere to Frye while a majority of states have embraced some version of the Daubert standard. Although most states have adopted a version of the Daubert test, until recently the California Supreme Court continued to staunchly follow Frye. The California Supreme Court initially adopted the Frye test in 1976. In 1994, the year after the United States Supreme Court rendered Daubert, the California Supreme Court declined the invitation to abandon Frye. However, as more jurisdictions shifted to Daubert, in a growing number of cases advocates urged the California courts to modify their position and incorporate some elements of the Daubert approach into California jurisprudence. In November of 2012, the California Supreme Court handed down its decision in Sargon. Sargon certainly represents a step toward the Daubert approach. In Sargon, the court approvingly cited Daubert as well as the two later cases in the Daubert trilogy, Joiner and Kumho. Moreover, in its opinion the court followed many of the essential teachings of Daubert, Joiner, and Kumho. Most importantly, the substance of the analysis in Sargon is strikingly similar to the Supreme Court’s analysis in Joiner. In this light, some commentators are now declaring that California has joined the ranks of the Daubert jurisdictions. The purpose of this article is cautionary; the thesis of this article is that it is premature to proclaim that California is now a Daubert jurisdiction. To begin with, in footnote the Sargon court affirmed its commitment to Frye. Moreover, the facts in Sargon were so extreme that in future cases, attorneys will have a plausible argument for distinguishing Sargon. Finally, in Sargon the court emphasized that it was authorizing trial judges to conduct a carefully circumscribed inquiry. The court stopped well short of tasking trial judges to conduct the sort of probing inquiry that Daubert empowers federal trial judges to conduct under Federal Rule of Evidence 104(a). The California courts may have embarked on a gradual, incremental movement toward Daubert, but California is not there yet.
{"title":"Wading Into the Daubert Tide: Sargon Enterprises, Inc. v. University of Southern California","authors":"David L. Faigman, E. Imwinkelried","doi":"10.2139/SSRN.2213487","DOIUrl":"https://doi.org/10.2139/SSRN.2213487","url":null,"abstract":"There are two competing approaches to determining the admissibility of expert testimony, including scientific evidence. Under the traditional, Frye approach, the question is whether the expert is relying on a theory or technique that is generally accepted in the relevant specialty fields. At one time that test was employed by the federal courts as well as 46 states. However, in 1993 in its celebrated Daubert decision, the Supreme Court construed the Federal Rules of Evidence as impliedly overturning Frye. The Court derived a new validation test from the text of Federal Rule 702. As of 2013, only a minority of courts continue to adhere to Frye while a majority of states have embraced some version of the Daubert standard. Although most states have adopted a version of the Daubert test, until recently the California Supreme Court continued to staunchly follow Frye. The California Supreme Court initially adopted the Frye test in 1976. In 1994, the year after the United States Supreme Court rendered Daubert, the California Supreme Court declined the invitation to abandon Frye. However, as more jurisdictions shifted to Daubert, in a growing number of cases advocates urged the California courts to modify their position and incorporate some elements of the Daubert approach into California jurisprudence. In November of 2012, the California Supreme Court handed down its decision in Sargon. Sargon certainly represents a step toward the Daubert approach. In Sargon, the court approvingly cited Daubert as well as the two later cases in the Daubert trilogy, Joiner and Kumho. Moreover, in its opinion the court followed many of the essential teachings of Daubert, Joiner, and Kumho. Most importantly, the substance of the analysis in Sargon is strikingly similar to the Supreme Court’s analysis in Joiner. In this light, some commentators are now declaring that California has joined the ranks of the Daubert jurisdictions. The purpose of this article is cautionary; the thesis of this article is that it is premature to proclaim that California is now a Daubert jurisdiction. To begin with, in footnote the Sargon court affirmed its commitment to Frye. Moreover, the facts in Sargon were so extreme that in future cases, attorneys will have a plausible argument for distinguishing Sargon. Finally, in Sargon the court emphasized that it was authorizing trial judges to conduct a carefully circumscribed inquiry. The court stopped well short of tasking trial judges to conduct the sort of probing inquiry that Daubert empowers federal trial judges to conduct under Federal Rule of Evidence 104(a). The California courts may have embarked on a gradual, incremental movement toward Daubert, but California is not there yet.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"64 1","pages":"1665"},"PeriodicalIF":0.5,"publicationDate":"2013-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2213487","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67996313","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 field of genetic research has revolutionized modern medicine and will continue to do so in the years to come. For the people whose biological materials form the basis for this research, however, the research process may also lead to personal discoveries — namely, it may expose information about their health, genetic predispositions, and other gene-linked characteristics. Researchers who uncover this kind of personal genetic information are likewise confronted with the question of whether they should — or must — provide their subjects with feedback about their results. For subjects and researchers alike, the answer is unclear. Presently, there is little guidance as to these parties’ rights and responsibilities when it comes to the return of genetic results in a research setting. As a result, neither party has a clearly defined understanding of what to expect from the research relationship. This Article draws on recognized ethical and legal foundations to propose that genetic researchers should owe three limited legal duties to their research subjects regarding planning for, acquiring informed consent about, and reporting certain genetic findings. Considering the wide variation among individuals in terms of what genetic information they would like to know, this Article balances concerns for individual autonomy with the right to acquire personal health information, and it weighs those interests against the potential cost to socially beneficial genetic research. In balancing these considerations, this Article’s proposals for a limited set of duties offer a careful step toward clearly defining the rights and responsibilities of genetic researchers and their subjects.
{"title":"The Return of Results in Genetic Testing: Who Owes What to Whom, When, and Why?","authors":"Stephanie A. Alessi","doi":"10.2139/SSRN.2227667","DOIUrl":"https://doi.org/10.2139/SSRN.2227667","url":null,"abstract":"The field of genetic research has revolutionized modern medicine and will continue to do so in the years to come. For the people whose biological materials form the basis for this research, however, the research process may also lead to personal discoveries — namely, it may expose information about their health, genetic predispositions, and other gene-linked characteristics. Researchers who uncover this kind of personal genetic information are likewise confronted with the question of whether they should — or must — provide their subjects with feedback about their results. For subjects and researchers alike, the answer is unclear. Presently, there is little guidance as to these parties’ rights and responsibilities when it comes to the return of genetic results in a research setting. As a result, neither party has a clearly defined understanding of what to expect from the research relationship. This Article draws on recognized ethical and legal foundations to propose that genetic researchers should owe three limited legal duties to their research subjects regarding planning for, acquiring informed consent about, and reporting certain genetic findings. Considering the wide variation among individuals in terms of what genetic information they would like to know, this Article balances concerns for individual autonomy with the right to acquire personal health information, and it weighs those interests against the potential cost to socially beneficial genetic research. In balancing these considerations, this Article’s proposals for a limited set of duties offer a careful step toward clearly defining the rights and responsibilities of genetic researchers and their subjects.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"64 1","pages":"1697"},"PeriodicalIF":0.5,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68006980","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}
“Through the Eyes of Jurors” is the first law journal article to consider all of the major cognitive psychology studies that examine how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain language” instructions. A significant body of legal literature has examined jurors’ use and understanding of jury instructions, and many scholars have recommended methods to improve juror comprehension of instructions. This Article takes that analysis a step further, and argues that even when given “plain-language” jury instructions, jurors will still be influenced by their preconceived ideas of what the “law” is — in other words, by the preexisting schemas they have for legal concepts. Furthermore, these schemas are often legally incorrect, and findings from the social sciences suggest that — even when given plain-language jury instructions with the correct legal standard — jurors may still apply these legally inappropriate schemas. This Article synthesizes the results and underlying theories derived from those findings in order to examine the impact these schemas have on jury decisionmaking, and on jurors’ use of jury instructions, and to identify ways lawyers and judges can counteract inappropriate existing schemas and activate legally appropriate schemas before jurors are introduced to the facts they are expected to interpret. Specifically, courts should use principles of cognitive and educational psychology to develop jurors’ schemas for the applicable legal concepts to make their schemas better organized and therefore more accessible. Such schemas would allow for more thoughtful judgment and better, more accurate decisionmaking.
{"title":"Through the Eyes of Jurors: The Use of Schemas in the Application of 'Plain-Language' Jury Instructions","authors":"Sara G. Gordon","doi":"10.2139/SSRN.2133000","DOIUrl":"https://doi.org/10.2139/SSRN.2133000","url":null,"abstract":"“Through the Eyes of Jurors” is the first law journal article to consider all of the major cognitive psychology studies that examine how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain language” instructions. A significant body of legal literature has examined jurors’ use and understanding of jury instructions, and many scholars have recommended methods to improve juror comprehension of instructions. This Article takes that analysis a step further, and argues that even when given “plain-language” jury instructions, jurors will still be influenced by their preconceived ideas of what the “law” is — in other words, by the preexisting schemas they have for legal concepts. Furthermore, these schemas are often legally incorrect, and findings from the social sciences suggest that — even when given plain-language jury instructions with the correct legal standard — jurors may still apply these legally inappropriate schemas. This Article synthesizes the results and underlying theories derived from those findings in order to examine the impact these schemas have on jury decisionmaking, and on jurors’ use of jury instructions, and to identify ways lawyers and judges can counteract inappropriate existing schemas and activate legally appropriate schemas before jurors are introduced to the facts they are expected to interpret. Specifically, courts should use principles of cognitive and educational psychology to develop jurors’ schemas for the applicable legal concepts to make their schemas better organized and therefore more accessible. Such schemas would allow for more thoughtful judgment and better, more accurate decisionmaking.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"64 1","pages":"643"},"PeriodicalIF":0.5,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67934838","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 : 2013-01-01DOI: 10.5040/9781472561275.ch-011
Charles L. Knapp
The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This chapter explores the question of what it may mean today to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The chapter begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” It points out that, like the “duty to mitigate,” the “duty to read” (DTR) is not technically a “duty” but rather a limitation on a party’s ability to assert what would otherwise be available claims or defenses under the rules of contract law. Sometimes described as a “conclusive presumption,” the DTR is in practice more of a rebuttable presumption – a “presumption of knowing assent” – permitting the adhering/signing party to overcome in some situations the legal fiction that she has in fact read and understood whatever written agreement she has signed onto. The chapter next considers a variety of ways in which the DTR may be countered or overcome. These include: interpretation (often “against the drafter”); lack of “true assent” for some reason (such as forgery, lack of authority, or duress); mistake, either mutual or unilateral; fraudulent misrepresentation (or wrongful nondisclosure) of either the nature or contents of the writing, or fraud in the inducement; and other doctrines such as reasonable expectations or unconscionability. The chapter also notes and evaluates policy arguments for the DTR rule, such as the law’s desire to insulate a written agreement from later challenge (similar to the justification for the parol evidence rule); application of the estoppel principle to protect a drafter who has relied on the other party’s representations of knowing assent; and the view that adherence to an agreement can properly be seen as a sort of “blanket assent” to its contents. Having sketched the legal background of the DTR, the chapter then proceeds to examine a selection of some two dozen cases, all later than 2005, which discuss and in some cases rely on the DTR rule. In many of these cases the adhering party was indeed prevented by the DTR from defending against enforcement. In some, however, one of the defenses described above proved successful. Finally, after thus enumerating the ways in which the DTR should not be applied, the chapter concludes by asking: If the DTR is seen as essentially a “rebuttable presumption of knowing assent,” what role should that principle play in protecting a written agreement from attack of one kind or another? Assuming we trust judges and juries to perform responsibly and fairly their respective fact-finding tasks, it seems all that remains is a probably noncontroversial proposition: One who knowingly and voluntarily assents to a contract whose terms are contained in a given writing
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Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue. Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue -- can a state court commit a taking? -- while slipping in a major rewrite of takings law that would undermine the Court's recent, unanimous effort to clarify it.Second, feigned obliviousness: The plurality opinion conveniently overlooks the Court's federalism jurisprudence even as it would expand the federal courts' power over state law.Third, knowing artlessness: Despite being written as a virtuoso performance -- identifying a case the Florida Supreme Court "overlooked" -- the plurality's treatment of state law betrays surprising naivete‚ as to how state law is made, though, as it turns out, this seeming naivete‚ serves the purpose of shifting power within states from legislatures to courts. While the history and tone of Justice Scalia's close attention to beach access issues makes pique a surprisingly strong candidate for why the plurality went rogue, the more worrying explanation is the willingness of the more conservative members of the Court to expand their own power into new areas of state law without the slightest sign of support from the political branches. There is a danger that conservative attacks on the courts over decisions on controversial social issues will distract from a more basic problem: If the Court's enforcement of federalism rests on what Justice O'Connor called Congress's "underdeveloped capacity for self-restraint," we suggest that commentary should focus on the Court's own similarly underdeveloped capacity.
{"title":"Going Rogue: Stop the Beach Renourishment as an Object of Morbid Fascination","authors":"M. Doyle, Stephen J. Schnably","doi":"10.2139/SSRN.2029965","DOIUrl":"https://doi.org/10.2139/SSRN.2029965","url":null,"abstract":"Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue. Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue -- can a state court commit a taking? -- while slipping in a major rewrite of takings law that would undermine the Court's recent, unanimous effort to clarify it.Second, feigned obliviousness: The plurality opinion conveniently overlooks the Court's federalism jurisprudence even as it would expand the federal courts' power over state law.Third, knowing artlessness: Despite being written as a virtuoso performance -- identifying a case the Florida Supreme Court \"overlooked\" -- the plurality's treatment of state law betrays surprising naivete‚ as to how state law is made, though, as it turns out, this seeming naivete‚ serves the purpose of shifting power within states from legislatures to courts. While the history and tone of Justice Scalia's close attention to beach access issues makes pique a surprisingly strong candidate for why the plurality went rogue, the more worrying explanation is the willingness of the more conservative members of the Court to expand their own power into new areas of state law without the slightest sign of support from the political branches. There is a danger that conservative attacks on the courts over decisions on controversial social issues will distract from a more basic problem: If the Court's enforcement of federalism rests on what Justice O'Connor called Congress's \"underdeveloped capacity for self-restraint,\" we suggest that commentary should focus on the Court's own similarly underdeveloped capacity.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"64 1","pages":"83"},"PeriodicalIF":0.5,"publicationDate":"2012-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868431","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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