This Article argues that the rules of Internet surveillance law remain obscure and undeveloped because of the remedies Congress has chosen to enforce its statutory standards. By rejecting a suppression remedy and embracing aggressive civil penalties, Congress has ensured that courts only rarely encounter challenges to Internet surveillance practices - and when they do, the cases tend to be in civil cases between private parties that raise issues far removed from those that animated Congress to pass the statutes. As a result, the courts have not explained how the complex web of surveillance statutes apply in routine criminal cases, and the rare judicial decisions construing the statutes tend to confuse the issues, not clarify them. This article argues that Congress should add a statutory suppression remedy to lift the fog of Internet surveillance law, and that such a change would benefit both civil liberties and law enforcement interests alike.
{"title":"Lifting the 'Fog' of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law","authors":"Orin S. Kerr","doi":"10.2139/SSRN.374282","DOIUrl":"https://doi.org/10.2139/SSRN.374282","url":null,"abstract":"This Article argues that the rules of Internet surveillance law remain obscure and undeveloped because of the remedies Congress has chosen to enforce its statutory standards. By rejecting a suppression remedy and embracing aggressive civil penalties, Congress has ensured that courts only rarely encounter challenges to Internet surveillance practices - and when they do, the cases tend to be in civil cases between private parties that raise issues far removed from those that animated Congress to pass the statutes. As a result, the courts have not explained how the complex web of surveillance statutes apply in routine criminal cases, and the rare judicial decisions construing the statutes tend to confuse the issues, not clarify them. This article argues that Congress should add a statutory suppression remedy to lift the fog of Internet surveillance law, and that such a change would benefit both civil liberties and law enforcement interests alike.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68633883","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}
{"title":"Where involuntary commitment, civil liberties, and the right to mental health care collide: an overview of California's mental illness system.","authors":"Meredith Karasch","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"40883710","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 tax expenditure budget recently has come under renewed attack. Some argue that its conceptual and implementational flaws justify discontinuing its publication. This paper points out the generality of these supposedly "fatal" flaws: all the sources of information we have about government spending suffer from problems similar if not identical to those identified in the tax expenditure budget. Take, for example, the absence of an agreed-upon baseline of a "normal" tax system against which to measure "tax expenditures." A central theme of the paper is that the same baseline problem exists for several clear substitutes for tax expenditures, regulation and the non-enforcement of across-the-board rules. Even the seemingly obvious baseline of zero expenditures for determining the amount of cash subsidies can be challenged as incompletely theorized and misleading. The breadth and depth of the baseline and other problems identified in the tax expenditure budget throw into question the wisdom of excoriating it in particular. If improving the utility of information distributed about the direction and function of government is the desired end, the paper contends, one must focus on the interaction between the various information sources rather than the merits or demerits of any particular source of information. And once we do that, the argument continues, it becomes clear that the better path involves the publication of more, rather than less, information. In particular, the paper contends that it would be helpful to publish an admittedly flawed regulatory budget to serve as a companion to the tax expenditure budget.
{"title":"Truth in Government: Beyond the Tax Expenditure Budget","authors":"Julie Roin","doi":"10.2139/SSRN.350981","DOIUrl":"https://doi.org/10.2139/SSRN.350981","url":null,"abstract":"The tax expenditure budget recently has come under renewed attack. Some argue that its conceptual and implementational flaws justify discontinuing its publication. This paper points out the generality of these supposedly \"fatal\" flaws: all the sources of information we have about government spending suffer from problems similar if not identical to those identified in the tax expenditure budget. Take, for example, the absence of an agreed-upon baseline of a \"normal\" tax system against which to measure \"tax expenditures.\" A central theme of the paper is that the same baseline problem exists for several clear substitutes for tax expenditures, regulation and the non-enforcement of across-the-board rules. Even the seemingly obvious baseline of zero expenditures for determining the amount of cash subsidies can be challenged as incompletely theorized and misleading. The breadth and depth of the baseline and other problems identified in the tax expenditure budget throw into question the wisdom of excoriating it in particular. If improving the utility of information distributed about the direction and function of government is the desired end, the paper contends, one must focus on the interaction between the various information sources rather than the merits or demerits of any particular source of information. And once we do that, the argument continues, it becomes clear that the better path involves the publication of more, rather than less, information. In particular, the paper contends that it would be helpful to publish an admittedly flawed regulatory budget to serve as a companion to the tax expenditure budget.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68599871","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 paper examines internal pay disparities in American public corporations and argues that wide gaps between the top and bottom of the pay scale can, in certain circumstances, directly and adversely affect firm value, that corporate boards should be informed about these effects, and that they should, in some cases, reduce internal pay differentials to address them. In support of this thesis, it analyzes numerous empirical studies that have shown that wide disparities in corporate pay scales can adversely affect firm value. These studies demonstrate that, at many types of organizations, as internal pay differentials grow, employees and lower level managers increasingly view themselves as being unfairly compensated in comparison to more highly paid top management. This perception adversely affects employee performance, productivity and willingness to work, and thereby reduces firm value. Directors' duty of care requires that they consider the spread between the high and low end of the corporate pay scale in setting firm compensation levels and act in the corporation's best interests to reduce it if necessary to maximize firm value. Moreover, mega-grants of stock options are primarily responsible for these growing pay differentials. Corporate directors are uninformed about the real costs and benefits of these huge awards. Mega-grants of stock options to corporate managers are unjustified if their uncertain benefits are exceeded by their costs. As virtually no research has shown that mega-grants of stock options' costs exceed their benefits, directors need to more carefully determine if these programs maximize firm value. Once again, directors' duty of care obligates them to be reasonably informed about the value of these plans as that constitutes material information about their firm.
{"title":"Should Directors Reduce Executive Pay","authors":"Randall S. Thomas","doi":"10.2139/SSRN.353560","DOIUrl":"https://doi.org/10.2139/SSRN.353560","url":null,"abstract":"This paper examines internal pay disparities in American public corporations and argues that wide gaps between the top and bottom of the pay scale can, in certain circumstances, directly and adversely affect firm value, that corporate boards should be informed about these effects, and that they should, in some cases, reduce internal pay differentials to address them. In support of this thesis, it analyzes numerous empirical studies that have shown that wide disparities in corporate pay scales can adversely affect firm value. These studies demonstrate that, at many types of organizations, as internal pay differentials grow, employees and lower level managers increasingly view themselves as being unfairly compensated in comparison to more highly paid top management. This perception adversely affects employee performance, productivity and willingness to work, and thereby reduces firm value. Directors' duty of care requires that they consider the spread between the high and low end of the corporate pay scale in setting firm compensation levels and act in the corporation's best interests to reduce it if necessary to maximize firm value. Moreover, mega-grants of stock options are primarily responsible for these growing pay differentials. Corporate directors are uninformed about the real costs and benefits of these huge awards. Mega-grants of stock options to corporate managers are unjustified if their uncertain benefits are exceeded by their costs. As virtually no research has shown that mega-grants of stock options' costs exceed their benefits, directors need to more carefully determine if these programs maximize firm value. Once again, directors' duty of care obligates them to be reasonably informed about the value of these plans as that constitutes material information about their firm.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604364","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 provides a comprehensive re-analysis of one of the thorniest problems of criminal jurisprudence, when it is proper to convict a defendant who has attempted the impossible. I begin by demonstrating that, contrary to received academic and judicial opinion, the common law defense of impossibility to a charge of attempt is both well-grounded and perfectly intelligible, being capable of accurate expression in a single sentence. I then account for the confusion regarding the defense by showing how the early courts that applied it were saying one thing while doing another, and how commentators and subsequent judges became misled by focusing on what the courts said rather than what they did. After showing that the defense is intelligible, I then show that it is normatively justified as well. I do this in two steps. First, I demonstrate that there is a principled distinction between moral and criminal responsibility, that the arguments for the rejection of the impossibility defense rest on an improper conflation of the two, and that a correct understanding of the nature of criminal responsibility undermines the force of these arguments. Second, I show that there is an inherent liberal bias built into the Anglo-American criminal law that supplies a principled basis for retaining the defense. I conclude the article by proposing a definition for attempt that both encompasses the defense and grounds it on a firm theoretical basis.
{"title":"Once More unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible","authors":"John Hasnas","doi":"10.2139/SSRN.349000","DOIUrl":"https://doi.org/10.2139/SSRN.349000","url":null,"abstract":"This article provides a comprehensive re-analysis of one of the thorniest problems of criminal jurisprudence, when it is proper to convict a defendant who has attempted the impossible. I begin by demonstrating that, contrary to received academic and judicial opinion, the common law defense of impossibility to a charge of attempt is both well-grounded and perfectly intelligible, being capable of accurate expression in a single sentence. I then account for the confusion regarding the defense by showing how the early courts that applied it were saying one thing while doing another, and how commentators and subsequent judges became misled by focusing on what the courts said rather than what they did. After showing that the defense is intelligible, I then show that it is normatively justified as well. I do this in two steps. First, I demonstrate that there is a principled distinction between moral and criminal responsibility, that the arguments for the rejection of the impossibility defense rest on an improper conflation of the two, and that a correct understanding of the nature of criminal responsibility undermines the force of these arguments. Second, I show that there is an inherent liberal bias built into the Anglo-American criminal law that supplies a principled basis for retaining the defense. I conclude the article by proposing a definition for attempt that both encompasses the defense and grounds it on a firm theoretical basis.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68598745","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}
{"title":"Cloning, science and public policy.","authors":"Deborah Ortiz","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781033","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}
{"title":"What's in a name? \"Nuclear transplantation\" and the ethics of stem cell research.","authors":"Margaret R McLean","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781755","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}
{"title":"Cloning and government regulation.","authors":"Hank Greely","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781031","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}
{"title":"Cloning and federalism.","authors":"Ashutosh Bhagwat","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781035","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}
{"title":"Public policy crafted in response to public ignorance is bad public policy.","authors":"Lee Silver","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2002-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24781027","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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