When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (FISA Court), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has largely missed a critical feature of the way the FISA Court works. As this Article will show, since 9/11, the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional — and entirely different — role of “rulemaker.” This is the first scholarly examination of this dichotomy and its implications for reform. Further, the Article is particularly timely in providing an assessment of the recently enacted USA Freedom Act of 2015, Congress’ attempt to reform the Court. I argue that, viewed through the lens of the Court’s dual roles, the scholarly and public conversation has fallen short in two important respects. First, it has failed to give the Court sufficient credit for its laudable performance as gatekeeper, and second, it has ignored the implications that the gatekeeper/rulemaker dichotomy has for reform. As a result, I conclude that the USA Freedom Act is not only woefully inadequate to remedy the problems that it targets but also fails entirely to address additional problems with the FISA Court. In light of these conclusions, the USA Freedom Act represents a missed opportunity. In not fully appreciating or accounting for the unique challenges that the Court’s rulemaking function poses, the Act does not go nearly far enough in bolstering the Court’s rulemaking competence. Moreover, the Act neglects (as has the public debate) a critical area for reform: ensuring sufficient flow of information from the executive branch to the FISA Court. I therefore explore the nature of this challenge and offer some additional reform ideas for consideration.
{"title":"The Two Faces of the Foreign Intelligence Surveillance Court","authors":"E. Berman","doi":"10.2139/SSRN.2250123","DOIUrl":"https://doi.org/10.2139/SSRN.2250123","url":null,"abstract":"When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (FISA Court), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has largely missed a critical feature of the way the FISA Court works. As this Article will show, since 9/11, the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional — and entirely different — role of “rulemaker.” This is the first scholarly examination of this dichotomy and its implications for reform. Further, the Article is particularly timely in providing an assessment of the recently enacted USA Freedom Act of 2015, Congress’ attempt to reform the Court. I argue that, viewed through the lens of the Court’s dual roles, the scholarly and public conversation has fallen short in two important respects. First, it has failed to give the Court sufficient credit for its laudable performance as gatekeeper, and second, it has ignored the implications that the gatekeeper/rulemaker dichotomy has for reform. As a result, I conclude that the USA Freedom Act is not only woefully inadequate to remedy the problems that it targets but also fails entirely to address additional problems with the FISA Court. In light of these conclusions, the USA Freedom Act represents a missed opportunity. In not fully appreciating or accounting for the unique challenges that the Court’s rulemaking function poses, the Act does not go nearly far enough in bolstering the Court’s rulemaking competence. Moreover, the Act neglects (as has the public debate) a critical area for reform: ensuring sufficient flow of information from the executive branch to the FISA Court. I therefore explore the nature of this challenge and offer some additional reform ideas for consideration.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"58 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84890416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What marketing, contracts, healthcare — specifically informed consent and mandatory ultrasounds — have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective — e.g., how much information the communicator discloses — or on the information itself, but surprisingly, not much on the receiver’s perspective.This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely bombard us with their “products” daily resulting in our own time and monetary loss. Just to name a few, without recognizing the right to attention, contract formation and informed consent are hollow and superfluous: contracting parties have no meeting of the mind and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills as though their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.This paper proposes legislation to recognize the right to attention as a statutory right, or alternatively, suggests that the courts recognize the right to attention as a common law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights include, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right not to receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right not to be required to receive information against one’s will.This paper is the first to identify the right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This paper hopes to identify and illuminate the right to attention in hope to generate further discussion and exploration of this novel bundle of rights.
{"title":"The Right to Attention","authors":"J. Tran","doi":"10.2139/SSRN.2600463","DOIUrl":"https://doi.org/10.2139/SSRN.2600463","url":null,"abstract":"What marketing, contracts, healthcare — specifically informed consent and mandatory ultrasounds — have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective — e.g., how much information the communicator discloses — or on the information itself, but surprisingly, not much on the receiver’s perspective.This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely bombard us with their “products” daily resulting in our own time and monetary loss. Just to name a few, without recognizing the right to attention, contract formation and informed consent are hollow and superfluous: contracting parties have no meeting of the mind and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills as though their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.This paper proposes legislation to recognize the right to attention as a statutory right, or alternatively, suggests that the courts recognize the right to attention as a common law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights include, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right not to receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right not to be required to receive information against one’s will.This paper is the first to identify the right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This paper hopes to identify and illuminate the right to attention in hope to generate further discussion and exploration of this novel bundle of rights.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"71 1","pages":"9"},"PeriodicalIF":0.8,"publicationDate":"2015-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73361805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Modern society is driven by data. Data storage is practically unlimited with today’s technology, and analytical tools make it very easy to find patterns and make predictions in a way that is very useful for private businesses and governments. These uses of digital data also raise considerable privacy issues that are of great concern to consumers. In this article, we present and analyze the results of an extensive survey that we conducted to explore what people know, what people do, and what people want, when it comes to privacy online. Our survey is the first comprehensive examination of the intersection of knowledge and opinions among the survey participants concerning online privacy, law, and the data practices of both the private sector and the government. Our survey results indicate that consumers often want more options than the market gives them. Over 80% of our survey participants, for example, indicated that on some occasion they have submitted information online when they wished that they did not have to do so. One of the possible reasons why consumers still participate in these markets is that they do not have any meaningful alternatives. The private sector currently has very little incentive to provide these alternatives because consumers have been responding to unattractive business practices with complacency. Responses to our survey also indicate a low level of trust of the government as a data collector and data keeper. Our results indicate that significant changes are needed to increase consumer engagement in the online marketplace and improve trust between the government and its citizens. These improvements should begin by empowering users and giving them more control over their digital data, and we present ambitious proposals to this end. The long-term solution that we propose would involve an overhaul of current data privacy laws, and the creation of a profile clearinghouse that would serve a similar purpose as credit reporting bureaus. Through this clearinghouse, consumers could view and challenge most information that private businesses and the government hold about them. Dramatic changes are necessary in order to ensure that consumers can have empowering and engaging experiences in today’s world of digital data.
{"title":"A Comprehensive Empirical Study of Data Privacy, Trust, and Consumer Autonomy","authors":"J. Kesan, C. Hayes, Masooda N. Bashir","doi":"10.2139/SSRN.2576346","DOIUrl":"https://doi.org/10.2139/SSRN.2576346","url":null,"abstract":"Modern society is driven by data. Data storage is practically unlimited with today’s technology, and analytical tools make it very easy to find patterns and make predictions in a way that is very useful for private businesses and governments. These uses of digital data also raise considerable privacy issues that are of great concern to consumers. In this article, we present and analyze the results of an extensive survey that we conducted to explore what people know, what people do, and what people want, when it comes to privacy online. Our survey is the first comprehensive examination of the intersection of knowledge and opinions among the survey participants concerning online privacy, law, and the data practices of both the private sector and the government. Our survey results indicate that consumers often want more options than the market gives them. Over 80% of our survey participants, for example, indicated that on some occasion they have submitted information online when they wished that they did not have to do so. One of the possible reasons why consumers still participate in these markets is that they do not have any meaningful alternatives. The private sector currently has very little incentive to provide these alternatives because consumers have been responding to unattractive business practices with complacency. Responses to our survey also indicate a low level of trust of the government as a data collector and data keeper. Our results indicate that significant changes are needed to increase consumer engagement in the online marketplace and improve trust between the government and its citizens. These improvements should begin by empowering users and giving them more control over their digital data, and we present ambitious proposals to this end. The long-term solution that we propose would involve an overhaul of current data privacy laws, and the creation of a profile clearinghouse that would serve a similar purpose as credit reporting bureaus. Through this clearinghouse, consumers could view and challenge most information that private businesses and the government hold about them. Dramatic changes are necessary in order to ensure that consumers can have empowering and engaging experiences in today’s world of digital data.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"48 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2015-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72524407","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications — including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic communications is enough to give the NSA the right to store that data until it is able to decrypt or decode it.Through this provision, the NSA is automatically treating all electronic communications from U.S. citizens that are hidden or obscured through encryption — for whatever reason — as suspicious, a direct descendant of the “nothing-to-hide” family of privacy minimization arguments. The ubiquity of electronic communication in the United States and elsewhere has led to the widespread use of encryption, the vast majority of it for innocuous purposes. This Article argues that the mere encryption by individuals of their electronic communications is not alone a basis for individualized suspicion. Moreover, this Article asserts that the NSA’s policy amounts to a suspicionless search and seizure. This program is therefore in direct conflict with the fundamental principles underlying the Fourth Amendment, specifically the protection of individuals from unwarranted government power and the establishment of the reciprocal trust between citizen and government that is necessary for a healthy democracy.
{"title":"Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance","authors":"Jeffrey L. Vagle, Jeffrey L. Vagle","doi":"10.31228/osf.io/3g85p","DOIUrl":"https://doi.org/10.31228/osf.io/3g85p","url":null,"abstract":"Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications — including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic communications is enough to give the NSA the right to store that data until it is able to decrypt or decode it.Through this provision, the NSA is automatically treating all electronic communications from U.S. citizens that are hidden or obscured through encryption — for whatever reason — as suspicious, a direct descendant of the “nothing-to-hide” family of privacy minimization arguments. The ubiquity of electronic communication in the United States and elsewhere has led to the widespread use of encryption, the vast majority of it for innocuous purposes. This Article argues that the mere encryption by individuals of their electronic communications is not alone a basis for individualized suspicion. Moreover, this Article asserts that the NSA’s policy amounts to a suspicionless search and seizure. This program is therefore in direct conflict with the fundamental principles underlying the Fourth Amendment, specifically the protection of individuals from unwarranted government power and the establishment of the reciprocal trust between citizen and government that is necessary for a healthy democracy.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"34 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2015-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78539032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of deliberation that Eskridge and Ferejohn espouse, courts must adhere more closely to the compromises encoded in the statute’s text, paying particular attention to the context and history of each individual provision. Courts should hesitate before moving too far towards the boundaries of the text’s possible meaning. Venturing beyond those boundaries altogether is even more troubling. In the absence of an agency that spurs public deliberation about the meaning of the APA, administrative common law that contradicts or ignores the APA should be presumed to be illegitimate.
{"title":"Superstatute Theory and Administrative Common Law","authors":"K. Kovacs","doi":"10.2139/SSRN.2386025","DOIUrl":"https://doi.org/10.2139/SSRN.2386025","url":null,"abstract":"This article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of deliberation that Eskridge and Ferejohn espouse, courts must adhere more closely to the compromises encoded in the statute’s text, paying particular attention to the context and history of each individual provision. Courts should hesitate before moving too far towards the boundaries of the text’s possible meaning. Venturing beyond those boundaries altogether is even more troubling. In the absence of an agency that spurs public deliberation about the meaning of the APA, administrative common law that contradicts or ignores the APA should be presumed to be illegitimate.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"18 1","pages":"8"},"PeriodicalIF":0.8,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75410260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools that improve and decline the most with the new ranking. This paper provides ranks for all 194 ABA accredited law schools that U.S. News included in its rankings released in 2014, including the 47 schools that U.S. News put in its “unranked” category.
本文回到了备受讨论的法学院排名问题。《美国新闻与世界报道》包含了各种各样的因素，其中一些因素被批评为与未来学生关心或应该关心什么无关，而本文则关注三个变量。它们是旨在捕捉学生整体素质的入学学生的LSAT分数中位数;在毕业后9个月内从事全职、永久的JD要求工作的毕业生百分比(另一项分析将学校资助的职位和独立从业者排除在该变量之外);以及每所学校的主要法律评论被引用的次数，该评论旨在捕捉一所学校最近的声誉。它对这些变量进行排序，取平均值得到一个新的排名，然后将这些新排名与《美国新闻与世界报道》(U.S. News & World Report)在2014年3月提供的147所学校的排名进行比较。它在新的排名中列出了进步和下降最大的学校。本文提供了《美国新闻与世界报道》2014年发布的所有194所经美国律师协会认证的法学院的排名，其中包括47所被《美国新闻与世界报道》列入“未排名”类别的法学院。
{"title":"Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations","authors":"A. Brophy","doi":"10.2139/SSRN.2456032","DOIUrl":"https://doi.org/10.2139/SSRN.2456032","url":null,"abstract":"This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools that improve and decline the most with the new ranking. This paper provides ranks for all 194 ABA accredited law schools that U.S. News included in its rankings released in 2014, including the 47 schools that U.S. News put in its “unranked” category.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"16 1","pages":"6"},"PeriodicalIF":0.8,"publicationDate":"2014-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88230263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-05-11DOI: 10.1093/acprof:oso/9780198743095.003.0007
D. Fox, Alex Stein
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action. This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.
{"title":"Dualism and Doctrine","authors":"D. Fox, Alex Stein","doi":"10.1093/acprof:oso/9780198743095.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198743095.003.0007","url":null,"abstract":"What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are \"mental\" or \"physical.\" The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action. This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"87 1","pages":"975"},"PeriodicalIF":0.8,"publicationDate":"2014-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75778982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Responding to Justice Scalia’s provocative questioning during oral argument in the same-sex marriage cases, I contend in this Essay that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that, in the words of Professor Alexander Bickel, the Court’s recognition of this right “will — in time, but in a rather immediate foreseeable future — gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible groundings for such a ruling: first, substantive due process; second, heightened-scrutiny equal protection; and third, rational-basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. In my judgment, however, the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.
{"title":"Evolving Values, Animus, and Same-Sex Marriage","authors":"Daniel O. Conkle","doi":"10.4324/9781315091464-6","DOIUrl":"https://doi.org/10.4324/9781315091464-6","url":null,"abstract":"Responding to Justice Scalia’s provocative questioning during oral argument in the same-sex marriage cases, I contend in this Essay that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that, in the words of Professor Alexander Bickel, the Court’s recognition of this right “will — in time, but in a rather immediate foreseeable future — gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible groundings for such a ruling: first, substantive due process; second, heightened-scrutiny equal protection; and third, rational-basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. In my judgment, however, the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"14 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88965515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay offers a progressive critique of civil recourse theory, arguing that Goldberg and Zipursky present too rosy a picture of contemporary tort law that misses the built-in bias embedded in many prevailing doctrines. A fundamental limitation of G and Z’s theory is that it takes no account of the importance of group identity in tort law’s historical construction of wrongs and injuries and fails to detect the skewing of interests that currently receive protection under the law. As classical legal theorists whose primary aim is to reveal the inner logic of tort law, G and Z make little attempt to theorize the impact of cultural polarization and differing perspectives on the complex body of U.S. tort law, suffer from a status quo bias, and are largely oblivious to the theoretical contributions of feminist and critical scholars. The main protagonist of civil recourse theory – the “empowered” individual who seeks vindication of his rights – is a fictional, privatized character who bears little resemblance to the many disempowered injured persons for whom tort law has yet to deliver on its promise of redress for harms suffered. The essay focuses on harms of subordination (domestic violence and sexual harassment), reproductive injury and relational injury as specific examples where civil recourse theory falls short of its goal of describing and explaining the contours of torts.
{"title":"Beneath the Surface of Civil Recourse Theory","authors":"Martha Chamallas","doi":"10.2139/SSRN.2304723","DOIUrl":"https://doi.org/10.2139/SSRN.2304723","url":null,"abstract":"This essay offers a progressive critique of civil recourse theory, arguing that Goldberg and Zipursky present too rosy a picture of contemporary tort law that misses the built-in bias embedded in many prevailing doctrines. A fundamental limitation of G and Z’s theory is that it takes no account of the importance of group identity in tort law’s historical construction of wrongs and injuries and fails to detect the skewing of interests that currently receive protection under the law. As classical legal theorists whose primary aim is to reveal the inner logic of tort law, G and Z make little attempt to theorize the impact of cultural polarization and differing perspectives on the complex body of U.S. tort law, suffer from a status quo bias, and are largely oblivious to the theoretical contributions of feminist and critical scholars. The main protagonist of civil recourse theory – the “empowered” individual who seeks vindication of his rights – is a fictional, privatized character who bears little resemblance to the many disempowered injured persons for whom tort law has yet to deliver on its promise of redress for harms suffered. The essay focuses on harms of subordination (domestic violence and sexual harassment), reproductive injury and relational injury as specific examples where civil recourse theory falls short of its goal of describing and explaining the contours of torts.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"65 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81174255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Internet, computing, and telecommunications industries are ripe for a collision between the worlds of intellectual property and standardization. Many technologies in these industries are covered by patents, and some of these patented technologies are essential to standards necessary for interoperability. Many standard-setting organizations (SSOs) adopt IP rules that require participants in the standard-setting process to disclose essential patents or promise to license essential patents on fair, reasonable, and nondiscriminatory (FRAND) terms to implementers of the standard. However, many SSOs also state that the SSO will not get involved in licensing disputes. Thus, it is left to the patent owner and the implementer of the standard to work through their differences, which sometimes results in generalist judges resolving cutting edge technology issues with potentially far-reaching impacts on consumers.We examine the theoretical foundations of FRAND commitments and analyze recent case law to expose the limited ways that theories grounded in patent, antitrust, and contract can apply to problems concerning the FRAND commitment. We note that a contract-based theory offers a good approach in many situations, but there are significant limitations to contract theory as applied to FRAND commitments. In particular, contract theory fails to effectively address the problem of enforcing FRAND commitments after an essential patent has been transferred.In this Article, we propose a novel theory for applying property law to FRAND commitments. As recent work by Merrill and Smith on the property and contract interface demonstrates, there are a number of areas of law that cannot be characterized as purely “in rem” or “in personam,” and in our view, this includes patents in the context of standards. Our property approach thus emphasizes the FRAND commitment as creating something analogous to a servitude under real property law, but our approach also acknowledges the importance of contract law principles to address many other issues.To preserve the viability of FRAND commitments, we have two main recommendations: (1) courts should view FRAND commitments as having traits of both property and contract and apply our proposed theory that FRAND commitments create a servitude that runs with the patent; and (2) courts and adjudicative agencies should reject efforts to impose injunctions on the use of essential patents when the infringer must use the patent to comply with the standard. Injunctions against the use of SEPs could have more harmful effects on consumers and competition than injunctions against the use of non-SEPs, and by making a FRAND commitment, the patent owner is stating that damages would be adequate to compensate for a loss of exclusivity. We thus urge courts to view a FRAND commitment as converting a property rule into a liability rule. If these two recommendations are adopted, companies that manufacture products that conform to technical standards wi
{"title":"FRAND's Forever: Standards, Patent Transfers, and Licensing Commitments","authors":"J. Kesan, C. Hayes","doi":"10.2139/SSRN.2226533","DOIUrl":"https://doi.org/10.2139/SSRN.2226533","url":null,"abstract":"The Internet, computing, and telecommunications industries are ripe for a collision between the worlds of intellectual property and standardization. Many technologies in these industries are covered by patents, and some of these patented technologies are essential to standards necessary for interoperability. Many standard-setting organizations (SSOs) adopt IP rules that require participants in the standard-setting process to disclose essential patents or promise to license essential patents on fair, reasonable, and nondiscriminatory (FRAND) terms to implementers of the standard. However, many SSOs also state that the SSO will not get involved in licensing disputes. Thus, it is left to the patent owner and the implementer of the standard to work through their differences, which sometimes results in generalist judges resolving cutting edge technology issues with potentially far-reaching impacts on consumers.We examine the theoretical foundations of FRAND commitments and analyze recent case law to expose the limited ways that theories grounded in patent, antitrust, and contract can apply to problems concerning the FRAND commitment. We note that a contract-based theory offers a good approach in many situations, but there are significant limitations to contract theory as applied to FRAND commitments. In particular, contract theory fails to effectively address the problem of enforcing FRAND commitments after an essential patent has been transferred.In this Article, we propose a novel theory for applying property law to FRAND commitments. As recent work by Merrill and Smith on the property and contract interface demonstrates, there are a number of areas of law that cannot be characterized as purely “in rem” or “in personam,” and in our view, this includes patents in the context of standards. Our property approach thus emphasizes the FRAND commitment as creating something analogous to a servitude under real property law, but our approach also acknowledges the importance of contract law principles to address many other issues.To preserve the viability of FRAND commitments, we have two main recommendations: (1) courts should view FRAND commitments as having traits of both property and contract and apply our proposed theory that FRAND commitments create a servitude that runs with the patent; and (2) courts and adjudicative agencies should reject efforts to impose injunctions on the use of essential patents when the infringer must use the patent to comply with the standard. Injunctions against the use of SEPs could have more harmful effects on consumers and competition than injunctions against the use of non-SEPs, and by making a FRAND commitment, the patent owner is stating that damages would be adequate to compensate for a loss of exclusivity. We thus urge courts to view a FRAND commitment as converting a property rule into a liability rule. If these two recommendations are adopted, companies that manufacture products that conform to technical standards wi","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"121 1","pages":"10"},"PeriodicalIF":0.8,"publicationDate":"2013-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77093582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"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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