In recent years, police have increasingly made use of consumer genomic databases to solve a variety of crimes, from long-cold serial killings to assaults. They do so frequently without judicial oversight per the Fourth Amendment's warrant requirement by using consumer genomic platforms, which store hundreds of thousands or millions of user genomic profiles and enable law enforcement to infer the identity of distant genomic relatives who may be criminal suspects. This Essay puts this practice into context given recent legal and technological developments. As for the law, the Supreme Court in United States v. Carpenter has suggested that technologically driven and expansive datasets may be entitled to the full suite of Fourth Amendment protections. As for technology, we describe here the development of a novel technology that allows users to engage in genomic analysis in a secured environment without making such information available to a third party. Taken together, we present a possible technological solution to ensuring Fourth Amendment protections for direct-to-consumer genomic data.
{"title":"FAMILIAL SEARCHES, THE FOURTH AMENDMENT, AND GENOMIC CONTROL.","authors":"Jacob S Sherkow, Natalie Ram, Carl A Gunter","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In recent years, police have increasingly made use of consumer genomic databases to solve a variety of crimes, from long-cold serial killings to assaults. They do so frequently without judicial oversight per the Fourth Amendment's warrant requirement by using consumer genomic platforms, which store hundreds of thousands or millions of user genomic profiles and enable law enforcement to infer the identity of distant genomic relatives who may be criminal suspects. This Essay puts this practice into context given recent legal and technological developments. As for the law, the Supreme Court in <i>United States v. Carpenter</i> has suggested that technologically driven and expansive datasets may be entitled to the full suite of Fourth Amendment protections. As for technology, we describe here the development of a novel technology that allows users to engage in genomic analysis in a secured environment without making such information available to a third party. Taken together, we present a possible technological solution to ensuring Fourth Amendment protections for direct-to-consumer genomic data.</p>","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10624417/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71487340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Lawmakers are looking for Obamacare savings in the wrong place. Removing sick people from risk pools or reducing health plan benefits — the focus of lawmakers’ attention — would harm vulnerable populations. Instead, reform should target the $750 billion worth of unnecessary care prescribed by doctors, consented to by patients, and paid for by insurers. This Article unravels the mystery of why the insurance market has failed to excise this waste on its own. A toxic combination of mismatched legal incentives, market failures, and industry norms, means that the insurance market cannot solve the problem absent intervention. But a simple nudge could help: steering decision-makers away from unnecessary care while protecting the autonomy of doctors and patients. Insurers should require by contract that providers receive an automated warning before ordering commonly overused interventions. Such computer-driven nudges have been effective in other contexts and would reduce premiums without resorting to the means currently being explored. Because insurers lack appropriate incentives to nudge, the law must mandate it.
{"title":"The Health Insurer Nudge","authors":"W. Epstein","doi":"10.2139/ssrn.3009823","DOIUrl":"https://doi.org/10.2139/ssrn.3009823","url":null,"abstract":"Lawmakers are looking for Obamacare savings in the wrong place. Removing sick people from risk pools or reducing health plan benefits — the focus of lawmakers’ attention — would harm vulnerable populations. Instead, reform should target the $750 billion worth of unnecessary care prescribed by doctors, consented to by patients, and paid for by insurers. This Article unravels the mystery of why the insurance market has failed to excise this waste on its own. A toxic combination of mismatched legal incentives, market failures, and industry norms, means that the insurance market cannot solve the problem absent intervention. But a simple nudge could help: steering decision-makers away from unnecessary care while protecting the autonomy of doctors and patients. Insurers should require by contract that providers receive an automated warning before ordering commonly overused interventions. Such computer-driven nudges have been effective in other contexts and would reduce premiums without resorting to the means currently being explored. Because insurers lack appropriate incentives to nudge, the law must mandate it.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68473896","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 challenges the recent turn to absolutism in free speech doctrine, and the scheme of "protected" and "unprotected" speech that it enshrines. A more historically and theoretically sound approach to free speech would take into account the actual manner in which expression is alleged to cause harm. If the process of causing harm does not engage the rational processes of the audience, then the strict rule against content regulation is not appropriate. The article offers an original, revisionist perspective on the leading case on content regulation, Police Department v. Mosley, 408 U.S. 92 (1972), which was authored by Justice Thurgood Marshall, for whom the author clerked in OT85. The harm-principle theory draws on prior work she has done on the understanding of equality and liberty. It seeks to restore the freedom of speech to a more comfortable place in the jurisprudence of ordered liberty, while still taking account of the unique features of speech that give rise to special concerns in a democracy. The theory anticipates that, as society recognizes new kinds of speech-based harm arising out of its evolving understandings of equal status and liberty, the Court is mistaken to erect a categorical barrier to all regulations that might address those harms. This article offers a principled way to avoid that mistake.
这篇文章挑战了最近言论自由主义转向绝对主义的趋势，以及它所推崇的“受保护”和“不受保护”言论的格局。从历史和理论上讲，对言论自由的更合理的方法应该考虑到言论被指控造成伤害的实际方式。如果造成伤害的过程没有涉及受众的理性过程，那么严格的内容监管规则是不合适的。本文对内容监管的主要案例——警察部门诉莫斯利案(Police Department v. Mosley, 408 U.S. 92(1972))——提供了一个原创的、修正主义的视角，该案例由瑟古德·马歇尔大法官撰写，作者在1985年担任他的助理。伤害原则理论借鉴了她之前在理解平等和自由方面所做的工作。它力求将言论自由恢复到有秩序的自由的法理中一个更舒适的位置，同时仍然考虑到在民主国家引起特别关注的言论的独特特征。该理论预计，随着社会认识到由于其对平等地位和自由的不断发展的理解而产生的新型基于言论的危害，法院错误地为可能解决这些危害的所有法规设置了明确的障碍。本文提供了一种避免这种错误的原则性方法。
{"title":"The Harm Principle and Free Speech","authors":"Rebecca L. Brown","doi":"10.2139/SSRN.2584080","DOIUrl":"https://doi.org/10.2139/SSRN.2584080","url":null,"abstract":"This article challenges the recent turn to absolutism in free speech doctrine, and the scheme of \"protected\" and \"unprotected\" speech that it enshrines. A more historically and theoretically sound approach to free speech would take into account the actual manner in which expression is alleged to cause harm. If the process of causing harm does not engage the rational processes of the audience, then the strict rule against content regulation is not appropriate. The article offers an original, revisionist perspective on the leading case on content regulation, Police Department v. Mosley, 408 U.S. 92 (1972), which was authored by Justice Thurgood Marshall, for whom the author clerked in OT85. The harm-principle theory draws on prior work she has done on the understanding of equality and liberty. It seeks to restore the freedom of speech to a more comfortable place in the jurisprudence of ordered liberty, while still taking account of the unique features of speech that give rise to special concerns in a democracy. The theory anticipates that, as society recognizes new kinds of speech-based harm arising out of its evolving understandings of equal status and liberty, the Court is mistaken to erect a categorical barrier to all regulations that might address those harms. This article offers a principled way to avoid that mistake.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2016-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68212987","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 Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens' Initiative Implementation Oversight Commission. First, the Dual Path Initiative Framework includes three distinct stages for each initiative. The first stage occurs when only a brief description of the proposal, providing the purpose of the initiative and the general outline of the solution to be adopted, is circulated for signatures. This process is designed to gauge public support for the general objective of the proposal's backers. When sufficient signatures have been obtained and the process moves to the second stage, the proponents and legislature have the opportunity to draft legislative or constitutional language to submit to the people for a vote. During this second stage, lawmakers and ballot measure proponents can negotiate so that a compromise can be passed as a statute through the traditional legislative process or a mutually acceptable constitutional amendment can be submitted for a vote. Even if there is no agreement reached, this period provides flexibility so that drafting errors can be identified, likely consequences of the new policy can be assessed, and language can be revised. At the end of this time, if the proponents of change are not satisfied with the legislature's response, they can submit to the people a detailed proposal designed to advance the purpose of the originally-qualified brief policy. The third stage occurs after a popular initiative is enacted through a vote of the people. Popular constitutional initiatives will expire after ten years and must be re-enacted; popular statutory initiatives will also be less durable because the legislature may, after a period of time, amend or repeal any such initiative. Second, we propose a Citizens' Initiative Implementation Oversight Commission (CIIOC) to ensure that enacted initiatives are faithfully implemented by state and local officials, who might otherwise work to obstruct or delay ballot measures they opposed. The CIIOC will include a representative named by each successful popular initiative, and it will have the ability to conduct hearings, produce reports, participate in administrative proceedings, and even pursue litigation. A statewide citizens' oversight commission is a novel reform, not currently used by any state.
{"title":"The Dual Path Initiative Framework","authors":"E. Garrett, Mathew D. McCubbins","doi":"10.2139/SSRN.918075","DOIUrl":"https://doi.org/10.2139/SSRN.918075","url":null,"abstract":"In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens' Initiative Implementation Oversight Commission. First, the Dual Path Initiative Framework includes three distinct stages for each initiative. The first stage occurs when only a brief description of the proposal, providing the purpose of the initiative and the general outline of the solution to be adopted, is circulated for signatures. This process is designed to gauge public support for the general objective of the proposal's backers. When sufficient signatures have been obtained and the process moves to the second stage, the proponents and legislature have the opportunity to draft legislative or constitutional language to submit to the people for a vote. During this second stage, lawmakers and ballot measure proponents can negotiate so that a compromise can be passed as a statute through the traditional legislative process or a mutually acceptable constitutional amendment can be submitted for a vote. Even if there is no agreement reached, this period provides flexibility so that drafting errors can be identified, likely consequences of the new policy can be assessed, and language can be revised. At the end of this time, if the proponents of change are not satisfied with the legislature's response, they can submit to the people a detailed proposal designed to advance the purpose of the originally-qualified brief policy. The third stage occurs after a popular initiative is enacted through a vote of the people. Popular constitutional initiatives will expire after ten years and must be re-enacted; popular statutory initiatives will also be less durable because the legislature may, after a period of time, amend or repeal any such initiative. Second, we propose a Citizens' Initiative Implementation Oversight Commission (CIIOC) to ensure that enacted initiatives are faithfully implemented by state and local officials, who might otherwise work to obstruct or delay ballot measures they opposed. The CIIOC will include a representative named by each successful popular initiative, and it will have the ability to conduct hearings, produce reports, participate in administrative proceedings, and even pursue litigation. A statewide citizens' oversight commission is a novel reform, not currently used by any state.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2006-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67879514","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":"Federal funding of human embryonic stem cell research: an institutional examination.","authors":"Ryan Fujikawa","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26587841","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}
Twenty-five years ago, Federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. The nature of such inventions, however, increasingly conflicts with the implications of rules created for mechanical products. In particular, across five disparate doctrines, courts are struggling with the question of whether the definition of a biotech invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology. A doorknob is a doorknob, regardless of whether it is made of wood or glass. A doorknob has no parts we can't identify, and there is no hint that the doorknob may be integrating with the door in ways we never dreamed of. Can we really say, however, that an antibody is an antibody, no matter how it works or what materials it is made out of? This article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.
{"title":"Rethinking Rights in Biospace","authors":"Robin C. Feldman","doi":"10.2139/SSRN.668721","DOIUrl":"https://doi.org/10.2139/SSRN.668721","url":null,"abstract":"Twenty-five years ago, Federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. The nature of such inventions, however, increasingly conflicts with the implications of rules created for mechanical products. In particular, across five disparate doctrines, courts are struggling with the question of whether the definition of a biotech invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology. A doorknob is a doorknob, regardless of whether it is made of wood or glass. A doorknob has no parts we can't identify, and there is no hint that the doorknob may be integrating with the door in ways we never dreamed of. Can we really say, however, that an antibody is an antibody, no matter how it works or what materials it is made out of? This article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2005-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67790170","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 reviews the statistical literature on the effects of money on voter initiative and referendum campaigns. It discusses the main findings in the literature and identifies the shortcomings in statistical methods and results. It then discusses how one might approach these shortcomings with a new research design, with specific reference to work by Professor Thomas Stratmann.
{"title":"How Much Does Money Matter in a Direct Democracy?","authors":"J. de Figueiredo","doi":"10.2139/ssrn.730964","DOIUrl":"https://doi.org/10.2139/ssrn.730964","url":null,"abstract":"This paper reviews the statistical literature on the effects of money on voter initiative and referendum campaigns. It discusses the main findings in the literature and identifies the shortcomings in statistical methods and results. It then discusses how one might approach these shortcomings with a new research design, with specific reference to work by Professor Thomas Stratmann.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2005-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67814306","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}
Even in the wake of the most sweeping campaign finance reform law to be enacted in three decades, further significant reform is inevitable. Special interest money continues to flow through loopholes in the Act, and the Presidential Election Campaign Fund is near collapse. The next reform should encourage broader participation in the political process by individual citizens, both to dilute the power of special interests and to serve independent democratic values that recent Supreme Court jurisprudence has identified as vital to meaningful reform. We propose adopting a refundable tax credit of $100/taxpayer for political contributions to federal candidates and national parties; the credit would be targeted to lower- and middle-income Americans. A refundable tax credit is equivalent to giving each eligible citizen up to $100 annually to use for political contributions. We also present data about the relative importance of political contributions by special interests (corporate, labor and other PACs) and individuals that undermine many of the assumptions on which past reform has been based and that have not been discussed in the legal literature. The data clearly show that small contributions by individuals are the dominant source of money in campaigns, and that the influence of special interest money is subtle, appearing to "purchase" benefits like access, a place on the agenda, and minor policy details. Working from an accurate picture of who really pays for politics, and drawing from the experience at the federal and state levels with similar tax refund programs, we present the tax credit as a reform that is simple, easy to administer, and likely to improve political participation by average Americans. Thus, our proposal, unlike the complicated voucher plan with anonymity put forward by Ackerman and Ayres, is likely to be adopted by Congress; moreover, it will appeal to a bipartisan consensus because it mixes public funding with a decentralized allocation mechanism using a tax subsidy.
{"title":"Paying for Politics","authors":"J. D. Figueiredo, E. Garrett","doi":"10.2139/SSRN.578304","DOIUrl":"https://doi.org/10.2139/SSRN.578304","url":null,"abstract":"Even in the wake of the most sweeping campaign finance reform law to be enacted in three decades, further significant reform is inevitable. Special interest money continues to flow through loopholes in the Act, and the Presidential Election Campaign Fund is near collapse. The next reform should encourage broader participation in the political process by individual citizens, both to dilute the power of special interests and to serve independent democratic values that recent Supreme Court jurisprudence has identified as vital to meaningful reform. We propose adopting a refundable tax credit of $100/taxpayer for political contributions to federal candidates and national parties; the credit would be targeted to lower- and middle-income Americans. A refundable tax credit is equivalent to giving each eligible citizen up to $100 annually to use for political contributions. We also present data about the relative importance of political contributions by special interests (corporate, labor and other PACs) and individuals that undermine many of the assumptions on which past reform has been based and that have not been discussed in the legal literature. The data clearly show that small contributions by individuals are the dominant source of money in campaigns, and that the influence of special interest money is subtle, appearing to \"purchase\" benefits like access, a place on the agenda, and minor policy details. Working from an accurate picture of who really pays for politics, and drawing from the experience at the federal and state levels with similar tax refund programs, we present the tax credit as a reform that is simple, easy to administer, and likely to improve political participation by average Americans. Thus, our proposal, unlike the complicated voucher plan with anonymity put forward by Ackerman and Ayres, is likely to be adopted by Congress; moreover, it will appeal to a bipartisan consensus because it mixes public funding with a decentralized allocation mechanism using a tax subsidy.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2004-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67767928","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 judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the "most meritorious" and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates' likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side (these days, the Republicans) claims that it is proposing certain candidates based on merit, while the other (the Democrats) claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on certain key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past the impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians' claims of merit. Being able to test those claims helps make transparent the occasions on which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a "merit" standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology. The Article runs such a tournament using data on opinions authored by active federal circuit court judges from one common time period: the beginning of 1998 to the end of 2000. The focus on a common time period helps put judges in the tournament on a level playing field. We then generate a series of measures of merit focusing on (a) productivity, (b) opinion quality, and (c) judicial independence. While not perfect, our measures interject a greater focus on merit in the current nomination process (thereby flushing out previously non-transparent motives based on ideology). With our data, we are able to test the claims of merit that the next President will inevitably make when he announces one or the other of his favorite circuit court judges as the nominee for the Supreme Court.
{"title":"Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance","authors":"Stephen J. Choi, G. M. Gulati","doi":"10.2139/SSRN.473281","DOIUrl":"https://doi.org/10.2139/SSRN.473281","url":null,"abstract":"The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the \"most meritorious\" and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates' likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side (these days, the Republicans) claims that it is proposing certain candidates based on merit, while the other (the Democrats) claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on certain key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past the impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians' claims of merit. Being able to test those claims helps make transparent the occasions on which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a \"merit\" standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology. The Article runs such a tournament using data on opinions authored by active federal circuit court judges from one common time period: the beginning of 1998 to the end of 2000. The focus on a common time period helps put judges in the tournament on a level playing field. We then generate a series of measures of merit focusing on (a) productivity, (b) opinion quality, and (c) judicial independence. While not perfect, our measures interject a greater focus on merit in the current nomination process (thereby flushing out previously non-transparent motives based on ideology). With our data, we are able to test the claims of merit that the next President will inevitably make when he announces one or the other of his favorite circuit court judges as the nominee for the Supreme Court.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2004-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744497","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}
Eldred v. Ashcroft, as decided by the Supreme Court in January 2003 added another chapter regarding the relationship between copyright law and freedom of speech to the judicial "chain novel" that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which extended the copyright term by twenty years: both for existing works and for new works. The Court reached the conclusion that there is no conflict between the two legal fields, and repeated the judicial sound bite that "[t]he Framers intended copyright to be the engine of free expression." Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer new directions, or at least a potential for redirection. This article locates Eldred within the "conflict discourse." The critique is structured along the lines of an important distinction. When we ask what it is that the courts have been rejecting, a close study of over thirty cases which addressed the conflict teaches us that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: One is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view. The internal view confines itself to the borders of copyright law: the familiar tension between the public and the individual author; between the lofty goal of copyright of promoting the progress and the earthly means that it applies to achieve this goal. The external view conceives the alleged conflict as a collision between two separate areas of law on the constitutional level: the grant of power to Congress to enact copyright legislation, and the First Amendment. In most cases, courts fail to distinguish between the two kinds of conflict and address only one of them, or, in some cases, confuse them altogether. Once we observe that there are two kinds of conflict, and that they are often confused or not even recognized, we can rephrase the conflict argument and its denial. The conflict argument aims mainly at the external level. The typical judicial response refuses to acknowledge the external level and keeps drawing us back to the internal level. The rejection of the conflict argument thus internalizes the discussion of the conflict. Eldred is no exception. The plaintiffs raised arguments on both the internal and external levels. The internal, copyright argument was rejected due to the Court's deference to Congress. The external, free speech argument was internalized, but with drawing some crucial lines, which are explored in the article.
{"title":"COPYRIGHT LAW AND FREE SPEECH AFTER ELDRED V. ASHCROFT","authors":"Michael Birnhack","doi":"10.2139/SSRN.387562","DOIUrl":"https://doi.org/10.2139/SSRN.387562","url":null,"abstract":"Eldred v. Ashcroft, as decided by the Supreme Court in January 2003 added another chapter regarding the relationship between copyright law and freedom of speech to the judicial \"chain novel\" that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which extended the copyright term by twenty years: both for existing works and for new works. The Court reached the conclusion that there is no conflict between the two legal fields, and repeated the judicial sound bite that \"[t]he Framers intended copyright to be the engine of free expression.\" Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer new directions, or at least a potential for redirection. This article locates Eldred within the \"conflict discourse.\" The critique is structured along the lines of an important distinction. When we ask what it is that the courts have been rejecting, a close study of over thirty cases which addressed the conflict teaches us that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: One is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view. The internal view confines itself to the borders of copyright law: the familiar tension between the public and the individual author; between the lofty goal of copyright of promoting the progress and the earthly means that it applies to achieve this goal. The external view conceives the alleged conflict as a collision between two separate areas of law on the constitutional level: the grant of power to Congress to enact copyright legislation, and the First Amendment. In most cases, courts fail to distinguish between the two kinds of conflict and address only one of them, or, in some cases, confuse them altogether. Once we observe that there are two kinds of conflict, and that they are often confused or not even recognized, we can rephrase the conflict argument and its denial. The conflict argument aims mainly at the external level. The typical judicial response refuses to acknowledge the external level and keeps drawing us back to the internal level. The rejection of the conflict argument thus internalizes the discussion of the conflict. Eldred is no exception. The plaintiffs raised arguments on both the internal and external levels. The internal, copyright argument was rejected due to the Court's deference to Congress. The external, free speech argument was internalized, but with drawing some crucial lines, which are explored in the article.","PeriodicalId":47124,"journal":{"name":"Southern California Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2003-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68661982","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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