Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.
{"title":"Courting Disaster: Climate Change and the Adjudication of Catastrophe","authors":"R. H. Weaver, Douglas A. Kysar","doi":"10.2139/SSRN.2965084","DOIUrl":"https://doi.org/10.2139/SSRN.2965084","url":null,"abstract":"Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83739173","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 shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is polic
{"title":"Internet Safe Harbors and the Transformation of Copyright Law","authors":"Matthew J. Sag","doi":"10.2139/SSRN.2830184","DOIUrl":"https://doi.org/10.2139/SSRN.2830184","url":null,"abstract":"This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is polic","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81898398","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}
Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.
{"title":"Active Judging and Access to Justice","authors":"Anna E. Carpenter","doi":"10.2139/SSRN.2911214","DOIUrl":"https://doi.org/10.2139/SSRN.2911214","url":null,"abstract":"Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges engage with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new conceptual framework: the three dimensions of active judging. The study is based in a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample engage in at least one dimension of active judging, but judges’ views and practices vary in meaningful ways across the three dimensions, which include adjusting procedures; explaining law and process; and eliciting information. While all judges are willing to adjust procedures, they vary in whether and how they explain or elicit. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law — burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate case law, a regulatory body, and one another, through peer reviews. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests consistency in active judging may require more substantial guidance than that available to judges in this court.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86757634","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}
If they can commit the vast majority of crimes, corporations must have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. But recent advances in cognitive science cast doubt on this assumption by revealing similarities in how people attribute mental states to groups and individuals.The standard doctrine — which attributes to corporations all and only the mental states of their employees — illustrates the difficulties of trying to find a wholly separate theory of corporate mens rea. At this stage in corporate history, the standard approach regularly leads to acquittals and convictions out of synch with any sensible notion of criminal justice. In some cases, corporations are acquitted even though it is clear some corporate malfeasance has occurred, as when responsibility is so scattered among an army of employees that no identifiable individual has done or thought anything objectionable. In other cases, the self-serving crimes of rogue employees may be attributed to otherwise upstanding corporate citizens, branding the whole organization criminal in the eyes of the law.This article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea. An elegant solution, and the one proposed by this article, would accept what people naturally do and build the requirements for mens rea around that understanding. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people — in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.
{"title":"Corporate Criminal Minds","authors":"Mihailis E. Diamantis","doi":"10.2139/SSRN.2633627","DOIUrl":"https://doi.org/10.2139/SSRN.2633627","url":null,"abstract":"If they can commit the vast majority of crimes, corporations must have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. But recent advances in cognitive science cast doubt on this assumption by revealing similarities in how people attribute mental states to groups and individuals.The standard doctrine — which attributes to corporations all and only the mental states of their employees — illustrates the difficulties of trying to find a wholly separate theory of corporate mens rea. At this stage in corporate history, the standard approach regularly leads to acquittals and convictions out of synch with any sensible notion of criminal justice. In some cases, corporations are acquitted even though it is clear some corporate malfeasance has occurred, as when responsibility is so scattered among an army of employees that no identifiable individual has done or thought anything objectionable. In other cases, the self-serving crimes of rogue employees may be attributed to otherwise upstanding corporate citizens, branding the whole organization criminal in the eyes of the law.This article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea. An elegant solution, and the one proposed by this article, would accept what people naturally do and build the requirements for mens rea around that understanding. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people — in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86086636","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}
Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages award it had previously affirmed — because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO issued its conflicting decision on patent validity.The Federal Circuit’s stringent conception of finality, which this article terms the “absolute finality” rule, raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity.
{"title":"In)valid Patents","authors":"Paul R. Gugliuzza","doi":"10.2139/SSRN.2692614","DOIUrl":"https://doi.org/10.2139/SSRN.2692614","url":null,"abstract":"Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages award it had previously affirmed — because the PTO had since decided that the patent was invalid. The Federal Circuit reasoned that only “final” court judgments are immune from the effects of PTO review and, because of the open issue about royalties, no final judgment existed when the PTO issued its conflicting decision on patent validity.The Federal Circuit’s stringent conception of finality, which this article terms the “absolute finality” rule, raises serious questions of judicial economy, fairness, and separation of powers. Among other things, it allows accused infringers multiple opportunities to defeat liability, permits an administrative agency to effectively nullify decisions of Article III courts, and incentivizes courts to abstain from hearing patent cases altogether, at least until the PTO reconsiders the patent’s validity. That said, some inefficiency or unfairness is inevitable when two different government bodies can evaluate the validity of the same patent, and the absolute finality rule, if nothing else, provides a relatively bright-line test. But it is not the only way to mediate disagreements between the courts and the PTO. This article, in addition to identifying, describing, and critiquing the absolute finality rule, explores several other options for providing greater certainty about patent validity.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76222504","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 law of federal procedure is on the Supreme Court’s docket for the October 2016 Term, with granted petitions addressing pleading sufficiency, standing, and jurisdiction. And, of course, the Advisory Committee on Rules of Civil Procedure continues its annual tinkering with the rules in an elusive effort to micromanage federal practice. That reality, coupled with recent exchanges with colleagues on procedural interpretation and reform, has prompted these reflections on the role of procedure in our democratic system. This short essay is intended to summarize those reflections, which are more extensively elaborated in my other works.
联邦诉讼法律在最高法院2016年10月任期的案卷上，其中包括批准的请愿书，涉及辩护的充分性、地位和管辖权。当然，民事诉讼规则咨询委员会(Advisory Committee on Rules of Civil Procedure)每年都在对规则进行修修补补，试图对联邦的实践进行微观管理。这一现实，加上最近与同事就程序解释和改革问题进行的交流，促使我们对程序在我们民主制度中的作用进行思考。这篇短文旨在总结这些思考，这些思考在我的其他作品中得到了更广泛的阐述。
{"title":"The Courts and the People in a Democratic System: Against Federal Courts’ Exceptionalism","authors":"S. Grossi","doi":"10.2139/SSRN.2844320","DOIUrl":"https://doi.org/10.2139/SSRN.2844320","url":null,"abstract":"The law of federal procedure is on the Supreme Court’s docket for the October 2016 Term, with granted petitions addressing pleading sufficiency, standing, and jurisdiction. And, of course, the Advisory Committee on Rules of Civil Procedure continues its annual tinkering with the rules in an elusive effort to micromanage federal practice. That reality, coupled with recent exchanges with colleagues on procedural interpretation and reform, has prompted these reflections on the role of procedure in our democratic system. This short essay is intended to summarize those reflections, which are more extensively elaborated in my other works.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74635532","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}
Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Clothes are not designed or chosen simply to look good. They are also designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Star Athletica, LLC v. Varsity Brands Inc., the copyright case now pending before the U.S. Supreme Court.
{"title":"Fashion's Function in Intellectual Property Law","authors":"Christopher Buccafusco, Jeanne Fromer","doi":"10.2139/SSRN.2826201","DOIUrl":"https://doi.org/10.2139/SSRN.2826201","url":null,"abstract":"Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Clothes are not designed or chosen simply to look good. They are also designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it offers a solution to Star Athletica, LLC v. Varsity Brands Inc., the copyright case now pending before the U.S. Supreme Court.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72824302","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}
Across a range of contexts, federal courts have crafted doctrines that limit judicial second guessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement’s “unsuitability” for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the “political question doctrine”: while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine — “textual assignment” and “judicial manageability” — usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry.This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering “deferred prosecution agreements” in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.
{"title":"Law Enforcement as Political Question","authors":"Zachary S. Price","doi":"10.2139/SSRN.2572637","DOIUrl":"https://doi.org/10.2139/SSRN.2572637","url":null,"abstract":"Across a range of contexts, federal courts have crafted doctrines that limit judicial second guessing of executive nonenforcement decisions. Key case law, however, carries important ambiguities of scope and rationale. In particular, key decisions have combined rationales rooted in executive prerogative with concerns about nonenforcement’s “unsuitability” for judicial resolution. With one nonenforcement initiative now before the Supreme Court and other related issues percolating in lower courts, this Article makes the case for the latter rationale. Judicial review of nonenforcement, on this account, involves a form of political question, in the sense of the “political question doctrine”: while executive officials hold a basic statutory and constitutional obligation to faithfully execute regulatory statutes, that obligation is subject to incomplete judicial enforcement because structural constitutional considerations place a gap between executive duties and judicial enforcement of those duties. What is more, the twin prongs of the modern political question doctrine — “textual assignment” and “judicial manageability” — usefully describe the gap between executive obligation and judicial power. Bringing enforcement suits and prosecutions in particular cases is a textually assigned function of the executive branch, while the broader executive task of setting priorities for enforcement frequently presents a judicially unmanageable inquiry.This reframing may account descriptively for much of the current doctrine but also carries important normative implications. Among other things, the framework clarifies that judicial decisions may not fully define executive obligations with respect to enforcement; it helps identify contexts in which judicial review may be appropriate, including with respect to current immigration programs before the Supreme Court and the controversial prosecutorial practice of entering “deferred prosecution agreements” in white-collar criminal cases; and it reinforces longstanding arguments for a more flexible doctrine of Article III standing.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89514254","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}
It is often said that the duty of confidentiality is the most important of all the fiduciary duties attorneys owe their clients. This is so because without confidentiality, clients would presumably not feel free to seek legal representation, or, at least, would not be fully open to speak out with their lawyers. Yet, the duty of confidentiality can be affected by special statutes that impose the opposite duty: a duty to disclose information under certain circumstances. Most common among this type of statutes are state statutes that mandate disclosure of information related to child abuse. As one might expect, therefore, there may be circumstances in which a lawyer may find a conflict between the duty to keep information secret and a duty to disclose it. Last fall, the Legal Ethics Committee of the Indiana State Bar Association issued an opinion addressing this very question. It concludes that under Indiana law, absent client consent, an attorney may not report information about suspected child abuse learned during the representation of the client unless the lawyer believes disclosing the information is necessary to prevent reasonably certain death or substantial bodily harm. In reaching this conclusion, however, the Committee disregards the text of the applicable rule of professional conduct and does not consider the possible scenarios that can result from the interpretation of the mandatory disclosure statute, the doctrine of the attorney-client privilege and the rules of professional conduct. In an effort to clarify the confusion created by the opinion, this essay explains the issue presented by the opinion, and suggests the analysis needed for its proper resolution according to the applicable rules of professional conduct.
{"title":"Through the Looking Glass in Indiana: Mandatory Reporting of Child Abuse and the Duty of Confidentiality","authors":"A. Bernabé","doi":"10.2139/ssrn.2770884","DOIUrl":"https://doi.org/10.2139/ssrn.2770884","url":null,"abstract":"It is often said that the duty of confidentiality is the most important of all the fiduciary duties attorneys owe their clients. This is so because without confidentiality, clients would presumably not feel free to seek legal representation, or, at least, would not be fully open to speak out with their lawyers. Yet, the duty of confidentiality can be affected by special statutes that impose the opposite duty: a duty to disclose information under certain circumstances. Most common among this type of statutes are state statutes that mandate disclosure of information related to child abuse. As one might expect, therefore, there may be circumstances in which a lawyer may find a conflict between the duty to keep information secret and a duty to disclose it. Last fall, the Legal Ethics Committee of the Indiana State Bar Association issued an opinion addressing this very question. It concludes that under Indiana law, absent client consent, an attorney may not report information about suspected child abuse learned during the representation of the client unless the lawyer believes disclosing the information is necessary to prevent reasonably certain death or substantial bodily harm. In reaching this conclusion, however, the Committee disregards the text of the applicable rule of professional conduct and does not consider the possible scenarios that can result from the interpretation of the mandatory disclosure statute, the doctrine of the attorney-client privilege and the rules of professional conduct. In an effort to clarify the confusion created by the opinion, this essay explains the issue presented by the opinion, and suggests the analysis needed for its proper resolution according to the applicable rules of professional conduct.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89466484","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}
Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.
{"title":"A Non-Contentious Account of Article III's Domestic Relations Exception","authors":"James E. Pfander, Emily K. Damrau","doi":"10.2139/SSRN.2747767","DOIUrl":"https://doi.org/10.2139/SSRN.2747767","url":null,"abstract":"Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2016-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82692797","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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