Patent reform is a hotly contested issue, occupying the attention of Congress, the Supreme Court, and many of the most innovative companies in the world. Most of that dispute centers on patent enforcement, and in particular on the role of non-practicing entities (NPEs) or “patent trolls” – companies that don’t themselves make products but sue those that do. To technology companies, NPEs are a drag on innovation, taxing them tens of billions of dollars every year while achieving no social purpose. To NPEs and their supporters, they are enabling the first inventor to get paid and creating a working market for the transfer of technology. Which is it? In this paper, we present the first full empirical study of the effect of patent licensing demands on the economy. With the help of a National Science Foundation grant and experts in survey design, we sent our survey out to every US-based business with at least one employee and revenue of $1 million or more – over 45,000 companies. Our results provide important insights into the nature and limits of patent licensing demands and their role (or lack thereof) in driving innovation. We find that NPE licensing demands almost never lead to innovation by the target firm. None of the indicia we would expect of real technology transfer were common in patent licensing demands. Moreover, NPE demands were particularly unlikely to be accompanied by the sharing of know-how or employees, the creation of joint ventures, or the development of new products. NPEs do not seem to be a monolithic group. The results for certain types of NPEs were more promising. Federal labs that assert patents are the group most likely to transfer knowledge or drive new products when they license patents. University patent demands are more likely to drive innovation than demands by other sorts of NPEs, but most of them still don’t involve any indicia of technology transfer. We also find that the patent system works differently in different industries. Patent licensing demands almost never result in technology transfer or new innovation in the computer industry, particularly when NPEs are doing the asserting. They are somewhat more likely to be productive in the life sciences, but it is areas like energy that see the most new products resulting from patent assertions. Finally, and perhaps most important in the long run, a significant majority of respondents simply didn’t face patent licensing demands at all. It is true that those companies may be smaller and less innovative than the ones that do face licensing demands. But given the raging debates over the patent system and its role in driving the economy, it is important to recognize that there are large swaths of American business that simply don't deal with patent licensing demands at all.
{"title":"The Sound and Fury of Patent Activity","authors":"Robin C. Feldman, Mark A. Lemley","doi":"10.2139/SSRN.3195988","DOIUrl":"https://doi.org/10.2139/SSRN.3195988","url":null,"abstract":"Patent reform is a hotly contested issue, occupying the attention of Congress, the Supreme Court, and many of the most innovative companies in the world. Most of that dispute centers on patent enforcement, and in particular on the role of non-practicing entities (NPEs) or “patent trolls” – companies that don’t themselves make products but sue those that do. To technology companies, NPEs are a drag on innovation, taxing them tens of billions of dollars every year while achieving no social purpose. To NPEs and their supporters, they are enabling the first inventor to get paid and creating a working market for the transfer of technology. \u0000 \u0000Which is it? \u0000 \u0000In this paper, we present the first full empirical study of the effect of patent licensing demands on the economy. With the help of a National Science Foundation grant and experts in survey design, we sent our survey out to every US-based business with at least one employee and revenue of $1 million or more – over 45,000 companies. Our results provide important insights into the nature and limits of patent licensing demands and their role (or lack thereof) in driving innovation. \u0000 \u0000We find that NPE licensing demands almost never lead to innovation by the target firm. None of the indicia we would expect of real technology transfer were common in patent licensing demands. Moreover, NPE demands were particularly unlikely to be accompanied by the sharing of know-how or employees, the creation of joint ventures, or the development of new products. \u0000 \u0000NPEs do not seem to be a monolithic group. The results for certain types of NPEs were more promising. Federal labs that assert patents are the group most likely to transfer knowledge or drive new products when they license patents. University patent demands are more likely to drive innovation than demands by other sorts of NPEs, but most of them still don’t involve any indicia of technology transfer. We also find that the patent system works differently in different industries. Patent licensing demands almost never result in technology transfer or new innovation in the computer industry, particularly when NPEs are doing the asserting. They are somewhat more likely to be productive in the life sciences, but it is areas like energy that see the most new products resulting from patent assertions. \u0000 \u0000Finally, and perhaps most important in the long run, a significant majority of respondents simply didn’t face patent licensing demands at all. It is true that those companies may be smaller and less innovative than the ones that do face licensing demands. But given the raging debates over the patent system and its role in driving the economy, it is important to recognize that there are large swaths of American business that simply don't deal with patent licensing demands at all.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2018-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3195988","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48363240","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}
Cybersecurity is an increasingly important element of infrastructure and commerce. Courts are starting to shape the doctrine of third party liability for cyberattacks and data breaches. For businesses that rely on computers and the Internet, these developments affect their bottom line. There is a lot of interest in managing these emerging cyber risks and associated cyber losses, and many companies are looking to insurance policies for coverage. Unfortunately, commercial general liability policies are becoming narrower as insurers increasingly remove electronic data from the scope of coverage. Cyber insurance is becoming increasingly available, but the market for these policies is plagued by informational asymmetries, data scarcity, and high potential for moral hazard problems. In this article, we examine insurance as a risk management tool in the cybersecurity context, with special emphasis on the emerging market for cyber insurance and how to overcome the dangers to this market’s effectiveness and growth through better risk assessment. In order to understand the legal risk in policy coverage, we present an empirical study and findings regarding litigation concerning insurance coverage for cyber harms involving intangible property, digital data, and cybersecurity. Our work emphasizes the need for developing cyber-specific insurance products, instead of relying on commercial general liability (CGL) policies to cover cyber losses. We urge that collaboration between the government and private sector will be necessary to better estimate the technological risk in this cyber environment for insurance purposes. We also analogize the cyber insurance market to the Workers’ Compensation system and the National Flood Insurance Program (NFIP) and analyze the lessons that can be drawn from them.
{"title":"Strengthening Cybersecurity with Cyber Insurance Markets and Better Risk Assessment","authors":"J. Kesan, C. Hayes","doi":"10.2139/SSRN.2924854","DOIUrl":"https://doi.org/10.2139/SSRN.2924854","url":null,"abstract":"Cybersecurity is an increasingly important element of infrastructure and commerce. Courts are starting to shape the doctrine of third party liability for cyberattacks and data breaches. For businesses that rely on computers and the Internet, these developments affect their bottom line. There is a lot of interest in managing these emerging cyber risks and associated cyber losses, and many companies are looking to insurance policies for coverage. \u0000Unfortunately, commercial general liability policies are becoming narrower as insurers increasingly remove electronic data from the scope of coverage. Cyber insurance is becoming increasingly available, but the market for these policies is plagued by informational asymmetries, data scarcity, and high potential for moral hazard problems. \u0000In this article, we examine insurance as a risk management tool in the cybersecurity context, with special emphasis on the emerging market for cyber insurance and how to overcome the dangers to this market’s effectiveness and growth through better risk assessment. In order to understand the legal risk in policy coverage, we present an empirical study and findings regarding litigation concerning insurance coverage for cyber harms involving intangible property, digital data, and cybersecurity. Our work emphasizes the need for developing cyber-specific insurance products, instead of relying on commercial general liability (CGL) policies to cover cyber losses. We urge that collaboration between the government and private sector will be necessary to better estimate the technological risk in this cyber environment for insurance purposes. We also analogize the cyber insurance market to the Workers’ Compensation system and the National Flood Insurance Program (NFIP) and analyze the lessons that can be drawn from them.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2017-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2924854","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44669775","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}
Like many other terms bandied about these days, “academic freedom” is something that means different things to different people, and for that reason is often misunderstood. In this Article, we focus on what, if any, special freedoms of expression are enjoyed under the First Amendment to the U.S. Constitution by students and faculty members at any of the nation’s hundreds of public universities. Analyzing key Supreme Court precedent over the last generation, and the way these cases play out in prominent recent disputes — many of which have been litigated extensively in the lower courts — we conclude that while the First Amendment affords significant protections for expression insofar as public higher educational institutions can be likened to municipalities for some purposes, university administrators have a fair degree of control over speech that can be said to be connected directly to the research, classroom teaching, and extracurricular activities that make up the heart of modern university experience. Particularly as to faculty, First Amendment freedoms may be less than many people assume; in some respects (because of the nature of their public jobs), public university faculty may enjoy less expressive latitude than non-academic employees. There are, of course, sources of support for free speech beyond the First Amendment — such as institutional tradition and policy, state law, contract law, federal due process, and public subsidy. To the extent that advocates want more — rather than less — expressive freedom for students and faculty at universities because of the special role such institutions fill in society, those non-First-Amendment sources may prove more helpful than First Amendment doctrine.
{"title":"A Close-Up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty","authors":"V. Amar, Alan E. Brownstein","doi":"10.2139/SSRN.3008937","DOIUrl":"https://doi.org/10.2139/SSRN.3008937","url":null,"abstract":"Like many other terms bandied about these days, “academic freedom” is something that means different things to different people, and for that reason is often misunderstood. In this Article, we focus on what, if any, special freedoms of expression are enjoyed under the First Amendment to the U.S. Constitution by students and faculty members at any of the nation’s hundreds of public universities. Analyzing key Supreme Court precedent over the last generation, and the way these cases play out in prominent recent disputes — many of which have been litigated extensively in the lower courts — we conclude that while the First Amendment affords significant protections for expression insofar as public higher educational institutions can be likened to municipalities for some purposes, university administrators have a fair degree of control over speech that can be said to be connected directly to the research, classroom teaching, and extracurricular activities that make up the heart of modern university experience. Particularly as to faculty, First Amendment freedoms may be less than many people assume; in some respects (because of the nature of their public jobs), public university faculty may enjoy less expressive latitude than non-academic employees. \u0000There are, of course, sources of support for free speech beyond the First Amendment — such as institutional tradition and policy, state law, contract law, federal due process, and public subsidy. To the extent that advocates want more — rather than less — expressive freedom for students and faculty at universities because of the special role such institutions fill in society, those non-First-Amendment sources may prove more helpful than First Amendment doctrine.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43440030","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}
We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
{"title":"Civil Rules Interpretive Theory","authors":"Lumen N. Mulligan, G. Staszewski","doi":"10.2139/SSRN.2814194","DOIUrl":"https://doi.org/10.2139/SSRN.2814194","url":null,"abstract":"We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68344678","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 financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.
{"title":"What Legal Authority Does the Fed Need During a Financial Crisis","authors":"E. Posner","doi":"10.2139/SSRN.2723524","DOIUrl":"https://doi.org/10.2139/SSRN.2723524","url":null,"abstract":"The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274516","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}
There is tremendous interest in a certain type of patent litigant — the often-called non-practicing entity ("NPE"), patent assertion entity ("PAE"), patent monetization entity ("PME"), or simply patent troll. These NPEs are the subject of a recent GAO report, a possible FTC investigation, pending legislation before Congress, and even comments from the President of the United States. All of this commentary and activity centers on whether NPE participation in patent litigation, and the patent system in general, is detrimental or beneficial to society. But the fundamental barrier to understanding the current debate is the lack of granular and transparent data on NPE litigation behavior. Accordingly, we personally hand-coded all patent holder litigants from calendar years 2010 and 2012, and we are releasing this data to the public. In our coding, we drill down and finely classify the nature of the litigants beyond the simple NPE or non-NPE definitions. Releasing this data to the public that unpacks the definition of NPE can provide better illumination to policy makers, researchers, and others interested in the patent litigation system. The data reveals a much lower percentage of litigation brought by patent holding companies than other studies, finding no explosion in NPE litigation between 2010 and 2012. Instead, we find that most differences between the years — an increase in the number of patent holding companies and individual inventor suits — is likely explained by a change in the joinder rules adopted in 2011 as part of the America Invents Act.
{"title":"Unpacking Patent Assertion Entities (PAEs)","authors":"C. Cotropia, J. Kesan, David L. Schwartz","doi":"10.2139/SSRN.2346381","DOIUrl":"https://doi.org/10.2139/SSRN.2346381","url":null,"abstract":"There is tremendous interest in a certain type of patent litigant — the often-called non-practicing entity (\"NPE\"), patent assertion entity (\"PAE\"), patent monetization entity (\"PME\"), or simply patent troll. These NPEs are the subject of a recent GAO report, a possible FTC investigation, pending legislation before Congress, and even comments from the President of the United States. All of this commentary and activity centers on whether NPE participation in patent litigation, and the patent system in general, is detrimental or beneficial to society. But the fundamental barrier to understanding the current debate is the lack of granular and transparent data on NPE litigation behavior. Accordingly, we personally hand-coded all patent holder litigants from calendar years 2010 and 2012, and we are releasing this data to the public. In our coding, we drill down and finely classify the nature of the litigants beyond the simple NPE or non-NPE definitions. Releasing this data to the public that unpacks the definition of NPE can provide better illumination to policy makers, researchers, and others interested in the patent litigation system. The data reveals a much lower percentage of litigation brought by patent holding companies than other studies, finding no explosion in NPE litigation between 2010 and 2012. Instead, we find that most differences between the years — an increase in the number of patent holding companies and individual inventor suits — is likely explained by a change in the joinder rules adopted in 2011 as part of the America Invents Act.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2346381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127826","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 examines the convergence of two seemingly contradictory developments. One is the widespread rape of women by acquaintances, dates, and intimates, mostly without legal recourse. The other is the emergence of a generation of women who embrace a pro-sex orientation and define their sexualities accordingly. To date, legal theorists have failed to reconcile this move toward sex positivity with the ubiquity of non-stranger rape. SlutWalk – the global grassroots initiative that protests rape by embracing sex – provides a vehicle for first exploring tensions that arise when sexual agency is asserted against a backdrop of pervasive sexual violation. On analysis, sexual agency must be reconceived, which in turn exposes new perspectives on rape law and informs the next phase of reform.
{"title":"SlutWalking in the Shadow of the Law","authors":"Deborah Tuerkheimer","doi":"10.2139/SSRN.2009541","DOIUrl":"https://doi.org/10.2139/SSRN.2009541","url":null,"abstract":"This Article examines the convergence of two seemingly contradictory developments. One is the widespread rape of women by acquaintances, dates, and intimates, mostly without legal recourse. The other is the emergence of a generation of women who embrace a pro-sex orientation and define their sexualities accordingly. To date, legal theorists have failed to reconcile this move toward sex positivity with the ubiquity of non-stranger rape. SlutWalk – the global grassroots initiative that protests rape by embracing sex – provides a vehicle for first exploring tensions that arise when sexual agency is asserted against a backdrop of pervasive sexual violation. On analysis, sexual agency must be reconceived, which in turn exposes new perspectives on rape law and informs the next phase of reform.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847898","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 reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries — from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in order to serve the goal of promoting progress. Beyond this general concern, the nondisclosure of big data practices threatens innovation in unique ways that are particularly insidious. The cause of this problem, and possibly its resolution, lies in the interplay between big data and intellectual property law — a nexus that scholars have not explored until now.
{"title":"Disclosing Big Data","authors":"Michael Mattioli","doi":"10.2139/SSRN.2358985","DOIUrl":"https://doi.org/10.2139/SSRN.2358985","url":null,"abstract":"This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries — from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in order to serve the goal of promoting progress. Beyond this general concern, the nondisclosure of big data practices threatens innovation in unique ways that are particularly insidious. The cause of this problem, and possibly its resolution, lies in the interplay between big data and intellectual property law — a nexus that scholars have not explored until now.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137937","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}
With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.
{"title":"The Constitutional Limit of Zero Tolerance in Schools","authors":"D. W. Black","doi":"10.2139/SSRN.2385283","DOIUrl":"https://doi.org/10.2139/SSRN.2385283","url":null,"abstract":"With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2385283","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165180","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}
Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” This Article explores the content of the bodily injury construct through the lens of cognitive neuroscience, which poses new challenges to traditional mind-body distinctions. Combining a review of bodily injury definitions in criminal assault statutes and a series of empirical analyses, the analysis finds that: (1) jury-eligible lay people exhibit much confusion and disagreement about what constitutes a “bodily” injury; (2) jury instructions, with different definitions of the term, significantly affect how lay people determine bodily injury; and (3) neuroscientific evidence, if unchecked by a limiting jury instruction, will likely expand the bodily injury concept to include injuries that have traditionally been seen as non-physical. Taken together, the findings in this Article suggest that — if the criminal law were to recognize the biological and thus physical basis for mental injury — the limits of criminal liability for harms against the person might be increasingly contested as the distinctions between mind and body for purposes of criminal liability shift. To avoid this confusion, and the potential injustices that might emerge, the Article argues that legislatures should carefully revisit bodily injury definitions. The Article provides a series of options that legislatures can employ.
{"title":"Mind, Body, and the Criminal Law","authors":"Francis X. Shen","doi":"10.2139/ssrn.2108537","DOIUrl":"https://doi.org/10.2139/ssrn.2108537","url":null,"abstract":"Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” This Article explores the content of the bodily injury construct through the lens of cognitive neuroscience, which poses new challenges to traditional mind-body distinctions. Combining a review of bodily injury definitions in criminal assault statutes and a series of empirical analyses, the analysis finds that: (1) jury-eligible lay people exhibit much confusion and disagreement about what constitutes a “bodily” injury; (2) jury instructions, with different definitions of the term, significantly affect how lay people determine bodily injury; and (3) neuroscientific evidence, if unchecked by a limiting jury instruction, will likely expand the bodily injury concept to include injuries that have traditionally been seen as non-physical. Taken together, the findings in this Article suggest that — if the criminal law were to recognize the biological and thus physical basis for mental injury — the limits of criminal liability for harms against the person might be increasingly contested as the distinctions between mind and body for purposes of criminal liability shift. To avoid this confusion, and the potential injustices that might emerge, the Article argues that legislatures should carefully revisit bodily injury definitions. The Article provides a series of options that legislatures can employ.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2013-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915204","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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