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":"5 1","pages":"2036-2175"},"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}
In Morrison v. National Australia Bank, the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases involving private securities transactions in which geographic determinants of a transaction and thus applicable law are unclear, this article suggests redirecting the inquiry away from the geographic location of securities transactions towards the parties’ choice of law. In the long run, allowing parties to choose the law pertaining to private transactions could be more effective than relying on geography that is both indeterminate and easy to manipulate. Jurisdictions could then compete to induce transacting parties to bring private transactions within their jurisdictional reach by designing substantive law and procedures that parties choose ex-ante ("Choice of Law Competition”). Recent cases expanding the jurisdictional reach of Dutch courts suggest that the Netherlands or another EU member state could engage in a different type of jurisdictional competition. Jurisdictions performing this role adjust their procedural rules to set up a forum within their borders for litigation that appeals to plaintiffs and their lawyers ("Forum Competition"). The U.S. engaged in some Forum Competition for extraterritorial securities litigation prior to Morrison, and the Dodd-Frank Act of 2010 empowers the SEC to continue to bring suits in the United States over securities transactions outside the United States. For many issuers and investors who do not choose the forum ex-ante, Forum Competition can be suboptimal. Depending on future developments, the acceptable outer bounds of Forum Competition between the United States and Europe may need to be defined by treaty or multilateral agreement.
{"title":"Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Australia Bank","authors":"Wulf A. Kaal, Richard W. Painter","doi":"10.2139/SSRN.2029983","DOIUrl":"https://doi.org/10.2139/SSRN.2029983","url":null,"abstract":"In Morrison v. National Australia Bank, the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases involving private securities transactions in which geographic determinants of a transaction and thus applicable law are unclear, this article suggests redirecting the inquiry away from the geographic location of securities transactions towards the parties’ choice of law. In the long run, allowing parties to choose the law pertaining to private transactions could be more effective than relying on geography that is both indeterminate and easy to manipulate. Jurisdictions could then compete to induce transacting parties to bring private transactions within their jurisdictional reach by designing substantive law and procedures that parties choose ex-ante (\"Choice of Law Competition”). Recent cases expanding the jurisdictional reach of Dutch courts suggest that the Netherlands or another EU member state could engage in a different type of jurisdictional competition. Jurisdictions performing this role adjust their procedural rules to set up a forum within their borders for litigation that appeals to plaintiffs and their lawyers (\"Forum Competition\"). The U.S. engaged in some Forum Competition for extraterritorial securities litigation prior to Morrison, and the Dodd-Frank Act of 2010 empowers the SEC to continue to bring suits in the United States over securities transactions outside the United States. For many issuers and investors who do not choose the forum ex-ante, Forum Competition can be suboptimal. Depending on future developments, the acceptable outer bounds of Forum Competition between the United States and Europe may need to be defined by treaty or multilateral agreement.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"97 1","pages":"132-205"},"PeriodicalIF":1.3,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868450","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}
{"title":"When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale.","authors":"Jerome H Reichman, Ruth L Okediji","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"96 4","pages":"1362-1480"},"PeriodicalIF":1.3,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3955386/pdf/nihms-419209.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32186082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The received wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs authority, as efficiency enhancing constraints imposed on political actors that were originally negotiated and are currently being interpreted behind a benign veil of ignorance. In this picture, since the net distributive effects of the foreign affairs powers on specific societal groups are considered to be uncertain and unpredictable, the incentive by such groups to engage in an instrumental or self-serving interpretation of such powers is presumably blunted. This Paper suggests, on the contrary, that partisan groups can often reasonably predict ex ante or determine ex post how an expansive or constrained interpretation of specific foreign affairs powers is likely to affect their material or ideological objectives. The issue of interpretative choice in foreign affairs powers usually involves the outcome of the struggle between right and left leaning groups in which each side attempts to increase the number of veto points (or constitutional constraints) on issues that favor the opposition, and decrease the number of veto points on issues that benefit their favored constituencies. Using this framework, this Paper analyzes how postwar partisan conflict between Republican and Democratic leaning constituencies on issues like human right treaties and war powers has both spawned and restricted the scope of foreign affairs authority in the United States. In the early post WWII era, when the New Deal politics of guns and butter were complementary, progressive Democratic constituencies were supportive of a proactive military agenda and favored greater executive branch flexibility in both war powers and in the ratification of human rights treaties, whereas Republican leaning constituencies (and conservative Democrats) were against. Starting in the late-1960s, as fallout of the Vietnam War, the positions of the Republican and Democrat Parties started to switch gradually on war powers. By the1980s, when President Reagan created a cleavage between the politics of guns and butter, in which the growth of the growth of the national security state was decoupled from that of the welfare state, Republican leaning constituencies cemented their support of greater executive branch flexibility in war powers but not in human rights treaty ratification, whereas progressive Democratic constituencies largely adopted an opposite set of institutional preferences. Finally, this Article concludes by critically examining the normative implications of using increased judicial oversight to counteract the effects of foreign affairs partisanship.
{"title":"Our Partisan Foreign Affairs Constitution","authors":"Jide Nzelibe","doi":"10.2139/SSRN.1900155","DOIUrl":"https://doi.org/10.2139/SSRN.1900155","url":null,"abstract":"The received wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs authority, as efficiency enhancing constraints imposed on political actors that were originally negotiated and are currently being interpreted behind a benign veil of ignorance. In this picture, since the net distributive effects of the foreign affairs powers on specific societal groups are considered to be uncertain and unpredictable, the incentive by such groups to engage in an instrumental or self-serving interpretation of such powers is presumably blunted. This Paper suggests, on the contrary, that partisan groups can often reasonably predict ex ante or determine ex post how an expansive or constrained interpretation of specific foreign affairs powers is likely to affect their material or ideological objectives. The issue of interpretative choice in foreign affairs powers usually involves the outcome of the struggle between right and left leaning groups in which each side attempts to increase the number of veto points (or constitutional constraints) on issues that favor the opposition, and decrease the number of veto points on issues that benefit their favored constituencies. Using this framework, this Paper analyzes how postwar partisan conflict between Republican and Democratic leaning constituencies on issues like human right treaties and war powers has both spawned and restricted the scope of foreign affairs authority in the United States. In the early post WWII era, when the New Deal politics of guns and butter were complementary, progressive Democratic constituencies were supportive of a proactive military agenda and favored greater executive branch flexibility in both war powers and in the ratification of human rights treaties, whereas Republican leaning constituencies (and conservative Democrats) were against. Starting in the late-1960s, as fallout of the Vietnam War, the positions of the Republican and Democrat Parties started to switch gradually on war powers. By the1980s, when President Reagan created a cleavage between the politics of guns and butter, in which the growth of the growth of the national security state was decoupled from that of the welfare state, Republican leaning constituencies cemented their support of greater executive branch flexibility in war powers but not in human rights treaty ratification, whereas progressive Democratic constituencies largely adopted an opposite set of institutional preferences. Finally, this Article concludes by critically examining the normative implications of using increased judicial oversight to counteract the effects of foreign affairs partisanship.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"97 1","pages":"838-906"},"PeriodicalIF":1.3,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67775604","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}
In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior alone while ignoring the role that judges play in any enforcement regime that depends on litigation. I show that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law.
{"title":"Special Incentives to Sue","authors":"M. Lemos","doi":"10.2139/SSRN.1474923","DOIUrl":"https://doi.org/10.2139/SSRN.1474923","url":null,"abstract":"In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior alone while ignoring the role that judges play in any enforcement regime that depends on litigation. I show that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":"782"},"PeriodicalIF":1.3,"publicationDate":"2010-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185232","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}
{"title":"Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?","authors":"Gerard N. Magliocca","doi":"10.31228/osf.io/bgjd4","DOIUrl":"https://doi.org/10.31228/osf.io/bgjd4","url":null,"abstract":"94 Minnesota Law Review 102 (2009)","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"94 1","pages":"102-139"},"PeriodicalIF":1.3,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639722","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}
A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.
{"title":"Reclaiming International Law from Extraterritoriality","authors":"Austen L. Parrish","doi":"10.2139/SSRN.1013740","DOIUrl":"https://doi.org/10.2139/SSRN.1013740","url":null,"abstract":"A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2008-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-09-04DOI: 10.1093/acprof:oso/9780199562688.003.0005
J. Raz
The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency in the history of reflection on authority. The present article modifies some aspects the account, and defends it against some criticism made against it.
{"title":"The Problem of Authority: Revisiting the Service Conception","authors":"J. Raz","doi":"10.1093/acprof:oso/9780199562688.003.0005","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199562688.003.0005","url":null,"abstract":"The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency in the history of reflection on authority. The present article modifies some aspects the account, and defends it against some criticism made against it.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"90 1","pages":"1003"},"PeriodicalIF":1.3,"publicationDate":"2007-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60650638","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 questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a widely shared social value, rules that promote a fair distribution of the economic surplus are likely to mimic what rational people would voluntarily have agreed to ex ante. Therefore, rules that favor fairness take into account the fact that a fair distribution is a social good for which people are willing to bargain. Second, rules based on fairness often lead to the economically efficient result even on welfarist terms. For example, where there are increasing returns to scale, potential producers and customers would agree ex ante to a fair division of surplus. Such an ex ante agreement makes it easier for producers to gain a critical toehold in the market, fosters expansion, and allows consumers to receive more benefits from economies of scale. Therefore, a rule that favors fairness when the economically efficient rule is ambiguous may itself be the efficient rule. The Article concludes with an exploration of how a tiebreaker rule in favor of fairness would affect the analysis of intellectual property issues. The first conclusion is that there should be a legal presumption in favor of open standards except where efficiency concerns clearly dictate otherwise. The second conclusion is that the law should disfavor price discrimination and similar conduct by rights holders, again with the qualification that efficiency concerns may override this presumption.
{"title":"Why (and How) Fairness Matters at the IP/Antitrust Interface","authors":"D. Farber, Brett H. Mcdonnell","doi":"10.2139/SSRN.439040","DOIUrl":"https://doi.org/10.2139/SSRN.439040","url":null,"abstract":"This Article questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a widely shared social value, rules that promote a fair distribution of the economic surplus are likely to mimic what rational people would voluntarily have agreed to ex ante. Therefore, rules that favor fairness take into account the fact that a fair distribution is a social good for which people are willing to bargain. Second, rules based on fairness often lead to the economically efficient result even on welfarist terms. For example, where there are increasing returns to scale, potential producers and customers would agree ex ante to a fair division of surplus. Such an ex ante agreement makes it easier for producers to gain a critical toehold in the market, fosters expansion, and allows consumers to receive more benefits from economies of scale. Therefore, a rule that favors fairness when the economically efficient rule is ambiguous may itself be the efficient rule. The Article concludes with an exploration of how a tiebreaker rule in favor of fairness would affect the analysis of intellectual property issues. The first conclusion is that there should be a legal presumption in favor of open standards except where efficiency concerns clearly dictate otherwise. The second conclusion is that the law should disfavor price discrimination and similar conduct by rights holders, again with the qualification that efficiency concerns may override this presumption.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"87 1","pages":"1817-1870"},"PeriodicalIF":1.3,"publicationDate":"2003-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68785537","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}
Self-help plays a nearly unnoticed but increasingly important role in free speech jurisprudence. Under both the compelling interest and least restrictive means prongs of strict scrutiny, courts have determined the constitutionality of content-based restrictions on speech by comparing the efficacy of state action to that of alternative, self-help remedies. Courts and commentators, however, have yet to explore and justify how self-help does and should influence First Amendment law. Thanks largely to the obscuring effect of the captive audience doctrine, courts have invoked self-help in compelling interest inquiries in a consistent, but only implicit, manner. In contrast, although the Supreme Court has encouraged lower courts to consider self-help remedies as part of that inquiry, the Court itself has given similar consideration only very recently. The present paper thus analyzes the extant case law to reveal how self-help has powerfully affected free speech strict scrutiny jurisprudence. The paper moreover justifies self-help's role as consistent with a fundamental principle of governance: political entities should undertake only those projects that they can accomplish more effectively than can private ones. Evaluations of the relative efficacy of political and private means will change with the relevant facts, of course. As a general matter, however, technological advances giving private parties increasingly refined means of manipulating information should lead courts to reduce the permissible scope of state action. Just as we upgrade computer software to benefit from progressively better hardware, in other words, we should upgrade First Amendment jurisprudence to benefit from progressively better self-help.
{"title":"Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence","authors":"T. Bell","doi":"10.2139/SSRN.422621","DOIUrl":"https://doi.org/10.2139/SSRN.422621","url":null,"abstract":"Self-help plays a nearly unnoticed but increasingly important role in free speech jurisprudence. Under both the compelling interest and least restrictive means prongs of strict scrutiny, courts have determined the constitutionality of content-based restrictions on speech by comparing the efficacy of state action to that of alternative, self-help remedies. Courts and commentators, however, have yet to explore and justify how self-help does and should influence First Amendment law. Thanks largely to the obscuring effect of the captive audience doctrine, courts have invoked self-help in compelling interest inquiries in a consistent, but only implicit, manner. In contrast, although the Supreme Court has encouraged lower courts to consider self-help remedies as part of that inquiry, the Court itself has given similar consideration only very recently. The present paper thus analyzes the extant case law to reveal how self-help has powerfully affected free speech strict scrutiny jurisprudence. The paper moreover justifies self-help's role as consistent with a fundamental principle of governance: political entities should undertake only those projects that they can accomplish more effectively than can private ones. Evaluations of the relative efficacy of political and private means will change with the relevant facts, of course. As a general matter, however, technological advances giving private parties increasingly refined means of manipulating information should lead courts to reduce the permissible scope of state action. Just as we upgrade computer software to benefit from progressively better hardware, in other words, we should upgrade First Amendment jurisprudence to benefit from progressively better self-help.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"87 1","pages":"743"},"PeriodicalIF":1.3,"publicationDate":"2003-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68737779","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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