{"title":"Trial rights and psychotropic drugs: the case against administering involuntary medications to a defendant during trial.","authors":"Dora W Klein","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22328546","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 Supreme Court Justices' votes in Bush v. Gore revealed a doctrinal inversion. The conservative justices limited the Florida Supreme Court's power to construe state election law and embraced an expansive application of equal protection doctrine to determine the outcome of a presidential election, while the liberal justices advocated judicial restraint in presidential elections and respect for state court construction of state law. This anomaly invited claims in the popular press and in the legal academy that justices were behaving strategically, a timely observation given an increasing focus in recent judicial politics literature on strategic behavior by justices. In this Article, Professors Abramowicz and Stearns use Bush v. Gore to argue that although justices are influenced by their ideological preferences and at times act strategically, institutional norms and doctrine sharply constrain strategic behavior. At the same time, they show how judicial politics and social choice, disciplines generally treated separately, together illuminate case analysis. These theories, when deployed in tandem, explain not only the inversion described above, but also a number of other puzzling features of the various opinions. Based upon clearly articulated assumptions, Professors Abramowicz and Stearns combine judicial politics and social choice to explain, for example, why seven justices, including some who would have preferred a straight reversal and others who would have preferred a straight affirmance, acquiesced in finding an equal protection problem, while no other justices conceded to Chief Justice Rehnquist and Justices Scalia and Thomas in finding a violation of Article II, even though most commentators admit that whatever the overall merits of the case, the second argument was the stronger of the two. The Article further explains why the per curiam majority included a nominal remand, even though the mandate afforded the Florida Supreme Court no room to maneuver and was thus more consistent with a straight reversal. This case study not only provides answers to some of the most intriguing questions about Bush v. Gore, but also develops a technique for combining the tools of judicial politics and social choice, which bridges the demands of predictability of central concern to data-driven political scientists and an understanding of the nuances of doctrine of central concern to legal scholars.
{"title":"Beyond Counting Votes: The Political Economy of Bush v. Gore","authors":"M. Abramowicz, Maxwell L. Stearns","doi":"10.2139/SSRN.262571","DOIUrl":"https://doi.org/10.2139/SSRN.262571","url":null,"abstract":"The Supreme Court Justices' votes in Bush v. Gore revealed a doctrinal inversion. The conservative justices limited the Florida Supreme Court's power to construe state election law and embraced an expansive application of equal protection doctrine to determine the outcome of a presidential election, while the liberal justices advocated judicial restraint in presidential elections and respect for state court construction of state law. This anomaly invited claims in the popular press and in the legal academy that justices were behaving strategically, a timely observation given an increasing focus in recent judicial politics literature on strategic behavior by justices. In this Article, Professors Abramowicz and Stearns use Bush v. Gore to argue that although justices are influenced by their ideological preferences and at times act strategically, institutional norms and doctrine sharply constrain strategic behavior. At the same time, they show how judicial politics and social choice, disciplines generally treated separately, together illuminate case analysis. These theories, when deployed in tandem, explain not only the inversion described above, but also a number of other puzzling features of the various opinions. Based upon clearly articulated assumptions, Professors Abramowicz and Stearns combine judicial politics and social choice to explain, for example, why seven justices, including some who would have preferred a straight reversal and others who would have preferred a straight affirmance, acquiesced in finding an equal protection problem, while no other justices conceded to Chief Justice Rehnquist and Justices Scalia and Thomas in finding a violation of Article II, even though most commentators admit that whatever the overall merits of the case, the second argument was the stronger of the two. The Article further explains why the per curiam majority included a nominal remand, even though the mandate afforded the Florida Supreme Court no room to maneuver and was thus more consistent with a straight reversal. This case study not only provides answers to some of the most intriguing questions about Bush v. Gore, but also develops a technique for combining the tools of judicial politics and social choice, which bridges the demands of predictability of central concern to data-driven political scientists and an understanding of the nuances of doctrine of central concern to legal scholars.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68230281","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 uses social cognition literature to analyze one form of non-prototypic employment discrimination under the Americans with Disabilities Act of 1990 (ADA). When enacting the ADA, Congress recognized that discrimination against individuals with disabilities is so pervasive that it reaches beyond those who possess substantially limiting impairments. Therefore, the ADA protects not only individuals who have an actual disability, but also non-disabled individuals who are mistakenly regarded as disabled by their employer. The field of social cognition, particularly causal attribution theory, studies why, how, and when we misperceive other individuals' capabilities. By taking an interdisciplinary approach, this Article concludes that many perceived disabilities are likely to occur as the predictable byproduct of otherwise efficient and typically unconscious cognitive processes, rather than from the conscious application of group-based prejudice. This Article argues that these misperceptions should not be ignored, as many current courts are doing. However, it suggests conceptualizing this type of employment discrimination as a form of negligence or strict liability with limited remedies, as an alternative to relying solely on a model of intentional torts.
{"title":"Perceived Disabilities, Social Cognition, and 'Innocent' Mistakes","authors":"Michelle A. Travis","doi":"10.2139/SSRN.280395","DOIUrl":"https://doi.org/10.2139/SSRN.280395","url":null,"abstract":"This Article uses social cognition literature to analyze one form of non-prototypic employment discrimination under the Americans with Disabilities Act of 1990 (ADA). When enacting the ADA, Congress recognized that discrimination against individuals with disabilities is so pervasive that it reaches beyond those who possess substantially limiting impairments. Therefore, the ADA protects not only individuals who have an actual disability, but also non-disabled individuals who are mistakenly regarded as disabled by their employer. The field of social cognition, particularly causal attribution theory, studies why, how, and when we misperceive other individuals' capabilities. By taking an interdisciplinary approach, this Article concludes that many perceived disabilities are likely to occur as the predictable byproduct of otherwise efficient and typically unconscious cognitive processes, rather than from the conscious application of group-based prejudice. This Article argues that these misperceptions should not be ignored, as many current courts are doing. However, it suggests conceptualizing this type of employment discrimination as a form of negligence or strict liability with limited remedies, as an alternative to relying solely on a model of intentional torts.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.280395","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68338568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper argues that there has been an unfortunate lack of connection between the various forms of tort theory and ongoing efforts to improve or "reform" tort law. The reason for this, the paper suggests, is that, for the past twenty years, tort theory has focused on abstract normative theories such as corrctive justice and economic efficiency and has placed little emphasis on the real world operation of the tort system. Similarly, recent efforts by the ALI to restate tort law principles have concentrated upon the felicities of linguistic formulation rather than on the realities of the system. As an alternative to these approaches, the paper explores a more pragmatic approach that would focus less on the substance of tort doctrine and more on its procedural operation. This makes sense, I argue, because substantive tort doctrine generally consists of the application of general normative terms whose chief function is to structure jury deliberation of the underlying normative issues. For better or worse, it is the jury rather than tort doctrine that defines the "law" of torts. Tort law is one way that society deals with the unexpected and sometimes tragic course of human events and any attempt to improve tort law should be judged in terms of improving its efficancy in performing this function.
{"title":"A Pragmatic Approach to Improving Tort Law","authors":"C. P. Wells","doi":"10.2139/SSRN.274292","DOIUrl":"https://doi.org/10.2139/SSRN.274292","url":null,"abstract":"This paper argues that there has been an unfortunate lack of connection between the various forms of tort theory and ongoing efforts to improve or \"reform\" tort law. The reason for this, the paper suggests, is that, for the past twenty years, tort theory has focused on abstract normative theories such as corrctive justice and economic efficiency and has placed little emphasis on the real world operation of the tort system. Similarly, recent efforts by the ALI to restate tort law principles have concentrated upon the felicities of linguistic formulation rather than on the realities of the system. As an alternative to these approaches, the paper explores a more pragmatic approach that would focus less on the substance of tort doctrine and more on its procedural operation. This makes sense, I argue, because substantive tort doctrine generally consists of the application of general normative terms whose chief function is to structure jury deliberation of the underlying normative issues. For better or worse, it is the jury rather than tort doctrine that defines the \"law\" of torts. Tort law is one way that society deals with the unexpected and sometimes tragic course of human events and any attempt to improve tort law should be judged in terms of improving its efficancy in performing this function.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.274292","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282945","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":"Constitutional issues raised by states' exclusion of fertility drugs from Medicaid coverage in light of mandated coverage of Viagra.","authors":"E L Connolly","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25861218","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 his article entitled "The FTC as Internet Privacy Norm Entrepreneur," Professor Steven Hetcher takes a closer look into the Federal Trade Commission's efforts to promote online privacy by means of website privacy policies. In his analysis, Professor Hetcher employs a public choice approach to model the FTC's activities with the hope of better understanding what may really be motivating the FTC's policy choices. This article considers and rejects the supposition that the FTC's purported efforts to promote industry self-regulation indicate that the agency has been captured by the industry. Instead, Professor Hetcher charges that the FTC's endorsement of self-regulation of the Internet is simply a ruse whereby this powerful industry will come to completely dominate the personal data of the consuming public, resulting in the complete disappearance of individual informational privacy. This article considers the FTC's role as an internet privacy norm entrepreneur. Professor Hetcher argues that once websites are induced to make representations in writing via privacy policies, it is easier for the FTC to seek enforcement actions for deceptive trade practices. The FTC's promotion of privacy policies thus allows the agency to increase its jurisdiction. The FTC's seeming attempts to promote industry self-regulation have all the while been establishing the predicate for their jurisdictional grasp over website activities. Because the FTC is able to gain a jurisdictional foothold by means of promoting more respected website privacy norms, the agency is aptly characterized as an internet privacy norm entrepreneur.
Steven Hetcher教授在他题为《作为互联网隐私规范企业家的联邦贸易委员会》的文章中，深入研究了联邦贸易委员会通过网站隐私政策来促进在线隐私的努力。在他的分析中，赫切尔教授采用了一种公共选择的方法来模拟联邦贸易委员会的活动，希望能更好地理解是什么真正推动了联邦贸易委员会的政策选择。本文考虑并拒绝了这样一种假设，即联邦贸易委员会所谓的促进行业自律的努力表明该机构已被行业所俘获。相反，Hetcher教授指责联邦贸易委员会对互联网自我监管的认可仅仅是一个诡计，这个强大的行业将完全支配消费公众的个人数据，导致个人信息隐私的完全消失。本文考虑了联邦贸易委员会作为互联网隐私规范企业家的角色。赫切尔教授认为，一旦网站被诱使通过隐私政策做出书面陈述，联邦贸易委员会就更容易对欺骗性贸易行为采取执法行动。因此，联邦贸易委员会对隐私政策的促进使该机构能够扩大其管辖权。联邦贸易委员会表面上促进行业自律的努力，一直在为他们对网站活动的管辖权掌握奠定基础。由于联邦贸易委员会能够通过促进更受尊重的网站隐私规范来获得司法立足点，因此该机构被恰当地描述为互联网隐私规范的企业家。
{"title":"The FTC as Internet Privacy Norm Entrepreneur","authors":"S. Hetcher","doi":"10.2139/SSRN.253317","DOIUrl":"https://doi.org/10.2139/SSRN.253317","url":null,"abstract":"In his article entitled \"The FTC as Internet Privacy Norm Entrepreneur,\" Professor Steven Hetcher takes a closer look into the Federal Trade Commission's efforts to promote online privacy by means of website privacy policies. In his analysis, Professor Hetcher employs a public choice approach to model the FTC's activities with the hope of better understanding what may really be motivating the FTC's policy choices. This article considers and rejects the supposition that the FTC's purported efforts to promote industry self-regulation indicate that the agency has been captured by the industry. Instead, Professor Hetcher charges that the FTC's endorsement of self-regulation of the Internet is simply a ruse whereby this powerful industry will come to completely dominate the personal data of the consuming public, resulting in the complete disappearance of individual informational privacy. This article considers the FTC's role as an internet privacy norm entrepreneur. Professor Hetcher argues that once websites are induced to make representations in writing via privacy policies, it is easier for the FTC to seek enforcement actions for deceptive trade practices. The FTC's promotion of privacy policies thus allows the agency to increase its jurisdiction. The FTC's seeming attempts to promote industry self-regulation have all the while been establishing the predicate for their jurisdictional grasp over website activities. Because the FTC is able to gain a jurisdictional foothold by means of promoting more respected website privacy norms, the agency is aptly characterized as an internet privacy norm entrepreneur.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.253317","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194508","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 lack of detailed implications and general failure to come to grips with important features of tort doctrine have been substantial shortcomings in the dominant positive theory framework of Holmes and Posner. I extend the dominant framework below to enable it to justify various intentional tort doctrines, and the specific form and allocation of strict liability rules within tort law. After developing the positive framework, I apply it to the Restatement (Third) of Tort Law. The theory explains many of the detailed provisions and commentary of the Restatement, and identifies one area in which the Restatement (Third) seems inconsistent with tort doctrine. I also discuss the value of positive theory as a part of the Restatement project.
{"title":"The Theory of Tort Doctrine and the Restatement of Torts","authors":"Keith N. Hylton","doi":"10.2139/SSRN.258774","DOIUrl":"https://doi.org/10.2139/SSRN.258774","url":null,"abstract":"The lack of detailed implications and general failure to come to grips with important features of tort doctrine have been substantial shortcomings in the dominant positive theory framework of Holmes and Posner. I extend the dominant framework below to enable it to justify various intentional tort doctrines, and the specific form and allocation of strict liability rules within tort law. After developing the positive framework, I apply it to the Restatement (Third) of Tort Law. The theory explains many of the detailed provisions and commentary of the Restatement, and identifies one area in which the Restatement (Third) seems inconsistent with tort doctrine. I also discuss the value of positive theory as a part of the Restatement project.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68214132","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}
Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying the empirical issue of causal contribution and elaborating a comprehensive test, the "NESS" test, for resolving this issue. In this paper, which was prepared for the recent Wade Conference on the Third Restatement of Torts: General Principles, I revisit these issues. I focus more than I previously have on the Restatement's unhelpful, opaque, confused, and contradictory treatments of these issues, while also commenting on recent scholarship which fails to properly distinguish these issues. I defend the NESS test of causal contribution against some recent criticisms, propose a practical way of properly presenting the causal-contribution issue to students and jurors, criticize alternative proposed tests (including Jane Stapleton's "targeted but-for" test), further elaborate the notion of causal sufficiency (rather than mere analytical or empirical sufficiency) that underlies the NESS test, and provide a more detailed explanation of the NESS test's application to the conceptually most difficult types of causation cases, the overdetermined multiple-omission cases.
{"title":"Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility","authors":"R. W. Wright","doi":"10.2139/SSRN.254875","DOIUrl":"https://doi.org/10.2139/SSRN.254875","url":null,"abstract":"Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying the empirical issue of causal contribution and elaborating a comprehensive test, the \"NESS\" test, for resolving this issue. In this paper, which was prepared for the recent Wade Conference on the Third Restatement of Torts: General Principles, I revisit these issues. I focus more than I previously have on the Restatement's unhelpful, opaque, confused, and contradictory treatments of these issues, while also commenting on recent scholarship which fails to properly distinguish these issues. I defend the NESS test of causal contribution against some recent criticisms, propose a practical way of properly presenting the causal-contribution issue to students and jurors, criticize alternative proposed tests (including Jane Stapleton's \"targeted but-for\" test), further elaborate the notion of causal sufficiency (rather than mere analytical or empirical sufficiency) that underlies the NESS test, and provide a more detailed explanation of the NESS test's application to the conceptually most difficult types of causation cases, the overdetermined multiple-omission cases.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.254875","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68199757","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 number of commentators in recent years have suggested permitting holders of intellectual property rights to give up these rights in exchange for cash prizes from the government. In this Article, Professor Abramowicz shows that each of the proposals has significant flaws that would make implementation impractical and argues that no single perfect formula or algorithm for determining the size of prizes exists. A prize system is nonetheless worth pursuing because it could increase social welfare significantly by eliminating deadweight loss. Professor Abramowicz recommends a relatively simple approach that would complement rather than replace the patent system. The proposal is to establish an agency to distribute a fund that would be used to reward corporate efforts to reduce the monopoly effects of patent rights. As long as there is a substantial delay between the activities reducing deadweight loss and the granting of prizes, and as long as the rights to future prizes are tradable, granting of wide agency discretion has significant advantages and few drawbacks. Even assuming the agency is likely to do a poor job of distributing prizes, the system will be efficient if no biases in granting prizes are predictable. After addressing a variety of issues concerning the design of a prize system, Professor Abramowicz offers several potential applications for patent, copyright, and beyond.
{"title":"Perfecting Patent Prizes","authors":"M. Abramowicz","doi":"10.2139/SSRN.292079","DOIUrl":"https://doi.org/10.2139/SSRN.292079","url":null,"abstract":"A number of commentators in recent years have suggested permitting holders of intellectual property rights to give up these rights in exchange for cash prizes from the government. In this Article, Professor Abramowicz shows that each of the proposals has significant flaws that would make implementation impractical and argues that no single perfect formula or algorithm for determining the size of prizes exists. A prize system is nonetheless worth pursuing because it could increase social welfare significantly by eliminating deadweight loss. Professor Abramowicz recommends a relatively simple approach that would complement rather than replace the patent system. The proposal is to establish an agency to distribute a fund that would be used to reward corporate efforts to reduce the monopoly effects of patent rights. As long as there is a substantial delay between the activities reducing deadweight loss and the granting of prizes, and as long as the rights to future prizes are tradable, granting of wide agency discretion has significant advantages and few drawbacks. Even assuming the agency is likely to do a poor job of distributing prizes, the system will be efficient if no biases in granting prizes are predictable. After addressing a variety of issues concerning the design of a prize system, Professor Abramowicz offers several potential applications for patent, copyright, and beyond.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68432225","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}
At the center of our understandings of political equality and democratic governance lies what might be termed the "Free Speech Principle," the idea that liberal democracy both depends upon and is largely manifested by "uninhibited, robust, and wide-open" debate from "diverse and antagonistic sources." But absent preventative regulation, market hierarchy ? the state of substantial inequality of wealth increasingly prevalent in Western democracies, particularly the U.S. ? translates inevitably into what I refer to as "speech hierarchy" ? the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse. By effectively silencing outlying minorities and the poor, speech hierarchy runs directly counter to the Free Speech Principle. Moreover, contrary to what some commentators claim, the Internet offers no panacea for the problem of speech hierarchy because, I predict, in significant ways the next-generation Internet will closely resemble the centralized structure of traditional media markets. Copyright, which today affords content providers unprecedented expansive control over uses of expressive works, exacerbates speech hierarchy. It does so against the background of media consolidation and ownership of exclusive rights to vast inventories of existing expression. Copyright promotes speech hierarchy, both in the static sense (when prospective users are unable to obtain permission to use existing works) and the dynamic sense (by increasing the costs of expression for individuals and entities who must purchase expressive inputs from media conglomerates and by favoring entities that can engage in effective price discrimination in the sale of their expressive goods). Yet, I argue, despite its conflict with the Free Speech Principle, at least some measure of speech hierarchy is a necessary condition for liberal democracy. Liberal democracy requires media enterprises with the political independence and financial wherewithal to reach a mass audience, galvanize public opinion, and engage in sustained investigative reporting and critique - what we might term the "Free Press Principle" - no less than it requires wide-open debate from diverse sources - the Free Speech Principle. A universe of yeomen authors could not fulfill those functions. To the extent that speech hierarchy supports the Free Press Principle but runs counter to the Free Speech Principle, copyright law and media policy must seek to moderate between the two. They must enable, and indeed support, a degree of market hierarchy in the expressive sector even as they seek to ameliorate the most deleterious effects of media concentration and foster expression from a broad spectrum of adverse and antagonistic sources. The scope of copyright owner rights and limitations to those rights should be determined within that framework.
{"title":"Market Hierarchy and Copyright in Our System of Free Expression","authors":"N. Netanel","doi":"10.2139/SSRN.240308","DOIUrl":"https://doi.org/10.2139/SSRN.240308","url":null,"abstract":"At the center of our understandings of political equality and democratic governance lies what might be termed the \"Free Speech Principle,\" the idea that liberal democracy both depends upon and is largely manifested by \"uninhibited, robust, and wide-open\" debate from \"diverse and antagonistic sources.\" But absent preventative regulation, market hierarchy ? the state of substantial inequality of wealth increasingly prevalent in Western democracies, particularly the U.S. ? translates inevitably into what I refer to as \"speech hierarchy\" ? the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse. By effectively silencing outlying minorities and the poor, speech hierarchy runs directly counter to the Free Speech Principle. Moreover, contrary to what some commentators claim, the Internet offers no panacea for the problem of speech hierarchy because, I predict, in significant ways the next-generation Internet will closely resemble the centralized structure of traditional media markets. Copyright, which today affords content providers unprecedented expansive control over uses of expressive works, exacerbates speech hierarchy. It does so against the background of media consolidation and ownership of exclusive rights to vast inventories of existing expression. Copyright promotes speech hierarchy, both in the static sense (when prospective users are unable to obtain permission to use existing works) and the dynamic sense (by increasing the costs of expression for individuals and entities who must purchase expressive inputs from media conglomerates and by favoring entities that can engage in effective price discrimination in the sale of their expressive goods). Yet, I argue, despite its conflict with the Free Speech Principle, at least some measure of speech hierarchy is a necessary condition for liberal democracy. Liberal democracy requires media enterprises with the political independence and financial wherewithal to reach a mass audience, galvanize public opinion, and engage in sustained investigative reporting and critique - what we might term the \"Free Press Principle\" - no less than it requires wide-open debate from diverse sources - the Free Speech Principle. A universe of yeomen authors could not fulfill those functions. To the extent that speech hierarchy supports the Free Press Principle but runs counter to the Free Speech Principle, copyright law and media policy must seek to moderate between the two. They must enable, and indeed support, a degree of market hierarchy in the expressive sector even as they seek to ameliorate the most deleterious effects of media concentration and foster expression from a broad spectrum of adverse and antagonistic sources. The scope of copyright owner rights and limitations to those rights should be determined within that framework.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2000-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183017","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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