This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to detain people based on dangerousness. But they do suggest significant limitations on that power regarding acceptable methods of prediction, the nature and duration of preventive detention, the threshold conduct that can trigger such detention, and the extent to which it can replace punishment as the official response to antisocial behavior. On the latter issue, the central conclusion is that preventive detention which functions as a substitute for punishment, as in the case of sexual predator statutes, is only permissible if certain psychological and predictive criteria are met. The rest of the paper develops these criteria. It argues that the psychological criterion should be undeterrability, defined as the characteristic ignorance that one's criminal activity is criminal or a characteristic willingness to commit crime despite certain and significant punishment, a definition that differs from both the usual academic stance and the Supreme Court's inability-to-control formulation. The paper next argues that selection of a prediction criterion should be informed by two principles, the proportionality principle (which varies the legally requisite level of dangerousness with the nature and duration of the state's intervention) and the consistency principle (which takes as a reference point the implicit dangerousness assessments in the law of crimes). Finally, the paper explores some of the implications of the latter principle for the criminal law, including the possibility that some crimes - in particular various possession offenses, reckless endangerment and vagrancy - violate the fundamental norms of the police power authority.
{"title":"A Jurisprudence of Dangerousness","authors":"C. Slobogin","doi":"10.2139/SSRN.305459","DOIUrl":"https://doi.org/10.2139/SSRN.305459","url":null,"abstract":"This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called \"sexual predators,\" this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to detain people based on dangerousness. But they do suggest significant limitations on that power regarding acceptable methods of prediction, the nature and duration of preventive detention, the threshold conduct that can trigger such detention, and the extent to which it can replace punishment as the official response to antisocial behavior. On the latter issue, the central conclusion is that preventive detention which functions as a substitute for punishment, as in the case of sexual predator statutes, is only permissible if certain psychological and predictive criteria are met. The rest of the paper develops these criteria. It argues that the psychological criterion should be undeterrability, defined as the characteristic ignorance that one's criminal activity is criminal or a characteristic willingness to commit crime despite certain and significant punishment, a definition that differs from both the usual academic stance and the Supreme Court's inability-to-control formulation. The paper next argues that selection of a prediction criterion should be informed by two principles, the proportionality principle (which varies the legally requisite level of dangerousness with the nature and duration of the state's intervention) and the consistency principle (which takes as a reference point the implicit dangerousness assessments in the law of crimes). Finally, the paper explores some of the implications of the latter principle for the criminal law, including the possibility that some crimes - in particular various possession offenses, reckless endangerment and vagrancy - violate the fundamental norms of the police power authority.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68518932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states on the interstate plane.
{"title":"Making Sense of the Eleventh Amendment: International Law and State Sovereignty","authors":"Thomas H. Lee","doi":"10.2139/SSRN.434380","DOIUrl":"https://doi.org/10.2139/SSRN.434380","url":null,"abstract":"The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states on the interstate plane.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68778088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects - in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority - is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as doing justice, that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversel
{"title":"The Utility of Desert","authors":"P. Robinson, J. Darley","doi":"10.2139/SSRN.10195","DOIUrl":"https://doi.org/10.2139/SSRN.10195","url":null,"abstract":"The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real power to gain compliance with society's rules of prescribed conduct lies not in the threat or reality of official criminal sanction, but in the power of the intertwined forces of social and individual moral control. The networks of interpersonal relationships in which people find themselves, the social norms and prohibitions shared among those relationships and transmitted through those social networks, and the internalized representations of those norms and moral precepts are what cause people to obey the law. The law is not irrelevant to these social and personal forces. Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms. In fact, in a society as diverse as ours, the criminal law may be the only society-wide mechanism that transcends cultural and ethnic differences. Thus, the criminal law's most important real world effect may be its ability to assist in the building, shaping, and maintaining of these norms and moral principles. It can contribute to and harness the compliance-producing power of interpersonal relationships and personal morality. The criminal law can have a second effect in gaining compliance with its commands. If it earns a reputation as a reliable statement of what the community, given sufficient information and time to reflect, would perceive as condemnable, people are more likely to defer to its commands as morally authoritative and as appropriate to follow in those borderline cases where the propriety of certain conduct is unsettled or ambiguous in the mind of the actor. The extent of the criminal law's effectiveness in both these respects - in facilitating and communicating societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority - is to a great extent dependent on the degree of moral credibility that the criminal law has achieved in the minds of the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as doing justice, that is, if it assigns liability and punishment in ways that the community perceives as consistent with the community's principles of appropriate liability and punishment. Conversel","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores whether Title IX's proportionality requirement can be justified under any of three standard civil rights frameworks. The proportionality requirement has been widely criticized for failing to follow the "careers open to talents" model enforced by Title VII. The paper argues that the critics are correct that the proportionality requirement is inconsistent with the careers open to talents model but contends that the critics' own distribution proposals are also inconsistent with this model. The paper next considers whether the proportionality requirement can be justified by either of two other civil rights models: a utilitarian model (of the sort that underlies the Individuals with Disabilities Education Act) and what is referred to in the text as a tool-giving model (of the sort that underlies the school financing cases). Neither model provides an adequate justification for the proportionality requirement, however. Finally, the paper examines whether the proportionality requirement might best and most honestly be justified on the grounds that it encourages girls to participate in activities and develop traits and attributes that are widely socially valued. The paper concludes that the proportionality requirement is indeed best understood and justified as an openly "perfectionist" resocialization measure.
{"title":"One for You and One for Me: Is Title IX's Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible?","authors":"K. Yuracko","doi":"10.2139/SSRN.384960","DOIUrl":"https://doi.org/10.2139/SSRN.384960","url":null,"abstract":"This paper explores whether Title IX's proportionality requirement can be justified under any of three standard civil rights frameworks. The proportionality requirement has been widely criticized for failing to follow the \"careers open to talents\" model enforced by Title VII. The paper argues that the critics are correct that the proportionality requirement is inconsistent with the careers open to talents model but contends that the critics' own distribution proposals are also inconsistent with this model. The paper next considers whether the proportionality requirement can be justified by either of two other civil rights models: a utilitarian model (of the sort that underlies the Individuals with Disabilities Education Act) and what is referred to in the text as a tool-giving model (of the sort that underlies the school financing cases). Neither model provides an adequate justification for the proportionality requirement, however. Finally, the paper examines whether the proportionality requirement might best and most honestly be justified on the grounds that it encourages girls to participate in activities and develop traits and attributes that are widely socially valued. The paper concludes that the proportionality requirement is indeed best understood and justified as an openly \"perfectionist\" resocialization measure.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68659593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper develops and attempts to justify criteria for judging the quality of a criminal code in performing its functions. It translates the abstract criteria into a workable code evaluation scheme, then applies the scheme to the fifty-two American criminal codes, ending with a ranking of those codes. Examples of good and bad code provisions are used in the discussion to illustrate the evaluation criteria.
{"title":"The Five Worst (and Five Best) American Criminal Codes","authors":"P. Robinson, Michael T. Cahill, Usman Mohammad","doi":"10.2139/SSRN.183290","DOIUrl":"https://doi.org/10.2139/SSRN.183290","url":null,"abstract":"This paper develops and attempts to justify criteria for judging the quality of a criminal code in performing its functions. It translates the abstract criteria into a workable code evaluation scheme, then applies the scheme to the fifty-two American criminal codes, ending with a ranking of those codes. Examples of good and bad code provisions are used in the discussion to illustrate the evaluation criteria.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.183290","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67756602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Squandering the gain: gainsharing and the continuing dilemma of physician financial incentives.","authors":"Richard S Saver","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25645810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To understand how people behave in an uncertain world - and to make viable recommendations about how the law should try to shape that behavior - legal scholars must employ a model or theory of decision making. Only with an understanding of how people are likely to respond to legal rules can legal scholars, judges, legislators, and regulators craft rules that are likely to encourage desirable behavior and discourage undesirable behavior. Rather than rely on rational choice theory, behavioral law and economics scholars (or legal decision theorists) have turned to Daniel Kahneman and Amos Tversky's "prospect theory" to inform their analyses of law and legal behavior. Prospect theory contains several empirical propositions relevant to legal analysis, but this paper focuses primarily on prospect theory's insight that people often make risk-averse choices when selecting between "gains" and risk-seeking choices when selecting between "losses." The paper surveys efforts in the legal literature to use this insight to inform the way legal scholars think about law and behavior in several doctrinal areas. The paper acknowledges some limitations associated with this work (e.g., external validity, differences in individual decision making, differences in group vs. individual decision making), but it concludes that prospect theory is nonetheless a valuable tool for legal scholars and policy makers.
{"title":"Prospect Theory, Risk Preference, and the Law","authors":"C. Guthrie","doi":"10.2139/SSRN.344600","DOIUrl":"https://doi.org/10.2139/SSRN.344600","url":null,"abstract":"To understand how people behave in an uncertain world - and to make viable recommendations about how the law should try to shape that behavior - legal scholars must employ a model or theory of decision making. Only with an understanding of how people are likely to respond to legal rules can legal scholars, judges, legislators, and regulators craft rules that are likely to encourage desirable behavior and discourage undesirable behavior. Rather than rely on rational choice theory, behavioral law and economics scholars (or legal decision theorists) have turned to Daniel Kahneman and Amos Tversky's \"prospect theory\" to inform their analyses of law and legal behavior. Prospect theory contains several empirical propositions relevant to legal analysis, but this paper focuses primarily on prospect theory's insight that people often make risk-averse choices when selecting between \"gains\" and risk-seeking choices when selecting between \"losses.\" The paper surveys efforts in the legal literature to use this insight to inform the way legal scholars think about law and behavior in several doctrinal areas. The paper acknowledges some limitations associated with this work (e.g., external validity, differences in individual decision making, differences in group vs. individual decision making), but it concludes that prospect theory is nonetheless a valuable tool for legal scholars and policy makers.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.344600","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68594124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most legal scholarship implicitly adopts the assumption of the Coase Theorem that the value an individual places on a legal entitlement is independent of whether or not the individual has physical possession of or a legal right to that entitlement. This is true of both traditional law and economics analysis concerned with the efficient allocation of resources and scholarship that is not self-consciously in the law and economics tradition but is concerned with law's effects on incentives. A robust body of social science scholarship, however, demonstrates that the assumption is incorrect, at least in many circumstances. The much studied "endowment effect" is that people tend to value goods more when they own them than when they do not. A consequence of the endowment effect is the "offer-asking gap", which is the empirically observed phenomenon that people will often demand a higher price to sell a good that they possess than they would pay for the same entitlement if they did not possess it at present. A third term - the "status quo bias" - is often used interchangeably with the other two, but actually has a slightly broader connotation: individuals tend to prefer the present state of the world to alternative states, all other things being equal. Whatever the label, this insight is the most significant finding from behavioral economics for legal analysis to date. This article reviews the empirical evidence of the endowment effect and considers a variety of possible causes of the effect. It then explores how the endowment effect can affect the positive and normative analysis of legal rules that (1) assign or transfer legal entitlements, (2) facilitate the private exchange of legal entitlements, and (3) enforce the rules of property and contract. The discussion demonstrates that the endowment effect is relevant to the analysis of virtually every field of law. It also shows that careful normative legal analysis based on the endowment effect must take into account the context-dependent nature of the effect and the causes of the effect, neither of which are fully understood. Thus, when the endowment effect is used as a basis for normative claims, these claims must often be qualified and contingent.
{"title":"The Endowment Effect and Legal Analysis","authors":"R. Korobkin","doi":"10.2139/SSRN.326360","DOIUrl":"https://doi.org/10.2139/SSRN.326360","url":null,"abstract":"Most legal scholarship implicitly adopts the assumption of the Coase Theorem that the value an individual places on a legal entitlement is independent of whether or not the individual has physical possession of or a legal right to that entitlement. This is true of both traditional law and economics analysis concerned with the efficient allocation of resources and scholarship that is not self-consciously in the law and economics tradition but is concerned with law's effects on incentives. A robust body of social science scholarship, however, demonstrates that the assumption is incorrect, at least in many circumstances. The much studied \"endowment effect\" is that people tend to value goods more when they own them than when they do not. A consequence of the endowment effect is the \"offer-asking gap\", which is the empirically observed phenomenon that people will often demand a higher price to sell a good that they possess than they would pay for the same entitlement if they did not possess it at present. A third term - the \"status quo bias\" - is often used interchangeably with the other two, but actually has a slightly broader connotation: individuals tend to prefer the present state of the world to alternative states, all other things being equal. Whatever the label, this insight is the most significant finding from behavioral economics for legal analysis to date. This article reviews the empirical evidence of the endowment effect and considers a variety of possible causes of the effect. It then explores how the endowment effect can affect the positive and normative analysis of legal rules that (1) assign or transfer legal entitlements, (2) facilitate the private exchange of legal entitlements, and (3) enforce the rules of property and contract. The discussion demonstrates that the endowment effect is relevant to the analysis of virtually every field of law. It also shows that careful normative legal analysis based on the endowment effect must take into account the context-dependent nature of the effect and the causes of the effect, neither of which are fully understood. Thus, when the endowment effect is used as a basis for normative claims, these claims must often be qualified and contingent.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.326360","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68579812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On its face, state corporate law contains a mix of mandatory and default rules. I develop the "triviality hypothesis" that the appearance of a mandatory core to state corporate law is a mirage, and that state corporate law is trivial, in the sense that it lets companies -- managers and investors together -- establish any set of governance rules they would reasonably want. Rules that appear mandatory may be trivial for four reasons. First, some mandatory rules would be universally adopted if people thought about them ("market mimicking" rules). Second, some rules can be avoided by advance planning, including choice of capital structure and state of incorporation. Third, some mandatory rules are unimportant -- they cover situations that occur rarely or matter little. Finally, as circumstances change, some rules that used to be market mimicking, avoidable, or unimportant may matter, but precisely because these rules matter, they will soon be changed. The political forces that led to the trivialization of corporate law will see to that. Many apparently mandatory corporate law rules are trivial in one of these senses. Moreover, proving that nontrivial rules exist is hard. It is not trivial to disprove the extreme null hypothesis that all of state corporate law is trivial.
{"title":"Is Corporate Law Trivial?: A Political and Economic Analysis","authors":"Bernard Black","doi":"10.2139/SSRN.329240","DOIUrl":"https://doi.org/10.2139/SSRN.329240","url":null,"abstract":"On its face, state corporate law contains a mix of mandatory and default rules. I develop the \"triviality hypothesis\" that the appearance of a mandatory core to state corporate law is a mirage, and that state corporate law is trivial, in the sense that it lets companies -- managers and investors together -- establish any set of governance rules they would reasonably want. Rules that appear mandatory may be trivial for four reasons. First, some mandatory rules would be universally adopted if people thought about them (\"market mimicking\" rules). Second, some rules can be avoided by advance planning, including choice of capital structure and state of incorporation. Third, some mandatory rules are unimportant -- they cover situations that occur rarely or matter little. Finally, as circumstances change, some rules that used to be market mimicking, avoidable, or unimportant may matter, but precisely because these rules matter, they will soon be changed. The political forces that led to the trivialization of corporate law will see to that. Many apparently mandatory corporate law rules are trivial in one of these senses. Moreover, proving that nontrivial rules exist is hard. It is not trivial to disprove the extreme null hypothesis that all of state corporate law is trivial.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68582605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that the common wisdom on the USA Patriot Act is wrong. Far from being a significant expansion of law enforcement powers online, the Patriot Act actually changed Internet surveillance law in only minor ways and added several key privacy protections. The article focuses on three specific provisions of the Patriot Act: the provision applying the pen register law to the Internet, the provisions relating to Carnivore, and the new computer trespasser exception to the Wiretap Act. By explaining the basic framework of surveillance law and applying it to the Patriot Act, the author shows how the Internet surveillance provisions of the Patriot Act updated the law in ways that both law enforcement and civil libertarians should appreciate.
{"title":"Internet Surveillance Law after the USA Patriot Act: The Big Brother that Isn't","authors":"Orin S. Kerr","doi":"10.2139/SSRN.317501","DOIUrl":"https://doi.org/10.2139/SSRN.317501","url":null,"abstract":"This article argues that the common wisdom on the USA Patriot Act is wrong. Far from being a significant expansion of law enforcement powers online, the Patriot Act actually changed Internet surveillance law in only minor ways and added several key privacy protections. The article focuses on three specific provisions of the Patriot Act: the provision applying the pen register law to the Internet, the provisions relating to Carnivore, and the new computer trespasser exception to the Wiretap Act. By explaining the basic framework of surveillance law and applying it to the Patriot Act, the author shows how the Internet surveillance provisions of the Patriot Act updated the law in ways that both law enforcement and civil libertarians should appreciate.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2002-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.317501","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68569252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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