{"title":"Who decides? Genital-normalizing surgery on intersexed infants.","authors":"Alyssa Connell Lareau","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"92 1","pages":"129-51"},"PeriodicalIF":2.0,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25740735","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 Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.
{"title":"Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?","authors":"G. Charles","doi":"10.2139/SSRN.463280","DOIUrl":"https://doi.org/10.2139/SSRN.463280","url":null,"abstract":"This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"11 1","pages":"575"},"PeriodicalIF":2.0,"publicationDate":"2003-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82823606","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":"The scope of utility in the twenty-first century: new guidance for gene-related patents.","authors":"Teresa M Summers","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"91 2","pages":"475-509"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24437297","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 shows how many disputes within Internet law are rooted in a common problem, the problem of perspective. Whenever we apply law to the Internet, we must first choose a perspective from which to model the facts of the Internet. Do we follow reality or virtual reality? We can adopt a user's internal perspective, and view the Internet as the virtual world of cyberspace, or else we can adopt an external perspective and view the Internet as a physical network. The article explains how the problem of perspective pervades the law of the Internet, and offers several strategies that courts can use to select a perspective in a given case.
{"title":"The Problem of Perspective in Internet Law","authors":"Orin S. Kerr","doi":"10.2139/SSRN.310020","DOIUrl":"https://doi.org/10.2139/SSRN.310020","url":null,"abstract":"This article shows how many disputes within Internet law are rooted in a common problem, the problem of perspective. Whenever we apply law to the Internet, we must first choose a perspective from which to model the facts of the Internet. Do we follow reality or virtual reality? We can adopt a user's internal perspective, and view the Internet as the virtual world of cyberspace, or else we can adopt an external perspective and view the Internet as a physical network. The article explains how the problem of perspective pervades the law of the Internet, and offers several strategies that courts can use to select a perspective in a given case.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"63 1","pages":"357"},"PeriodicalIF":2.0,"publicationDate":"2002-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83447632","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 piece is a response to an article by Andrew Guzman, which proffers an efficiency framework for choice-of-law problems in interjurisdictional conflicts. The response incorporates insights from public choice theory into choice of law to draw two conclusions. First, public choice theory confounds our attempts to draw normative conclusions about efficient choice-of-law policies. Second, assuming that we can overcome these difficulties to ascertain the content of efficient choice-of-law policies, public choice theory exposes the practical difficulties of moving courts toward more efficient choice-of-law decisions. In short, the problem is both more difficult and more elusive than others, including Guzman, have presupposed.
{"title":"Economics, Public Choice and the Perennial Conflict of Laws","authors":"O. O'Connor, A. Erin","doi":"10.2139/SSRN.293000","DOIUrl":"https://doi.org/10.2139/SSRN.293000","url":null,"abstract":"This piece is a response to an article by Andrew Guzman, which proffers an efficiency framework for choice-of-law problems in interjurisdictional conflicts. The response incorporates insights from public choice theory into choice of law to draw two conclusions. First, public choice theory confounds our attempts to draw normative conclusions about efficient choice-of-law policies. Second, assuming that we can overcome these difficulties to ascertain the content of efficient choice-of-law policies, public choice theory exposes the practical difficulties of moving courts toward more efficient choice-of-law decisions. In short, the problem is both more difficult and more elusive than others, including Guzman, have presupposed.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"12 1","pages":"941"},"PeriodicalIF":2.0,"publicationDate":"2001-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75346911","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}
peculiarities uncertainties in primary ballot access cases, constitutionality in the abstract. The position of the primary in the overall electoral scheme, the type of office for which the primary is nominating candidates, and the nature of the state or party interests used to justify the law will all bear on whether a given set of rules violates voter or candidate rights. Because the current case law is hampered by uncomfortable analogies to general election ballot access cases or other party autonomy or freedom of association cases, much work remains to be done in constructing a coherent jurisprudence of primary ballot access. Although several of the ideas expressed in this Article must be tagged thought experiments given the treacherous directions toward which they might lead, I hope they provide a starting point for such a discussion.
{"title":"Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws","authors":"N. Persily","doi":"10.7916/D8PN9G3B","DOIUrl":"https://doi.org/10.7916/D8PN9G3B","url":null,"abstract":"peculiarities uncertainties in primary ballot access cases, constitutionality in the abstract. The position of the primary in the overall electoral scheme, the type of office for which the primary is nominating candidates, and the nature of the state or party interests used to justify the law will all bear on whether a given set of rules violates voter or candidate rights. Because the current case law is hampered by uncomfortable analogies to general election ballot access cases or other party autonomy or freedom of association cases, much work remains to be done in constructing a coherent jurisprudence of primary ballot access. Although several of the ideas expressed in this Article must be tagged thought experiments given the treacherous directions toward which they might lead, I hope they provide a starting point for such a discussion.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"10 1","pages":"2181-2225"},"PeriodicalIF":2.0,"publicationDate":"2001-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74862398","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 American law of parent and child is conventionally understood to be extremely deferential to parental prerogatives and highly reluctant to intervene. But this picture, endorsed by legal authorities and popular commentators from the nineteenth century to the present day, reflects only one tradition in the law's regulation of parenthood. Since the last quarter of the nineteenth century, there has also been massive legal intervention into the parental relation. This second legal tradition, moreover, has been guided by norms wholly different from those conventionally associated with family law, often evincing a radical suspicion of parental autonomy and an eager willingness to reshape family relations. This Article explores how the divide in the laws and norms governing the parental relation emerged and maintained itself, tracing an important chapter in the history of the law's regulation of family life. It then uses this history to examine why the divide has survived the modern constitutional era.
{"title":"Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations","authors":"J. Hasday","doi":"10.2139/SSRN.271688","DOIUrl":"https://doi.org/10.2139/SSRN.271688","url":null,"abstract":"The American law of parent and child is conventionally understood to be extremely deferential to parental prerogatives and highly reluctant to intervene. But this picture, endorsed by legal authorities and popular commentators from the nineteenth century to the present day, reflects only one tradition in the law's regulation of parenthood. Since the last quarter of the nineteenth century, there has also been massive legal intervention into the parental relation. This second legal tradition, moreover, has been guided by norms wholly different from those conventionally associated with family law, often evincing a radical suspicion of parental autonomy and an eager willingness to reshape family relations. This Article explores how the divide in the laws and norms governing the parental relation emerged and maintained itself, tracing an important chapter in the history of the law's regulation of family life. It then uses this history to examine why the divide has survived the modern constitutional era.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"124 1","pages":"299-386"},"PeriodicalIF":2.0,"publicationDate":"2001-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76901924","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 Internet offers the fastest reproduction and distribution of information ever known, presenting fundamental challenges to copyright law. Practically anyone with a personal computer can receive and send information over the Internet, and so practically anyone has access to copyrighted works and can duplicate them, adapt them, or disseminate them. From the perspective of a copyright holder, even a single innocent use represents a threat. This Article examines the controversial proposal that Internet Service Providers ("ISPs") be held liable for the copyright infringements of the subscribers. The Article takes the position that the existing case law considering ISP liability for subscriber copyright infringement - under theories of direct liability, vicarious liability, and contributory liability - thus far has struck an acceptable balance between the property interests of copyright holders and the First Amendment rights of subscribers. The Article supports this contention with an examination of the rationales underlying the closely analogous field of enterprise liability in tort. It then examines recent Congressional legislation - the Digital Millenium Copyright Act ("DMCA") - providing "safe harbors" for ISP liability. The Article concludes that the DMCA, unless properly interpreted, threatens to upset the balance struck by the case law by creating an incentive to unduly restrict the free speech of subscribers.
{"title":"Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment","authors":"Alfred C. Yen","doi":"10.2139/SSRN.236478","DOIUrl":"https://doi.org/10.2139/SSRN.236478","url":null,"abstract":"The Internet offers the fastest reproduction and distribution of information ever known, presenting fundamental challenges to copyright law. Practically anyone with a personal computer can receive and send information over the Internet, and so practically anyone has access to copyrighted works and can duplicate them, adapt them, or disseminate them. From the perspective of a copyright holder, even a single innocent use represents a threat. This Article examines the controversial proposal that Internet Service Providers (\"ISPs\") be held liable for the copyright infringements of the subscribers. The Article takes the position that the existing case law considering ISP liability for subscriber copyright infringement - under theories of direct liability, vicarious liability, and contributory liability - thus far has struck an acceptable balance between the property interests of copyright holders and the First Amendment rights of subscribers. The Article supports this contention with an examination of the rationales underlying the closely analogous field of enterprise liability in tort. It then examines recent Congressional legislation - the Digital Millenium Copyright Act (\"DMCA\") - providing \"safe harbors\" for ISP liability. The Article concludes that the DMCA, unless properly interpreted, threatens to upset the balance struck by the case law by creating an incentive to unduly restrict the free speech of subscribers.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"10 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2000-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75214299","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 presents a framework for understanding the relationship between rational choice and emotional behavior. Emotions are interpreted as temporary albeit predictable changes in preferences, abilities, and beliefs. People act rationally in anticipation of their own emotional reactions to provocations and other stimuli; they also act rationally when under the influence of emotion. The law needs to take account of both of these effects. The paper discusses (1) the sanction for murders committed under the influence of rage or hate, (2) the treatment of prejudicial evidence such as gory photographs, (3) safety regulation when individuals are subject to fear or dread, (4) contract and judicial remedies when parties become angry at each other, and (5) cost-benefit analysis of projects that provoke emotional responses.
{"title":"Law and the Emotions","authors":"E. Posner","doi":"10.2139/SSRN.241389","DOIUrl":"https://doi.org/10.2139/SSRN.241389","url":null,"abstract":"This paper presents a framework for understanding the relationship between rational choice and emotional behavior. Emotions are interpreted as temporary albeit predictable changes in preferences, abilities, and beliefs. People act rationally in anticipation of their own emotional reactions to provocations and other stimuli; they also act rationally when under the influence of emotion. The law needs to take account of both of these effects. The paper discusses (1) the sanction for murders committed under the influence of rage or hate, (2) the treatment of prejudicial evidence such as gory photographs, (3) safety regulation when individuals are subject to fear or dread, (4) contract and judicial remedies when parties become angry at each other, and (5) cost-benefit analysis of projects that provoke emotional responses.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"48 1","pages":"1977"},"PeriodicalIF":2.0,"publicationDate":"2000-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73534285","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 develops a new approach to choice of law. Founded on economic principles rather than the notions of sovereignty that are typically used by choice of law scholars, it seeks to build new foundations for choice of law scholarship. The analysis in the Article makes it possible to discuss alternative choice of law rules in terms of their impact on the well-being of individuals. In other words, it makes it possible to consider questions of efficiency within a choice of law discussion. The Article traces how the self-interested behavior of nations is at odds with globally efficient rules, and shows how choice of law rules can impact the incentives of countries. The analysis yields eight “choice of law lessons†that help explain the impact of choice of law rules. From these lessons emerge several policies that provide countries with an incentive to regulate more efficiently. The Article then applies its analysis to several specific substantive law topics – bankruptcy, securities, and antitrust – demonstrating how the framework of the Article can be applied in particular cases. The role of international institutions is also examined. It is shown that they represent an effective tool to facilitate negotiations over choice of law issues in certain cases, but not in others. This discussion informs a variety of current issues. For example, it explains why negotiations over international competition policy and environmental policy should be carried out within the WTO rather than in a separate forum.
{"title":"Choice of Law: New Foundations","authors":"Andrew T. Guzman","doi":"10.2139/SSRN.237802","DOIUrl":"https://doi.org/10.2139/SSRN.237802","url":null,"abstract":"This Article develops a new approach to choice of law. Founded on economic principles rather than the notions of sovereignty that are typically used by choice of law scholars, it seeks to build new foundations for choice of law scholarship. The analysis in the Article makes it possible to discuss alternative choice of law rules in terms of their impact on the well-being of individuals. In other words, it makes it possible to consider questions of efficiency within a choice of law discussion. The Article traces how the self-interested behavior of nations is at odds with globally efficient rules, and shows how choice of law rules can impact the incentives of countries. The analysis yields eight “choice of law lessons†that help explain the impact of choice of law rules. From these lessons emerge several policies that provide countries with an incentive to regulate more efficiently. The Article then applies its analysis to several specific substantive law topics – bankruptcy, securities, and antitrust – demonstrating how the framework of the Article can be applied in particular cases. The role of international institutions is also examined. It is shown that they represent an effective tool to facilitate negotiations over choice of law issues in certain cases, but not in others. This discussion informs a variety of current issues. For example, it explains why negotiations over international competition policy and environmental policy should be carried out within the WTO rather than in a separate forum.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"24 1","pages":"883"},"PeriodicalIF":2.0,"publicationDate":"2000-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74365810","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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