This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling. In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation's gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization. Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that-if history is any guide-overwhelmingly will be imposed on Black and Brown communities.
{"title":"POLICING IN THE AGE OF THE GUN.","authors":"Brandon Del Pozo, Barry Friedman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling. In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation's gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization. Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that-if history is any guide-overwhelmingly will be imposed on Black and Brown communities.</p>","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10771078/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139378559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously — at least in part in response to the civil rights movement and the Civil Rights Act — an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women — and men — across many industries. In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality — cohesion, unity — in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits — whether brought by individuals of any gender or by physicians — have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a
{"title":"Reinvigorating Commonality: Gender & Class Actions","authors":"Brooke D. Coleman, Elizabeth G. Porter","doi":"10.2139/SSRN.3057660","DOIUrl":"https://doi.org/10.2139/SSRN.3057660","url":null,"abstract":"The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously — at least in part in response to the civil rights movement and the Civil Rights Act — an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women — and men — across many industries. \u0000In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality — cohesion, unity — in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. \u0000This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits — whether brought by individuals of any gender or by physicians — have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78662573","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}
Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.
{"title":"The Evidentiary Rules of Engagement in the War Against Domestic Violence","authors":"Erin R. Collins","doi":"10.31228/osf.io/7etmh","DOIUrl":"https://doi.org/10.31228/osf.io/7etmh","url":null,"abstract":"Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2014-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89103338","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}
Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims. Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: The openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.
{"title":"A Dose of Reality for Medical Malpractice Reform","authors":"Joanna C. Schwartz","doi":"10.2139/SSRN.2104964","DOIUrl":"https://doi.org/10.2139/SSRN.2104964","url":null,"abstract":"Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims. Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: The openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2013-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78435879","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 examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation. Yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically undertheorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.This Article begins, in Parts I-III, by identifying the three criteria that should govern the deference question. Part I argues that courts should consider whether the deference claim is based on a justification of expertise or authority. This distinction tracks a similar distinction made in the context of administrative agency claims for deference in interpreting statutes. Obviously, this latter context is quite different from the one considered in this Article; still, lessons from that doctrine help us understand how expertise and authority justifications should influence the deference question this Article considers. Part II explains how deference claims require consideration of the type of fact at issue. It proposes a rough taxonomy of facts whose distinctions are relevant to the deference question, and explains how those distinctions address that question. Part III then then explains how deference claims turn on the details of the underlying doctrine the finding seeks to apply.Based on the insights gleaned from this analysis, Part IV identifies six principles guiding the deference inquiry. One of these principles suggests, contrary to conventional wisdom, that empirical findings merit the least judicial deference. Another principle analogizes to equal protection law to explain why findings that precisely target a constitutional rule may also be appropriately subject to more searching judicial scrutiny. Part V applies these principles to congressional deference claims in several very different contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. The Article concludes with a call for further research in order to continue finding better resolutions to this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.
{"title":"Deference to Congressional Factfinding in Rights-Enforcing and Rights-Limiting Legislation","authors":"William D. Araiza","doi":"10.2139/SSRN.2064890","DOIUrl":"https://doi.org/10.2139/SSRN.2064890","url":null,"abstract":"This article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation. Yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically undertheorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.This Article begins, in Parts I-III, by identifying the three criteria that should govern the deference question. Part I argues that courts should consider whether the deference claim is based on a justification of expertise or authority. This distinction tracks a similar distinction made in the context of administrative agency claims for deference in interpreting statutes. Obviously, this latter context is quite different from the one considered in this Article; still, lessons from that doctrine help us understand how expertise and authority justifications should influence the deference question this Article considers. Part II explains how deference claims require consideration of the type of fact at issue. It proposes a rough taxonomy of facts whose distinctions are relevant to the deference question, and explains how those distinctions address that question. Part III then then explains how deference claims turn on the details of the underlying doctrine the finding seeks to apply.Based on the insights gleaned from this analysis, Part IV identifies six principles guiding the deference inquiry. One of these principles suggests, contrary to conventional wisdom, that empirical findings merit the least judicial deference. Another principle analogizes to equal protection law to explain why findings that precisely target a constitutional rule may also be appropriately subject to more searching judicial scrutiny. Part V applies these principles to congressional deference claims in several very different contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. The Article concludes with a call for further research in order to continue finding better resolutions to this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2013-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81102563","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}
American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.
{"title":"Beyond the Private Attorney General: Equality Directives in American Law","authors":"Olatunde C. A. Johnson","doi":"10.2139/SSRN.2258732","DOIUrl":"https://doi.org/10.2139/SSRN.2258732","url":null,"abstract":"American civil rights regulation is generally understood as relying on private enforcement in courts, rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. Rather, American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2013-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83441507","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}
Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other's messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these 'abundant networks' in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum. Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process that can be subject to rent-seeking). Professor Benjamin contends that, on balance, these considerations favor private control. An additional factor makes the decision clearer: Abundant networks might not develop as planned, and so the flexibility entailed by private ownershipas well as the shifting of the risk of failure from taxpayers to shareholdersmakes private ownership the better option. The unattractiveness of a commons for abundant networks casts serious doubt on the desirability of spectrum commons more generally. If private ownership is a more efficient means of creating abundant networks, then the same is almost certainly true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates' arguments undermines the appeal of a commons for most potential uses of spectrum.
{"title":"Spectrum Abundance and the Choice Between Private and Public Control","authors":"S. Benjamin","doi":"10.2139/SSRN.408700","DOIUrl":"https://doi.org/10.2139/SSRN.408700","url":null,"abstract":"Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other's messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these 'abundant networks' in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum. Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process that can be subject to rent-seeking). Professor Benjamin contends that, on balance, these considerations favor private control. An additional factor makes the decision clearer: Abundant networks might not develop as planned, and so the flexibility entailed by private ownershipas well as the shifting of the risk of failure from taxpayers to shareholdersmakes private ownership the better option. The unattractiveness of a commons for abundant networks casts serious doubt on the desirability of spectrum commons more generally. If private ownership is a more efficient means of creating abundant networks, then the same is almost certainly true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates' arguments undermines the appeal of a commons for most potential uses of spectrum.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2006-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80706972","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}
Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent, spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that it is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially-disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: it is through speech that defendants engage with the law, understand it, express anger, remorse, or their acceptance or rejection of the process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides what collective decisions are fair or unfair, and who should be punished. This Article describes the silencing phenomenon in practice and doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to democratic values that underlie the process. It proposes new ways of valuing defendant speech, and challenges conventional understandings of the attorney-client conversation, the listening role of the bench, and the public discourse about criminal justice.
{"title":"Speechless: The Silencing of Criminal Defendants","authors":"Alexandra Natapoff","doi":"10.2139/SSRN.709363","DOIUrl":"https://doi.org/10.2139/SSRN.709363","url":null,"abstract":"Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent, spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that it is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially-disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: it is through speech that defendants engage with the law, understand it, express anger, remorse, or their acceptance or rejection of the process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides what collective decisions are fair or unfair, and who should be punished. This Article describes the silencing phenomenon in practice and doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to democratic values that underlie the process. It proposes new ways of valuing defendant speech, and challenges conventional understandings of the attorney-client conversation, the listening role of the bench, and the public discourse about criminal justice.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2005-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87366328","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}
How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should be taken to ensure that deliberating groups obtain the information held by their members. Because of their ability to aggregate privately held information, information markets substantial advantages over group deliberation. These points bear on discussion of normative issues, in which deliberation might also fail to improve group thinking.
{"title":"Group Judgments: Deliberation, Statistical Means, and Information Markets","authors":"C. Sunstein","doi":"10.2139/SSRN.578301","DOIUrl":"https://doi.org/10.2139/SSRN.578301","url":null,"abstract":"How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should be taken to ensure that deliberating groups obtain the information held by their members. Because of their ability to aggregate privately held information, information markets substantial advantages over group deliberation. These points bear on discussion of normative issues, in which deliberation might also fail to improve group thinking.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2004-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91313050","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 ethics laws have traditionally afforded criminal defense attorneys greater latitude than other lawyers in their use of aggressive strategies on behalf of their clients. Federal judges nonetheless attempt to regulate zealous, or what is perceived as overzealous, advocacy by criminal defense lawyers. They do so by using the "acceptance of responsibility" provision of the United States Sentencing Guidelines to impose harsher sentences on criminal defendants whose attorneys engage in aggressive forms of representation such as making factually or legally dubious arguments, seeking tactical delays, or misleading the court. Judges justify these higher sentences by equating a zealous defense with remorselessness. This interpretation of the sentencing laws chills zealous advocacy in a fashion that has escaped review by most courts and scholars. This Article explores this method of regulation and its troublesome implications for the defendants and the attorneys who represent them.
{"title":"Remorse, Responsibility and Regulating Advocacy: Making Defendants Pay for the Sins of Their Lawyers","authors":"Margareth Etienne","doi":"10.2139/SSRN.416500","DOIUrl":"https://doi.org/10.2139/SSRN.416500","url":null,"abstract":"The ethics laws have traditionally afforded criminal defense attorneys greater latitude than other lawyers in their use of aggressive strategies on behalf of their clients. Federal judges nonetheless attempt to regulate zealous, or what is perceived as overzealous, advocacy by criminal defense lawyers. They do so by using the \"acceptance of responsibility\" provision of the United States Sentencing Guidelines to impose harsher sentences on criminal defendants whose attorneys engage in aggressive forms of representation such as making factually or legally dubious arguments, seeking tactical delays, or misleading the court. Judges justify these higher sentences by equating a zealous defense with remorselessness. This interpretation of the sentencing laws chills zealous advocacy in a fashion that has escaped review by most courts and scholars. This Article explores this method of regulation and its troublesome implications for the defendants and the attorneys who represent them.","PeriodicalId":47736,"journal":{"name":"New York University Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2003-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79610538","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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