Pub Date : 2021-01-01DOI: 10.36644/mlr.119.7.meaning
William Eskridge Jr.,Brian Slocum,Stefan Gries
The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning.Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can as
性的意义很重要。决定性别含义的解释方法很重要，这两个问题在最高法院最近具有里程碑意义的Bostock v. Clayton County一案中都存在争议，最高法院认为第七章保护女同性恋者、男同性恋者、变性人以及其他性和性别少数群体免受工作场所歧视。尽管一致同意第七章应该按照1964年最初的公共含义来解释，但博斯托克案的意见未能正确定义性别，也没有就如何随着时间的推移解释第七章这样的长期法规提供一个连贯的理论。我们认为，长期的法规本质上是动态的，因为它们不可避免地超出了最初的立法期望，我们为法院如何管理社会和语言的演变提供了一个新的理论和框架。该框架部分取决于法院对“意义”的正确定义，以便即使法定语言的含义保持不变(通过原旨主义)，法定范围也可以随着社会的变化而自然演变。法定和宪法解释中的原旨主义通常关注文本本身的语言及其是否随着时间的推移而演变(我们称之为语言动态)，但法院也应该认识到，解释对象的特征也可能随着时间的推移而演变(我们称之为社会动态)。随着社会的变化，社会规范也在变化;我们所说的规范性动力是不断发展的价值观对解释性事业的影响，无论如何概念化。语言和规范的动态性给原旨主义制造了困难，但社会的动态性不应该，正如原旨主义者在其他背景下(如第二修正案判例)所假设的那样。我们将探讨社会、语言和规范动力之间的关系，以及它们对原始公共意义的影响。将我们的框架付诸实践，我们通过语料库分析和语言学理论的应用，证明了1964年的性别并不局限于“男性和女性之间的生理差异”，正如博斯托克案中所有意见所假设的那样，性别和性取向在1964年基本上是非词。因此，“性”的含义比今天更广泛，像“性别”和“性取向”(以及其他像“性”这样的术语)这样的概念曾经可以被称为“性”(单独或复合)。反过来，今天的男女同性恋和变性人是1964年不存在的社会群体(或者以一种非常不同的形式存在)。由于将性别的含义限制在“生理差异”上，并且未能认识到社会动态可以改变法定范围，最高法院错过了明确肯定男女同性恋者和变性人的社会演变具有法律意义的机会。最后，法院错过了一个机会，承认法律在社会和语言动态中可以发挥的重要性:男女同性恋是一个新的社会群体的一个原因是，他们生活在一个同性亲密关系不是犯罪的世界，国家不会把同性恋视为精神病患者。
{"title":"The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning","authors":"William Eskridge Jr.,Brian Slocum,Stefan Gries","doi":"10.36644/mlr.119.7.meaning","DOIUrl":"https://doi.org/10.36644/mlr.119.7.meaning","url":null,"abstract":"The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning.Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can as","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507617","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.5.LIARS
Jesse Schupack
Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person’s reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.
{"title":"The Liar’s Mark: Character and Forfeiture in Federal Rule of Evidence 609(a)(2)","authors":"Jesse Schupack","doi":"10.36644/MLR.119.5.LIARS","DOIUrl":"https://doi.org/10.36644/MLR.119.5.LIARS","url":null,"abstract":"Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person’s reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681866","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.6.COMPENSATION
Karen M. Tani
A Review of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. by Nate Holdren.
《工伤贫困:进步时代的工伤事故、资本主义和法律》述评。内特·霍尔德伦著。
{"title":"Compensation, Commodification, and Disablement: How Law Has Dehumanized Laboring Bodies and Excluded Nonlaboring Humans","authors":"Karen M. Tani","doi":"10.36644/MLR.119.6.COMPENSATION","DOIUrl":"https://doi.org/10.36644/MLR.119.6.COMPENSATION","url":null,"abstract":"A Review of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. by Nate Holdren.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681910","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.6.MARKET
Meghan M. Boone
A Review of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored). by Maxine Eichner.
《自由市场家庭:市场如何粉碎美国梦(以及如何恢复美国梦)》书评。玛克辛·艾希纳著。
{"title":"The Market Cannot Be Your Mother","authors":"Meghan M. Boone","doi":"10.36644/MLR.119.6.MARKET","DOIUrl":"https://doi.org/10.36644/MLR.119.6.MARKET","url":null,"abstract":"A Review of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored). by Maxine Eichner.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682237","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.7.SUSPECT
Richard A. Primus, R. Hills,
Note to Michigan Readers: Weighing in at over 28,000 words, this draft is excessively long. Richard and I are working on cutting it down to a sensible length. In the meantime, if you (quite understandably) do not have time to read the entire paper, I am most interested in your comments on the Introduction and Part I(A) (pages 1-12) and Parts II-III (pages 32 to 50). I should add that Richard has not yet commented on Part III(B)(1) and might not agree with my assessment of NFIB v Sebelius: We will iron out whatever differences we might have on this visit, I hope!
{"title":"Suspect Spheres, Not Enumerated Powers: A Guide for Leaving the Lamppost","authors":"Richard A. Primus, R. Hills,","doi":"10.36644/MLR.119.7.SUSPECT","DOIUrl":"https://doi.org/10.36644/MLR.119.7.SUSPECT","url":null,"abstract":"Note to Michigan Readers: Weighing in at over 28,000 words, this draft is excessively long. Richard and I are working on cutting it down to a sensible length. In the meantime, if you (quite understandably) do not have time to read the entire paper, I am most interested in your comments on the Introduction and Part I(A) (pages 1-12) and Parts II-III (pages 32 to 50). I should add that Richard has not yet commented on Part III(B)(1) and might not agree with my assessment of NFIB v Sebelius: We will iron out whatever differences we might have on this visit, I hope!","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683016","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}
Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504). Courts too often overlook the affirmative obligations contained in these two disability rights laws and instead assume that students with disabilities’ only legal recourse is the Individuals with Disabilities Education Act (IDEA). Regrettably the IDEA is not capable of remedying all the harms students endure. In fact, the IDEA, by its terms, extends to only a subset of students with disabilities. Even so, courts force all students to exhaust the IDEA’s administrative procedures before invoking remedies under the other two disability rights laws. By narrowly construing antidiscrimination principles and ignoring the affirmative obligations contained in disability rights laws, courts unduly restrict students’ protections under these laws. This Article solves that problem by explaining and clarifying the nuance that drives confusion in this area: the difference between the IDEA’s guarantee of a free appropriate public education and the ADA and section 504’s guarantee of equal access to public education. With that distinction clear, this Article disaggregates the types of claims that are most often erroneously obstructed by the IDEA’s exhaustion clause and then creates a framework that would allow courts to analyze and correctly apply the exhaustion clause. In doing so, it hopes to remove these laws from the IDEA’s shadow and renew their promise of equal access to educational opportunity.
{"title":"The Lost Promise of Disability Rights","authors":"Claire Raj","doi":"10.36644/MLR.119.5.LOST","DOIUrl":"https://doi.org/10.36644/MLR.119.5.LOST","url":null,"abstract":"Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504). Courts too often overlook the affirmative obligations contained in these two disability rights laws and instead assume that students with disabilities’ only legal recourse is the Individuals with Disabilities Education Act (IDEA). Regrettably the IDEA is not capable of remedying all the harms students endure. In fact, the IDEA, by its terms, extends to only a subset of students with disabilities. Even so, courts force all students to exhaust the IDEA’s administrative procedures before invoking remedies under the other two disability rights laws. By narrowly construing antidiscrimination principles and ignoring the affirmative obligations contained in disability rights laws, courts unduly restrict students’ protections under these laws. This Article solves that problem by explaining and clarifying the nuance that drives confusion in this area: the difference between the IDEA’s guarantee of a free appropriate public education and the ADA and section 504’s guarantee of equal access to public education. With that distinction clear, this Article disaggregates the types of claims that are most often erroneously obstructed by the IDEA’s exhaustion clause and then creates a framework that would allow courts to analyze and correctly apply the exhaustion clause. In doing so, it hopes to remove these laws from the IDEA’s shadow and renew their promise of equal access to educational opportunity.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681430","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.6.PERFECTLY
C. Ponsa-Kraus
A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.
《几乎是公民》书评:波多黎各、美国宪法和帝国。山姆·埃尔曼著。
{"title":"A Perfectly Empty Gift","authors":"C. Ponsa-Kraus","doi":"10.36644/MLR.119.6.PERFECTLY","DOIUrl":"https://doi.org/10.36644/MLR.119.6.PERFECTLY","url":null,"abstract":"A Review of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. by Sam Erman.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682250","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}
Pub Date : 2021-01-01DOI: 10.36644/MLR.119.7.REVIVING
Julia G Moroney
Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking process for web accessibility in 2010, only to terminate it seven years later without issuing a rule—leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA’s protections apply to the internet, the business and disability communities should come together through negotiated rulemaking to build consensus on web accessibility.
{"title":"Reviving Negotiated Rulemaking for an Accessible Internet","authors":"Julia G Moroney","doi":"10.36644/MLR.119.7.REVIVING","DOIUrl":"https://doi.org/10.36644/MLR.119.7.REVIVING","url":null,"abstract":"Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has become central to daily life, websites have overwhelmingly remained inaccessible to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicating matters, the Department of Justice (DOJ) initiated the rulemaking process for web accessibility in 2010, only to terminate it seven years later without issuing a rule—leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA’s protections apply to the internet, the business and disability communities should come together through negotiated rulemaking to build consensus on web accessibility.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682723","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}
Pub Date : 2021-01-01DOI: 10.36644/mlr.120.3.missing
Deborah Won
Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck. This Note offers three contributions. First, it explains the use of algorithms in law enforcement and the intertwined role of trade secrecy protections. Second, it shows how trade secrecy clashes with the Due Process Clause—the Constitution’s mechanism for correcting the power asymmetry between the state and the defendant—and argues that due process should not waver simply because a source of evidence is digital, not human. Third, it proposes a solution that better balances a defendant’s due process rights with intellectual property protections.
{"title":"The Missing Algorithm: Safeguarding Brady Against the Rise of Trade Secrecy in Policing","authors":"Deborah Won","doi":"10.36644/mlr.120.3.missing","DOIUrl":"https://doi.org/10.36644/mlr.120.3.missing","url":null,"abstract":"Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck. This Note offers three contributions. First, it explains the use of algorithms in law enforcement and the intertwined role of trade secrecy protections. Second, it shows how trade secrecy clashes with the Due Process Clause—the Constitution’s mechanism for correcting the power asymmetry between the state and the defendant—and argues that due process should not waver simply because a source of evidence is digital, not human. Third, it proposes a solution that better balances a defendant’s due process rights with intellectual property protections.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683056","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 meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning. Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law ca
性的意义很重要。决定性别含义的解释方法很重要，这两个问题在最高法院最近具有里程碑意义的Bostock v. Clayton County一案中都存在争议，最高法院认为第七章保护女同性恋者、男同性恋者、变性人以及其他性和性别少数群体免受工作场所歧视。尽管一致同意第七章应该按照1964年最初的公共含义来解释，但博斯托克案的意见未能正确定义性别，也没有就如何随着时间的推移解释第七章这样的长期法规提供一个连贯的理论。我们认为，长期的法规本质上是动态的，因为它们不可避免地超出了最初的立法期望，我们为法院如何管理社会和语言的演变提供了一个新的理论和框架。该框架部分取决于法院对“意义”的正确定义，以便即使法定语言的含义保持不变(通过原旨主义)，法定范围也可以随着社会的变化而自然演变。法定和宪法解释中的原旨主义通常关注文本本身的语言及其是否随着时间的推移而演变(我们称之为语言动态)，但法院也应该认识到，解释对象的特征也可能随着时间的推移而演变(我们称之为社会动态)。随着社会的变化，社会规范也在变化;我们所说的规范性动力是不断发展的价值观对解释性事业的影响，无论如何概念化。语言和规范的动态性给原旨主义制造了困难，但社会的动态性不应该，正如原旨主义者在其他背景下(如第二修正案判例)所假设的那样。我们将探讨社会、语言和规范动力之间的关系，以及它们对原始公共意义的影响。将我们的框架付诸实践，我们通过语料库分析和语言学理论的应用，证明了1964年的性别并不局限于“男性和女性之间的生理差异”，正如博斯托克案中所有意见所假设的那样，性别和性取向在1964年基本上是非词。因此，“性”的含义比今天更广泛，像“性别”和“性取向”(以及其他像“性”这样的术语)这样的概念曾经可以被称为“性”(单独或复合)。反过来，今天的男女同性恋和变性人是1964年不存在的社会群体(或者以一种非常不同的形式存在)。由于将性别的含义限制在“生理差异”上，并且未能认识到社会动态可以改变法定范围，最高法院错过了明确肯定男女同性恋者和变性人的社会演变具有法律意义的机会。最后，法院错过了一个机会，承认法律在社会和语言动态中可以发挥的重要性:男女同性恋是一个新的社会群体的一个原因是，他们生活在一个同性亲密关系不是犯罪的世界，国家不会把同性恋视为精神病患者。
{"title":"The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning","authors":"William N. Eskridge, Brian G. Slocum, S. Gries","doi":"10.2139/ssrn.3674194","DOIUrl":"https://doi.org/10.2139/ssrn.3674194","url":null,"abstract":"The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).\u0000\u0000Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning.\u0000\u0000Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law ca","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2020-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47870509","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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