{"title":"Last resorts and fundamental rights: the substantive due process implications of prohibitions on medical marijuana.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"118 6","pages":"1985-2006"},"PeriodicalIF":3.4,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25064425","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}
i. A Realist Introduction to the Discriminatory Funding Cases 174 2. Penalties Versus Refusals To Fund. 175 (a) The Error in the Abortion Analogy: Burden Rights and Neutrality Rights..... 176 (b) Separating Funded and Unfunded Activities 178 3. O ther Lim its to the H olding. ........ 183 (a) Religious Intensity of the Program Where Funds Are Used 184 (b) B ad M otive 187 (c) Speech.. ..... 191 4. The Hazards of Governmental Discretion 195 II. DAVEY AND THE REGULATION CASES 200
{"title":"THEOLOGY SCHOLARSHIPS, THE PLEDGE OF ALLEGIANCE, AND RELIGIOUS LIBERTY: AVOIDING THE EXTREMES BUT MISSING THE LIBERTY","authors":"D. Laycock","doi":"10.2307/4093279","DOIUrl":"https://doi.org/10.2307/4093279","url":null,"abstract":"i. A Realist Introduction to the Discriminatory Funding Cases 174 2. Penalties Versus Refusals To Fund. 175 (a) The Error in the Abortion Analogy: Burden Rights and Neutrality Rights..... 176 (b) Separating Funded and Unfunded Activities 178 3. O ther Lim its to the H olding. ........ 183 (a) Religious Intensity of the Program Where Funds Are Used 184 (b) B ad M otive 187 (c) Speech.. ..... 191 4. The Hazards of Governmental Discretion 195 II. DAVEY AND THE REGULATION CASES 200","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"118 1","pages":"156-246"},"PeriodicalIF":3.4,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093279","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730853","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":"Nine Justices Ten Years Statistical Retrospective","authors":"R. Jackson, Thiruvendran Vjgnarajah","doi":"10.7916/D800024N","DOIUrl":"https://doi.org/10.7916/D800024N","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"118 1","pages":"510-523"},"PeriodicalIF":3.4,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363586","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}
Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.
{"title":"Plea Bargaining Outside the Shadow of Trial","authors":"Stephanos Bibas","doi":"10.2139/SSRN.464880","DOIUrl":"https://doi.org/10.2139/SSRN.464880","url":null,"abstract":"Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"2463"},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.464880","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67740717","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}
Ruti G. Teitel, N. Dorsen, M. Rosenfeld, András Sajó, S. Baer
{"title":"Comparative Constitutional Law in a Global Age","authors":"Ruti G. Teitel, N. Dorsen, M. Rosenfeld, András Sajó, S. Baer","doi":"10.2307/4093406","DOIUrl":"https://doi.org/10.2307/4093406","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"2570"},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093406","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731809","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}
I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only
{"title":"The Politics of \"Inmate Litigation\"","authors":"Margo Schlanger","doi":"10.2307/4093420","DOIUrl":"https://doi.org/10.2307/4093420","url":null,"abstract":"I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"2799"},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093420","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732043","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":"Plea Bargaining and Criminal Law's Disappearing Shadow","authors":"William J. Stuntz","doi":"10.2307/4093405","DOIUrl":"https://doi.org/10.2307/4093405","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"2548"},"PeriodicalIF":3.4,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732264","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}
Modern computing technologies and the Internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Even as it promises new avenues for the creation of wealth, this controversial new market also raises significant concerns for individual privacy-consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Article develops a model of propertized personal information that responds to these serious concerns about privacy. It begins this task with a description and an analysis of several emerging technologies that illustrate both the promise and peril of the commodification of personal data. This Article also evaluates the arguments for and against a market in personal data, and concludes that while free alienability arguments are insufficient to justify unregulated trade in personal information, concerns about market failure and the public's interest in a protected privacy commons are equally insufficient to justify a ban on the trade. This Article develops the five critical elements of a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. These five elements are: limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations. Finally, this Article returns to examples of technologies already employed in data trade and discusses how this proposed model would apply to them.
{"title":"Property, Privacy, and Personal Data","authors":"P. Schwartz","doi":"10.2307/4093335","DOIUrl":"https://doi.org/10.2307/4093335","url":null,"abstract":"Modern computing technologies and the Internet have generated the capacity to gather, manipulate, and share massive quantities of data; this capacity, in turn, has spawned a booming trade in personal information. Even as it promises new avenues for the creation of wealth, this controversial new market also raises significant concerns for individual privacy-consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Article develops a model of propertized personal information that responds to these serious concerns about privacy. It begins this task with a description and an analysis of several emerging technologies that illustrate both the promise and peril of the commodification of personal data. This Article also evaluates the arguments for and against a market in personal data, and concludes that while free alienability arguments are insufficient to justify unregulated trade in personal information, concerns about market failure and the public's interest in a protected privacy commons are equally insufficient to justify a ban on the trade. This Article develops the five critical elements of a model for propertized personal information that would help fashion a market that would respect individual privacy and help maintain a democratic order. These five elements are: limitations on an individual's right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations. Finally, this Article returns to examples of technologies already employed in data trade and discusses how this proposed model would apply to them.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"23 1","pages":"2056"},"PeriodicalIF":3.4,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093335","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731120","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 Child's Best Interests: A Neglected Perspective on Interracial Intimacies","authors":"M. Brinig, R. Kennedy","doi":"10.2307/4093336","DOIUrl":"https://doi.org/10.2307/4093336","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"117 1","pages":"2129"},"PeriodicalIF":3.4,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093336","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731258","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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