{"title":"Trust and betrayal in the medical marketplace.","authors":"M Gregg Bloche","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 3","pages":"919-54"},"PeriodicalIF":4.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22238654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay addresses Ruth O'Brien's "Crippled Justice: The History of Modern Disability Policy in the Workplace" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions. Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.
{"title":"Disability, Employment Policy, and the Supreme Court","authors":"M. Stein","doi":"10.2139/SSRN.337722","DOIUrl":"https://doi.org/10.2139/SSRN.337722","url":null,"abstract":"This essay addresses Ruth O'Brien's \"Crippled Justice: The History of Modern Disability Policy in the Workplace\" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions. Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"607-634"},"PeriodicalIF":4.9,"publicationDate":"2002-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68589410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Prepared for a Stanford Law Review symposium, this essay comments on an article by Harvard Professors Bebchuk, Coates, and Subramanian; namely, Lucian Ayre Bebchuk et al., The Powerful Antitakeover Force of Staggered Boards: Theory, Evidence, and Policy, 54 STAN. L. REV. (forthcoming). Bebchuk, Coates, and Subramanian's data demonstrate that (1) the incidence of staggered boards has increased substantially in the last two decades and (2) most, if not all, of this increase can be linked to the staggered board's utility as a takeover defense. In response, they offer a policy prescription "stated simply" as: "Courts should not allow managers to continue blocking a takeover bid after they lose one election conducted over an acquisition offer". It is this recommendation and the normative foundations on which it is premised, rather than the minutiae of their empirical analysis and theoretical models, which are the focus of this comment. Like much of modern academic commentary on corporate law, Bebchuk, Coates, and Subramanian's policy recommendation rests on the principle of shareholder primacy. In contrast, this comment argues that corporate law is better understood as a system of director primacy in which the board of directors is not a mere agent of the shareholders, but rather is a sort of Platonic guardian serving as the nexus of the various contracts making up the corporation. The comment concludes by proposing a director primacy-based standard for reviewing the tandem use of classified boards and poison pills as an alternative to Bebchuk, Coates, and Subramanian's proposed prophylactic bar on their use.
{"title":"Director Primacy in Corporate Takeovers: Preliminary Reflections","authors":"Stephen M. Bainbridge","doi":"10.2139/SSRN.330582","DOIUrl":"https://doi.org/10.2139/SSRN.330582","url":null,"abstract":"Prepared for a Stanford Law Review symposium, this essay comments on an article by Harvard Professors Bebchuk, Coates, and Subramanian; namely, Lucian Ayre Bebchuk et al., The Powerful Antitakeover Force of Staggered Boards: Theory, Evidence, and Policy, 54 STAN. L. REV. (forthcoming). Bebchuk, Coates, and Subramanian's data demonstrate that (1) the incidence of staggered boards has increased substantially in the last two decades and (2) most, if not all, of this increase can be linked to the staggered board's utility as a takeover defense. In response, they offer a policy prescription \"stated simply\" as: \"Courts should not allow managers to continue blocking a takeover bid after they lose one election conducted over an acquisition offer\". It is this recommendation and the normative foundations on which it is premised, rather than the minutiae of their empirical analysis and theoretical models, which are the focus of this comment. Like much of modern academic commentary on corporate law, Bebchuk, Coates, and Subramanian's policy recommendation rests on the principle of shareholder primacy. In contrast, this comment argues that corporate law is better understood as a system of director primacy in which the board of directors is not a mere agent of the shareholders, but rather is a sort of Platonic guardian serving as the nexus of the various contracts making up the corporation. The comment concludes by proposing a director primacy-based standard for reviewing the tandem use of classified boards and poison pills as an alternative to Bebchuk, Coates, and Subramanian's proposed prophylactic bar on their use.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"791-804"},"PeriodicalIF":4.9,"publicationDate":"2002-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68583728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
IN TRO D U CTIO N 57 1 I. REALISM AND FORMALISM IN PAST AND PRESENT COMMERCE CASES 574 A. The Historical Rise of the Realism/Formalism Dichotomy in Commerce Clause Jurisprudence 574 B. The Realist Approach Motivating Lopez and Morrison 576 C. Formal Commerce Rules in Morrison and Lopez 578 II. How PRECEDENT ON CHANNELS AND INSTRUMENTALITIES UNDERCUTS THE PRINCIPLES MOTIVATING MORRISON AND LOPEZ 584 A. The Broad Reach of the Power to Regulate Instrumentalities 584 B. The Breadth of the Power to Regulate Persons or Things in Interstate Commerce 590 C. An Invitation to Artful Legislating 594 III. WHAT'S THE POINT OF EVADABLE CONSTITUTIONAL LAW? 596 A. The Problem with a Realist Response 597 B. Why a Formalist Response Might Work Better 601 C O N CLU SIO N 604
1 .过去和现在商业案件中的现实主义和形式主义。商业条款法学中现实主义/形式主义二分法的历史兴起[74]B.现实主义方法激励洛佩兹和莫里森[76]C.莫里森和洛佩兹的正式商业规则[78]渠道和工具上的先例如何削弱了激励莫里森和洛佩兹的原则。B.在州际贸易中管制人或物的权力的广度C.对巧妙立法的邀请逃避宪法的意义是什么?596 A。现实主义反应的问题B.为什么形式主义的反应可能会更好C . C . C . C . C . C . C . C . C . C . C . C . C . C . C . C
{"title":"Commerce Clause Questions After Morrison: Some Observations on the New Formalism and the New Realism","authors":"Joshua A. Klein","doi":"10.2307/1229598","DOIUrl":"https://doi.org/10.2307/1229598","url":null,"abstract":"IN TRO D U CTIO N 57 1 I. REALISM AND FORMALISM IN PAST AND PRESENT COMMERCE CASES 574 A. The Historical Rise of the Realism/Formalism Dichotomy in Commerce Clause Jurisprudence 574 B. The Realist Approach Motivating Lopez and Morrison 576 C. Formal Commerce Rules in Morrison and Lopez 578 II. How PRECEDENT ON CHANNELS AND INSTRUMENTALITIES UNDERCUTS THE PRINCIPLES MOTIVATING MORRISON AND LOPEZ 584 A. The Broad Reach of the Power to Regulate Instrumentalities 584 B. The Breadth of the Power to Regulate Persons or Things in Interstate Commerce 590 C. An Invitation to Artful Legislating 594 III. WHAT'S THE POINT OF EVADABLE CONSTITUTIONAL LAW? 596 A. The Problem with a Realist Response 597 B. Why a Formalist Response Might Work Better 601 C O N CLU SIO N 604","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"571-606"},"PeriodicalIF":4.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1229598","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68296372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reinventing the double helix: a novel and nonobvious reconceptualization of the biotechnology patent.","authors":"Linda J Demaine, Aaron Xavier Fellmeth","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 2","pages":"303-462"},"PeriodicalIF":4.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22167577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores the impact of Executive Order 13,233 on public access to presidential materials and the context in which President Bush issued the Order on November 1, 2001. It begins by defining executive privilege, tracing its creation, and examining how the different branches of government have interpreted it. The paper continues by describing how the Order changes and interacts with the previous law surrounding executive privilege, examines the process for gaining access to presidential records, and explains how the Order violates constitutional separation of powers principles. Finally, the paper considers the possibility of both a legislative and judicial solution to the problem and analyzes why the non-Executive branches are better suited to resolve the dispute.
{"title":"Out of Sight, But Not Out of Mind: How Executive Order 13,233 Expands Executive Privilege While Simultaneously Preventing Access to Presidential Records","authors":"M. Karin","doi":"10.2307/1229597","DOIUrl":"https://doi.org/10.2307/1229597","url":null,"abstract":"This paper explores the impact of Executive Order 13,233 on public access to presidential materials and the context in which President Bush issued the Order on November 1, 2001. It begins by defining executive privilege, tracing its creation, and examining how the different branches of government have interpreted it. The paper continues by describing how the Order changes and interacts with the previous law surrounding executive privilege, examines the process for gaining access to presidential records, and explains how the Order violates constitutional separation of powers principles. Finally, the paper considers the possibility of both a legislative and judicial solution to the problem and analyzes why the non-Executive branches are better suited to resolve the dispute.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"529-570"},"PeriodicalIF":4.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1229597","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68296209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law, medicine, and trust.","authors":"Mark A Hall","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 2","pages":"463-527"},"PeriodicalIF":4.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22167576","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"What Is A Search: Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy" analyzes and critiques Fourth Amendment doctrine addressing the question of which government activities count as "searches" for Fourth Amendment purposes. The Article contends that the original articulation of the "reasonable expectation of privacy" standard in Katz v. United States made sense, but that the Court has, in subsequently applying and developing it, effectively robbed the doctrine of its protective power. It has done so through the use of two "moves" that are identified and developed in the Article: the equation of risk with invitation, and the equation of limited with absolute exposure. The Article demonstrates the pervasiveness of these moves as well as the perverse consequences of their application for the future of privacy.
{"title":"What is a Search: Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy","authors":"S. F. Colb","doi":"10.2307/1229591","DOIUrl":"https://doi.org/10.2307/1229591","url":null,"abstract":"\"What Is A Search: Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy\" analyzes and critiques Fourth Amendment doctrine addressing the question of which government activities count as \"searches\" for Fourth Amendment purposes. The Article contends that the original articulation of the \"reasonable expectation of privacy\" standard in Katz v. United States made sense, but that the Court has, in subsequently applying and developing it, effectively robbed the doctrine of its protective power. It has done so through the use of two \"moves\" that are identified and developed in the Article: the equation of risk with invitation, and the equation of limited with absolute exposure. The Article demonstrates the pervasiveness of these moves as well as the perverse consequences of their application for the future of privacy.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"119-189"},"PeriodicalIF":4.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1229591","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68296404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Both scholarly literature and public debate about plea bargaining embody a false dichotomy. Commentators err in assuming that criminal trials are the only alternative to plea bargains, and that fewer plea bargains lead inexorably to more trials. This paper offers a different choice, and points to prosecutorial screening as the principal alternative to plea bargains. Prosecutorial screening is a viable and significant alternative to living with the dishonesty of plea bargaining or mandating trials. The empirical heart of our paper studies charging data from New Orleans, where over the last three decades the New Orleans District Attorney emphasized early screening of cases and actively discouraged any changes of criminal charges as a result of negotiations after the charges are filed. This analysis confirms that a big city prosecutor can invest serious resources in early evaluation of cases and maintain this practice over the long run. All prosecutors screen cases. By prosecutorial screening we mean a structured charge selection process with four interrelated features: early assessment, reasoned selection, barriers to bargains, and enforcement. First, the prosecutor's office must make an early and careful assessment of each case, before the initial charge is filed. Second, the prosecutor's office should file charges only in provable cases that the office would generally want to result in a criminal conviction and sanction. Third, the office must severely restrict plea bargaining, and most especially charge bargains. Fourth, the office must create sufficient oversight and internal enforcement mechanisms to ensure reasonable uniformity in charging and relatively few changes to charges after they have been filed. A prosecutor who makes a realistic and early evaluation of the case will decrease in the number of negotiated guilty pleas, especially (and critically) charge bargains. Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of open pleas made without prior bargaining between the defendant and the prosecutor. A screening system that produces mostly open pleas avoids the dishonesty of plea bargaining when the offense of conviction does not match either the charges the state filed or the reality of the offender's behavior. Principled screening produces convictions that align as closely as possible with both the actual criminal behavior and the charges the prosecutor initially files. The prosecutor sends a single, consistent signal about the wisdom and worth of the case. Our study calls on every prosecutor to rethink how the office screens cases and how it explains its practices to the public. The screening/bargaining tradeoff should also become part of the political dialogue about the justice system, especially at election time. The public question should not be the conviction rate, but rather the ratio of as charged convictions to conviction
{"title":"The Screening/Bargaining Tradeoff","authors":"R. Wright, M. Miller","doi":"10.2139/SSRN.325580","DOIUrl":"https://doi.org/10.2139/SSRN.325580","url":null,"abstract":"Both scholarly literature and public debate about plea bargaining embody a false dichotomy. Commentators err in assuming that criminal trials are the only alternative to plea bargains, and that fewer plea bargains lead inexorably to more trials. This paper offers a different choice, and points to prosecutorial screening as the principal alternative to plea bargains. Prosecutorial screening is a viable and significant alternative to living with the dishonesty of plea bargaining or mandating trials. The empirical heart of our paper studies charging data from New Orleans, where over the last three decades the New Orleans District Attorney emphasized early screening of cases and actively discouraged any changes of criminal charges as a result of negotiations after the charges are filed. This analysis confirms that a big city prosecutor can invest serious resources in early evaluation of cases and maintain this practice over the long run. All prosecutors screen cases. By prosecutorial screening we mean a structured charge selection process with four interrelated features: early assessment, reasoned selection, barriers to bargains, and enforcement. First, the prosecutor's office must make an early and careful assessment of each case, before the initial charge is filed. Second, the prosecutor's office should file charges only in provable cases that the office would generally want to result in a criminal conviction and sanction. Third, the office must severely restrict plea bargaining, and most especially charge bargains. Fourth, the office must create sufficient oversight and internal enforcement mechanisms to ensure reasonable uniformity in charging and relatively few changes to charges after they have been filed. A prosecutor who makes a realistic and early evaluation of the case will decrease in the number of negotiated guilty pleas, especially (and critically) charge bargains. Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of open pleas made without prior bargaining between the defendant and the prosecutor. A screening system that produces mostly open pleas avoids the dishonesty of plea bargaining when the offense of conviction does not match either the charges the state filed or the reality of the offender's behavior. Principled screening produces convictions that align as closely as possible with both the actual criminal behavior and the charges the prosecutor initially files. The prosecutor sends a single, consistent signal about the wisdom and worth of the case. Our study calls on every prosecutor to rethink how the office screens cases and how it explains its practices to the public. The screening/bargaining tradeoff should also become part of the political dialogue about the justice system, especially at election time. The public question should not be the conviction rate, but rather the ratio of as charged convictions to conviction","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"29-119"},"PeriodicalIF":4.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.325580","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68578424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
in their writings, and thus the Communist Party's publications share a unified message. 45. Writers on the media's methods of story selection often point out that the press considers the importance and interest of a news story to its audience to weigh more heavily in favor of its publication than the moral or political messages it conveys. See HERBERT J. GANS, DECIDING WHAT'S NEWS 147-55 (1979) (arguing that the likely importance of a news story to the reading public is the first of two key "substantive considerations" that determines how journalists select material for publication); id. at 155-57 (describing the second such consideration as whether a story is "interesting" in the sense that it is about an unusual or exceptional instance of human behavior-the author gives stories depicting "'hard-core criminals' who go straight" and "amateur and professional adventurers who climb a previously unclimbed mountain or set an endurance record" as examples of this phenomenon). 46. To be sure, my framework does not require that a group disseminate a message for public consumption in order to be expressive in nature-a group of people who congregated to debate current political issues, for instance, would also constitute an expressive group even though its members only spoke to one another (in their capacities as members of the group) and not to outsiders. For an extended argument detailing why this must be the case given existing freedom of association jurisprudence, see infra notes 86-93 and accompanying text. 47. See, e.g., Jaycees, 468 U.S. at 632 (O'Connor, J., concurring) (arguing that "commercial associations" are not entitled to the protection of the doctrine of freedom of association); Carpenter, supra note 42, at 1518 (arguing that "[e]ven though not yet explicitly recognized by the Court, the commercial-expressive distinction actually helps to explain the results in many of the Court's decisions pitting a claim to freedom of association against some state regulation"); Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1852 (1991) (arguing that "the state interest in providing equal access to commercial opportunities is much greater than that in providing equal access to other types of advantages or intangible benefits," and thus that businesses should be denied associational protection). 202 [Vol. 55:191 This content downloaded from 207.46.13.129 on Sun, 26 Jun 2016 06:49:11 UTC All use subject to http://about.jstor.org/terms Oct. 2002] EXPRESSIVE ASSOCIATION AND THE PRESS purchase and sale of goods and services, and the recruitment and training of employees.48 Like the unified-message criterion, the low-commercial-activity criterion is inconsistent with the thesis of this Note. This point can be demonstrated by looking again at the example of a commercial newspaper. Although the threshold commercial-activity requirement is amorphous-even by its advocates' a
在他们的作品中，因此共产党的出版物共享一个统一的信息。45. 研究媒体故事选择方法的作家经常指出，媒体认为新闻故事对受众的重要性和兴趣比它所传达的道德或政治信息更有利于其出版。参见HERBERT J. GANS，决定什么是新闻147-55(1979)(认为新闻故事对读者的可能重要性是决定记者如何选择出版材料的两个关键“实质性考虑”中的第一个);id。在第155-57页(描述了第二个考虑因素，即一个故事是否“有趣”，因为它是关于人类行为的一个不寻常或例外的例子)，作者给出了一些故事，描述了“正直的‘顽固罪犯’”和“业余和专业冒险家攀登了以前无人攀登的山峰或创造了耐力记录”作为这种现象的例子)。46. 可以肯定的是，我的框架并不要求一个群体传播信息以供公众消费，以便在本质上具有表达性——例如，一群人聚集在一起讨论当前的政治问题，也可以构成一个表达性群体，即使其成员只与彼此交谈(以他们作为群体成员的身份)，而不与外人交谈。关于为什么在现有结社自由法理学的情况下必须是这种情况的进一步论证，见下文86-93和随附文本。47. 参见，例如，Jaycees, 468 U.S. at 632 (O’connor, J.，同意)(认为“商业协会”无权受到结社自由原则的保护);Carpenter，上页附注42,at 1518(辩称“[e]尽管尚未得到本院明确承认，但商业与表达的区别实际上有助于解释本院许多将结社自由主张与某些州法规相对抗的判决中的结果”);注:《国家权力与私人俱乐部的歧视:第一修正案对无表达性社团的保护》，《哈佛大学学报》104期。L. REV. 1835, 1852(1991)(认为“提供平等获得商业机会的国家利益远远大于提供平等获得其他类型的优势或无形利益的国家利益”，因此企业不应受到结社保护)。[卷55:191本内容下载自207.46.13.129在星期日2016年6月26日06:49:11 UTC所有使用以http://about.jstor.org/terms october 2002为准]表达协会和新闻界购买、销售商品和服务，招聘和培训员工与统一消息标准一样，低商业活动标准与本说明的论点不一致。这一点可以通过再看一次商业报纸的例子来证明。尽管商业活动的门槛要求是不明确的——即使它的拥护者也承认——大多数读者可能会承认，一份商业的、以营利为目的的报纸从事大量的商业活动;商业报纸必须出售其出版物和广告版面，购买原材料，并雇用人员。因此，在商业活动标准下，商业报纸不属于言论团体，因此不享有言论结社自由的权利。但是，如上所述，在我的构想下，这样的出版物确实是一个富有表现力的群体。如果为了使从事合作行动的一群人具有表达能力，必须真正满足统一信息和低商业活动标准，那么就会给新闻实体是表达群体从而有权受到结社自由原则保护的论点带来困难。但是，我不认为法律要求必须满足这些标准。因此，尽管评论者赞成附加标准，本说明的论点仍然有效。我将针对下面的每个标准提出两种论证。首先，我认为每个标准都不能准确地反映法律。其次，我将在替代方案中论证，即使附加标准确实正确地代表了现有的结社自由法理学，我的更最小的方法在逻辑和实践的基础上是优越的。
{"title":"The Right to Freedom of Expressive Association and the Press","authors":"C. Edgar","doi":"10.2307/1229592","DOIUrl":"https://doi.org/10.2307/1229592","url":null,"abstract":"in their writings, and thus the Communist Party's publications share a unified message. 45. Writers on the media's methods of story selection often point out that the press considers the importance and interest of a news story to its audience to weigh more heavily in favor of its publication than the moral or political messages it conveys. See HERBERT J. GANS, DECIDING WHAT'S NEWS 147-55 (1979) (arguing that the likely importance of a news story to the reading public is the first of two key \"substantive considerations\" that determines how journalists select material for publication); id. at 155-57 (describing the second such consideration as whether a story is \"interesting\" in the sense that it is about an unusual or exceptional instance of human behavior-the author gives stories depicting \"'hard-core criminals' who go straight\" and \"amateur and professional adventurers who climb a previously unclimbed mountain or set an endurance record\" as examples of this phenomenon). 46. To be sure, my framework does not require that a group disseminate a message for public consumption in order to be expressive in nature-a group of people who congregated to debate current political issues, for instance, would also constitute an expressive group even though its members only spoke to one another (in their capacities as members of the group) and not to outsiders. For an extended argument detailing why this must be the case given existing freedom of association jurisprudence, see infra notes 86-93 and accompanying text. 47. See, e.g., Jaycees, 468 U.S. at 632 (O'Connor, J., concurring) (arguing that \"commercial associations\" are not entitled to the protection of the doctrine of freedom of association); Carpenter, supra note 42, at 1518 (arguing that \"[e]ven though not yet explicitly recognized by the Court, the commercial-expressive distinction actually helps to explain the results in many of the Court's decisions pitting a claim to freedom of association against some state regulation\"); Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1852 (1991) (arguing that \"the state interest in providing equal access to commercial opportunities is much greater than that in providing equal access to other types of advantages or intangible benefits,\" and thus that businesses should be denied associational protection). 202 [Vol. 55:191 This content downloaded from 207.46.13.129 on Sun, 26 Jun 2016 06:49:11 UTC All use subject to http://about.jstor.org/terms Oct. 2002] EXPRESSIVE ASSOCIATION AND THE PRESS purchase and sale of goods and services, and the recruitment and training of employees.48 Like the unified-message criterion, the low-commercial-activity criterion is inconsistent with the thesis of this Note. This point can be demonstrated by looking again at the example of a commercial newspaper. Although the threshold commercial-activity requirement is amorphous-even by its advocates' a","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"55 1","pages":"191-247"},"PeriodicalIF":4.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1229592","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68296463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"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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