{"title":"The end of privacy.","authors":"Jed Rubenfeld","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"61 1","pages":"101-62"},"PeriodicalIF":4.9,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27857716","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 article replies to Bruce Green's critical response to my essay The Market for Bad Legal Advice. The first part defends the account of the facts and law in the aggregate litigation case study discussed in the essay. The second part elaborates on my views on the role of the academic expert witness in litigation.
{"title":"Transparency is the Solution, Not the Problem: A Reply to Bruce Green","authors":"William H. Simon","doi":"10.2139/SSRN.1177786","DOIUrl":"https://doi.org/10.2139/SSRN.1177786","url":null,"abstract":"This article replies to Bruce Green's critical response to my essay The Market for Bad Legal Advice. The first part defends the account of the facts and law in the aggregate litigation case study discussed in the essay. The second part elaborates on my views on the role of the academic expert witness in litigation.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"60 1","pages":"1673"},"PeriodicalIF":4.9,"publicationDate":"2008-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1177786","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68150656","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}
One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and in turn the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our article develops and offers a finely-tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorials in 25 top papers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial viewpoints over the course of five major mergers and acquisitions. Our data reveals complex patterns that defy extant accounts, showing stability, convergence and divergence of viewpoints in the face of - and depending on the circumstances of - consolidation. These findings fundamentally challenge extant empirical regulatory assumptions - pointing to the crucial role of editorial policies - and deeply inform the viability of the ownership regulations and the interpretation of the 1996 Telecommunications Act.
{"title":"Viewpoint Diversity and Media Consolidation: An Empirical Study","authors":"Daniel E. Ho, K. Quinn","doi":"10.2139/SSRN.1121229","DOIUrl":"https://doi.org/10.2139/SSRN.1121229","url":null,"abstract":"One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and in turn the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our article develops and offers a finely-tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorials in 25 top papers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial viewpoints over the course of five major mergers and acquisitions. Our data reveals complex patterns that defy extant accounts, showing stability, convergence and divergence of viewpoints in the face of - and depending on the circumstances of - consolidation. These findings fundamentally challenge extant empirical regulatory assumptions - pointing to the crucial role of editorial policies - and deeply inform the viability of the ownership regulations and the interpretation of the 1996 Telecommunications Act.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"61 1","pages":"781"},"PeriodicalIF":4.9,"publicationDate":"2008-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144073","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}
Suspension of the voting rights of sovereign wealth funds (SWFs) addresses one facet of the competition between market and new-mercantilist capitalism. It solves the immediate problem at which it is addressed : the use of a portfolio company's corporate governance structure to influence its decisions in a fashion that works to the advantage of the SWF's government owner at the expense of the portfolio company's other shareholders and potentially the host country itself. This solution cannot solve the larger problems that arise from the interaction of different concepts of capitalism, but it can address the most serous risk SWFs pose : that the perception of strategic behavior by foreign state-owned entities will result in a protectionist backlash. ; JEL Classification : F30, G29, G34
{"title":"Sovereign Wealth Funds and Corporate Governance: A Minimalist Response to the New Mercantilism","authors":"R. Gilson, C. Milhaupt","doi":"10.3406/ecofi.2009.5520","DOIUrl":"https://doi.org/10.3406/ecofi.2009.5520","url":null,"abstract":"Suspension of the voting rights of sovereign wealth funds (SWFs) addresses one facet of the competition between market and new-mercantilist capitalism. It solves the immediate problem at which it is addressed : the use of a portfolio company's corporate governance structure to influence its decisions in a fashion that works to the advantage of the SWF's government owner at the expense of the portfolio company's other shareholders and potentially the host country itself. This solution cannot solve the larger problems that arise from the interaction of different concepts of capitalism, but it can address the most serous risk SWFs pose : that the perception of strategic behavior by foreign state-owned entities will result in a protectionist backlash. ; JEL Classification : F30, G29, G34","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"60 1","pages":"1345"},"PeriodicalIF":4.9,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70187610","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}
The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. Several measures in U.K. law could be considered as test cases of counter-terrorism control measures. Probably the most appropriate are the eponymous control orders under the Prevention of Terrorism Act 2005. The system imposed by the Act encompasses both operative dynamics: the imperative to respond to anticipatory risk and the need to extend action to the "neighbor" terrorist. Foremost in the inquiry will be the following questions: what circumstances gave rise to the policy of control orders; what are the main elements of the policy and how is it implemented; is it possible to maintain constitutionalism when dealing with a non-criminal justice mechanism of this kind; and, what lessons can be derived for future policy?
{"title":"Keeping Control of Terrorists Without Losing Control of Constitutionalism","authors":"C. Walker","doi":"10.4324/9781315260150-8","DOIUrl":"https://doi.org/10.4324/9781315260150-8","url":null,"abstract":"The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. Several measures in U.K. law could be considered as test cases of counter-terrorism control measures. Probably the most appropriate are the eponymous control orders under the Prevention of Terrorism Act 2005. The system imposed by the Act encompasses both operative dynamics: the imperative to respond to anticipatory risk and the need to extend action to the \"neighbor\" terrorist. Foremost in the inquiry will be the following questions: what circumstances gave rise to the policy of control orders; what are the main elements of the policy and how is it implemented; is it possible to maintain constitutionalism when dealing with a non-criminal justice mechanism of this kind; and, what lessons can be derived for future policy?","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"10 1","pages":"1395"},"PeriodicalIF":4.9,"publicationDate":"2008-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70643523","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}
Through Crawford v. Washington and its progeny, the United States Supreme Court has limited the reach of the Confrontation Clause to testimonial hearsay. Testimonial hearsay, the court reasoned, was the primary object of the clause. Other commentators have highlighted the history that persuasively shows that banning testimonial hearsay was the chief motivation behind the Confrontation Clause. But what do the purposes and history of the clause have to say about the admission of non-testimonial hearsay statements? Part I examines common law near the Founding, and argues that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect against. Part I additionally proposes a two-tiered approach to interpreting the clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. Part II of the paper then explores what confrontation should mean, both historically and practically, in the context of non-testimonial hearsay. After marshaling relevant caselaw, historical texts, jury instructions and practitioners' guides, Part II additionally concludes that simply re-implementing the old pre-Crawford regime would not adequately or faithfully result in the type of meaningful confrontation demanded by the clause. Part III then proposes four interpretive reforms that would bring American courts closer to harmonizing the Confrontation Clause's regulation with the provision's full range of historical and practical values.
{"title":"Crawford's Aftershock: Aligning the Regulation of Non-Testimonial Hearsay with the History and Purposes of the Confrontation Clause","authors":"Fred O. Smith, Jr.","doi":"10.2139/ssrn.1024245","DOIUrl":"https://doi.org/10.2139/ssrn.1024245","url":null,"abstract":"Through Crawford v. Washington and its progeny, the United States Supreme Court has limited the reach of the Confrontation Clause to testimonial hearsay. Testimonial hearsay, the court reasoned, was the primary object of the clause. Other commentators have highlighted the history that persuasively shows that banning testimonial hearsay was the chief motivation behind the Confrontation Clause. But what do the purposes and history of the clause have to say about the admission of non-testimonial hearsay statements? Part I examines common law near the Founding, and argues that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect against. Part I additionally proposes a two-tiered approach to interpreting the clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. Part II of the paper then explores what confrontation should mean, both historically and practically, in the context of non-testimonial hearsay. After marshaling relevant caselaw, historical texts, jury instructions and practitioners' guides, Part II additionally concludes that simply re-implementing the old pre-Crawford regime would not adequately or faithfully result in the type of meaningful confrontation demanded by the clause. Part III then proposes four interpretive reforms that would bring American courts closer to harmonizing the Confrontation Clause's regulation with the provision's full range of historical and practical values.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"1 1","pages":""},"PeriodicalIF":4.9,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68129018","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}
Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.
{"title":"The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example","authors":"William H. Simon","doi":"10.2139/SSRN.1025984","DOIUrl":"https://doi.org/10.2139/SSRN.1025984","url":null,"abstract":"Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"60 1","pages":"1555"},"PeriodicalIF":4.9,"publicationDate":"2007-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68129860","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":"Doubtful duty: physicians' legal obligation to treat during an epidemic.","authors":"Ariel R Schwartz","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"60 2","pages":"657-94"},"PeriodicalIF":4.9,"publicationDate":"2007-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27337307","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}
Justice Holmes's judicial and extrajudicial writings implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies. Its main elements are that (1) the existence and duration of an emergency are questions of fact; (2) during emergencies courts should not practice judicial minimalism or the passive virtues; (3) during emergencies there are no non-derogable rights - government can do anything if circumstances warrant; (4) the main checks on governmental action during emergencies are that (a) legislative limitation of executive powers trumps, where the political branches disagree; and (b) judges engage in ex post sunsetting, once an emergency has in fact ended, by declaring the emergency terminated and rescinding the government's emergency powers. I then offer a broader evaluation of Holmes's views, suggesting that the epistemic theory of emergencies is the best version of a common-law strategy for regulating government action during emergencies. Throughout, the enterprise is not biographical, historical or doctrinal; it is theoretical.
{"title":"Holmes on Emergencies","authors":"Adrian Vermeule","doi":"10.2139/SSRN.998601","DOIUrl":"https://doi.org/10.2139/SSRN.998601","url":null,"abstract":"Justice Holmes's judicial and extrajudicial writings implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies. Its main elements are that (1) the existence and duration of an emergency are questions of fact; (2) during emergencies courts should not practice judicial minimalism or the passive virtues; (3) during emergencies there are no non-derogable rights - government can do anything if circumstances warrant; (4) the main checks on governmental action during emergencies are that (a) legislative limitation of executive powers trumps, where the political branches disagree; and (b) judges engage in ex post sunsetting, once an emergency has in fact ended, by declaring the emergency terminated and rescinding the government's emergency powers. I then offer a broader evaluation of Holmes's views, suggesting that the epistemic theory of emergencies is the best version of a common-law strategy for regulating government action during emergencies. Throughout, the enterprise is not biographical, historical or doctrinal; it is theoretical.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"61 1","pages":"163"},"PeriodicalIF":4.9,"publicationDate":"2007-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67936344","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}
Today, much public attention and litigation in the wake of the government's response to the September 11, 2001 attacks centers on one or another claims about the government's substantive illegality (such as claims based on the Due Process Clause). This is a mistake. Instead of focusing on the ultimate individual liberty questions, challenges should first focus on equality. Since the terrorist attacks, the government has repeatedly singled out aliens for special disfavor. For example, the Military Commissions Act blatantly discriminates against aliens - shunting the 20 million green-card holders and 5 billion people across the planet into a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment's equality guarantee, such legislation has never been placed in the United States Code. The equality challenges are the next big thing in the war on terror. While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when deciding whether someone can be put before a tribunal with the power to dispense the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out only powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution's guarantee of equal protection, it also eliminates the legislation from the zone of deference traditionally due to the political branches.
{"title":"Equality in the War on Terror","authors":"N. Katyal","doi":"10.4324/9781315260150-9","DOIUrl":"https://doi.org/10.4324/9781315260150-9","url":null,"abstract":"Today, much public attention and litigation in the wake of the government's response to the September 11, 2001 attacks centers on one or another claims about the government's substantive illegality (such as claims based on the Due Process Clause). This is a mistake. Instead of focusing on the ultimate individual liberty questions, challenges should first focus on equality. Since the terrorist attacks, the government has repeatedly singled out aliens for special disfavor. For example, the Military Commissions Act blatantly discriminates against aliens - shunting the 20 million green-card holders and 5 billion people across the planet into a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment's equality guarantee, such legislation has never been placed in the United States Code. The equality challenges are the next big thing in the war on terror. While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when deciding whether someone can be put before a tribunal with the power to dispense the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out only powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution's guarantee of equal protection, it also eliminates the legislation from the zone of deference traditionally due to the political branches.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"59 1","pages":"1365"},"PeriodicalIF":4.9,"publicationDate":"2007-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70643560","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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