Pub Date : 2005-11-29DOI: 10.1017/CBO9780511921629.017
G. Fisher
In 1981 Lawrence Friedman and Robert Percival published The Roots of Justice, their study of the criminal justice system of Alameda County between 1870 and 1910. Working in the sooty port town of Oakland, they unearthed records of prisons, press, courts, and cops. Then they reconstructed the entire criminal justice system, from curbside police discipline to flashlit courtroom morality plays. In honor of the book's twenty-fifth anniversary, this essay follows a short distance in its trail. It reopens the murder trial of Hugh Cull, mentioned by Friedman and Percival in a brief footnote. Cull killed his wife in front of their seven-year-old daughter, but won acquittal when the trial judge deemed the girl incompetent to testify. The case turns out to be much more than another acquittal staked on a legal technicality. Unraveling its elaborate plot requires close attention to Lawrence Friedman's writings - not only Roots of Justice, but also his later studies of marriage and divorce in this era.
1981年，劳伦斯·弗里德曼(Lawrence Friedman)和罗伯特·珀西瓦尔(Robert Percival)出版了《正义的根源》(The Roots of Justice)一书，研究了1870年至1910年间阿拉米达县的刑事司法系统。他们在烟雾弥漫的港口城市奥克兰工作，发现了监狱、媒体、法院和警察的记录。然后他们重建了整个刑事司法系统，从路边的警察纪律到法庭上的道德剧。为了纪念这本书出版25周年，这篇文章沿着它的轨迹走了一小段路。它重新开启了对休·卡尔的谋杀审判，弗里德曼和珀西瓦尔在一个简短的脚注中提到了这一点。卡尔当着七岁女儿的面杀害了自己的妻子，但当初审法官认为女儿没有能力作证时，他获得了无罪释放。事实证明，这起案件远不止是另一起押注在法律技术细节上的无罪释放。要解开其复杂的情节，需要密切关注劳伦斯·弗里德曼的著作——不仅是《正义的根源》，还有他后来对这个时代婚姻和离婚的研究。
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Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.
{"title":"Patenting nanotechnology.","authors":"Mark A Lemley","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 2","pages":"601-30"},"PeriodicalIF":4.9,"publicationDate":"2005-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25785931","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}
Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.
{"title":"Patenting nanotechnology.","authors":"Mark A. Lemley","doi":"10.2139/ssrn.741326","DOIUrl":"https://doi.org/10.2139/ssrn.741326","url":null,"abstract":"Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 2 1","pages":"601-30"},"PeriodicalIF":4.9,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67816207","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 Democracy and Distrust and War and Responsibility, John Hart Ely advanced a participation-oriented, representation-reinforcing approach to judicial review that addressed problems of entrenchment, discrimination, and legislative delegation. This essay, which was written as the foreword to a symposium honoring Ely held at Stanford Law School in April 2004, discusses four recent Supreme Court decisions that map onto the central preoccupations in Ely's work: McConnell v. Federal Election Commission; Lawrence v. Texas; Vieth v. Jubelirer; and Hamdi v. Rumsfeld. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given cross-cutting concerns with problems of entrenchment. While there are anti-entrenchment arguments on both sides of the debate over campaign finance reform, we suggest that, given the way in which Ely's anti-entrenchment theory focused on incumbent holders of government power, courts should be especially wary of restrictions that limit the speech of challengers. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Ely was a harsh critic of substantive due process. While the Court's opinion rests as a formal matter on substantive due process, rather than equal protection, a close reading suggests that Lawrence gives perhaps the first known Elysian reason for a substantive due process ruling: that it was necessary to invalidate a discriminatory law as if it applied to all persons in order to prevent the aftereffects of discrimination that would linger if it were not. Vieth shows how questions of political gerrymandering lie at the intersection of Ely's concerns with entrenchment and discrimination. While the Supreme Court has seen political gerrymandering as a species of discrimination, the larger problem is one of entrenchment, rather than the mistreatment of discrete and insular groups. The problem with the contemporary approach is not just that it is factually ill grounded: whatever else may be the case, it is hard to view the adherents of the two major political parties as discrete and insular minorities incapable of protecting themselves and victimized by prejudice. Rather, the problem is that the failure to recognize the issue as one of entrenchment can actually exacerbate political channel clogging and undercut effective and accountable representation. Finally, Hamdi confronts the question of how judicial review can reinforce congressional responsibility with respect to the use of military force and the protection of civil liberties given a world in which our most threatening enemies are no longer other nations. We show how War and Responsibility fleshes out one of the often-overlooked sections of Democracy and Distrust - its proposal to revive some version of the nondelegation doctrine - as a tool for ensuring accountability in decisions regarding the decision to go to war and identify echoes of Ely's theory in the three opinions in
{"title":"The Elysian Fields of the Law","authors":"K. M. Sullivan, Pamela S. Karlan","doi":"10.2139/SSRN.630805","DOIUrl":"https://doi.org/10.2139/SSRN.630805","url":null,"abstract":"In Democracy and Distrust and War and Responsibility, John Hart Ely advanced a participation-oriented, representation-reinforcing approach to judicial review that addressed problems of entrenchment, discrimination, and legislative delegation. This essay, which was written as the foreword to a symposium honoring Ely held at Stanford Law School in April 2004, discusses four recent Supreme Court decisions that map onto the central preoccupations in Ely's work: McConnell v. Federal Election Commission; Lawrence v. Texas; Vieth v. Jubelirer; and Hamdi v. Rumsfeld. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given cross-cutting concerns with problems of entrenchment. While there are anti-entrenchment arguments on both sides of the debate over campaign finance reform, we suggest that, given the way in which Ely's anti-entrenchment theory focused on incumbent holders of government power, courts should be especially wary of restrictions that limit the speech of challengers. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Ely was a harsh critic of substantive due process. While the Court's opinion rests as a formal matter on substantive due process, rather than equal protection, a close reading suggests that Lawrence gives perhaps the first known Elysian reason for a substantive due process ruling: that it was necessary to invalidate a discriminatory law as if it applied to all persons in order to prevent the aftereffects of discrimination that would linger if it were not. Vieth shows how questions of political gerrymandering lie at the intersection of Ely's concerns with entrenchment and discrimination. While the Supreme Court has seen political gerrymandering as a species of discrimination, the larger problem is one of entrenchment, rather than the mistreatment of discrete and insular groups. The problem with the contemporary approach is not just that it is factually ill grounded: whatever else may be the case, it is hard to view the adherents of the two major political parties as discrete and insular minorities incapable of protecting themselves and victimized by prejudice. Rather, the problem is that the failure to recognize the issue as one of entrenchment can actually exacerbate political channel clogging and undercut effective and accountable representation. Finally, Hamdi confronts the question of how judicial review can reinforce congressional responsibility with respect to the use of military force and the protection of civil liberties given a world in which our most threatening enemies are no longer other nations. We show how War and Responsibility fleshes out one of the often-overlooked sections of Democracy and Distrust - its proposal to revive some version of the nondelegation doctrine - as a tool for ensuring accountability in decisions regarding the decision to go to war and identify echoes of Ely's theory in the three opinions in","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"57 1","pages":"695-722"},"PeriodicalIF":4.9,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67780062","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 presents the results of an empirical investigation of the frequency with which financial institutions submit claims in settled securities class actions. We combine an empirical study of a large set of settlements with the results of a survey of institutional investors about their claims filing practices. Our sample for the first part of the analysis contains 118 settlements that were not included in our earlier study. We find that less than 30% of institutional investors with provable losses perfect their claims in these settlements. We then explore the possible explanations for this widespread failure. We suggest a wide range of potential problems from mechanical failures in the notification and recordkeeping processes to more subtle issues such as portfolio managers' beliefs that only investment activities produce significant returns for their clients. In order to determine which of these problems were the main culprits, we surveyed institutional investors about their claims filing practices, asking them who was responsible for this task, how they performed it, and what, if any, performance monitoring was done. We learned that most institutions relied on their custodian banks to file claims for them in securities fraud class action settlements, that many of these institutions did little monitoring of whether the custodian actually performed these services, and that custodians had financial disincentives to file claims on behalf of their clients. We argue that any such failures should be evaluated as potential breaches of the duty of care consistent with the monitoring obligations embraced in Delaware's Caremark decision. Applying this standard to our problem, we believe that the trustees of institutional investors must, in good faith, insure that their fund has an adequate system in place to identify and process the fund's claims. Furthermore, they should create a monitoring mechanism to insure that this system is adequate, and if they learn it is inadequate they should take measures to fix the problem. Custodians that file claims on behalf of their institutional clients should perform the various aspects of this job with due care, too, or face potential liability for negligence. We then identify several discrete problems with the claims filing system that can be addressed to help remedy the current situation. We conclude our article with two observations about the implications of our results for the goals of securities fraud litigation. Our survey results show a serious mismatch between the beneficiaries of the settlement and those that have been harmed by the securities violation that gave rise to the settlement. Simply stated, many defrauded beneficiaries are not compensated for their losses, while others are unjustly enriched. Given the enormous importance of institutional investors in the market, this mismatch raises serious doubts about whether securities fraud class actions can be justified as compensatory mechanisms. Moreov
{"title":"Letting Billions Slip Through Your Fingers: Empirical Evidence and Legal Implications of the Failure of Financial Institutions to Participate in Securities Class Action Settlements","authors":"James D. Cox, Randall S. Thomas","doi":"10.2139/SSRN.655181","DOIUrl":"https://doi.org/10.2139/SSRN.655181","url":null,"abstract":"This article presents the results of an empirical investigation of the frequency with which financial institutions submit claims in settled securities class actions. We combine an empirical study of a large set of settlements with the results of a survey of institutional investors about their claims filing practices. Our sample for the first part of the analysis contains 118 settlements that were not included in our earlier study. We find that less than 30% of institutional investors with provable losses perfect their claims in these settlements. We then explore the possible explanations for this widespread failure. We suggest a wide range of potential problems from mechanical failures in the notification and recordkeeping processes to more subtle issues such as portfolio managers' beliefs that only investment activities produce significant returns for their clients. In order to determine which of these problems were the main culprits, we surveyed institutional investors about their claims filing practices, asking them who was responsible for this task, how they performed it, and what, if any, performance monitoring was done. We learned that most institutions relied on their custodian banks to file claims for them in securities fraud class action settlements, that many of these institutions did little monitoring of whether the custodian actually performed these services, and that custodians had financial disincentives to file claims on behalf of their clients. We argue that any such failures should be evaluated as potential breaches of the duty of care consistent with the monitoring obligations embraced in Delaware's Caremark decision. Applying this standard to our problem, we believe that the trustees of institutional investors must, in good faith, insure that their fund has an adequate system in place to identify and process the fund's claims. Furthermore, they should create a monitoring mechanism to insure that this system is adequate, and if they learn it is inadequate they should take measures to fix the problem. Custodians that file claims on behalf of their institutional clients should perform the various aspects of this job with due care, too, or face potential liability for negligence. We then identify several discrete problems with the claims filing system that can be addressed to help remedy the current situation. We conclude our article with two observations about the implications of our results for the goals of securities fraud litigation. Our survey results show a serious mismatch between the beneficiaries of the settlement and those that have been harmed by the securities violation that gave rise to the settlement. Simply stated, many defrauded beneficiaries are not compensated for their losses, while others are unjustly enriched. Given the enormous importance of institutional investors in the market, this mismatch raises serious doubts about whether securities fraud class actions can be justified as compensatory mechanisms. Moreov","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"58 1","pages":"411-454"},"PeriodicalIF":4.9,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.655181","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67787572","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}
Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice.The advent of unconditional copyright has generated little comment in the academic literature - perhaps because the very term formalities signals that the former requirements were trifling, ministerial, or more bothersome than helpful. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities - albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.
{"title":"Reform(aliz)ing Copyright","authors":"Christopher Sprigman","doi":"10.4324/9781315092621-8","DOIUrl":"https://doi.org/10.4324/9781315092621-8","url":null,"abstract":"Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a conditional copyright system that premised the existence and continuation of copyright on compliance with formalities, to an unconditional system, where copyright arises automatically when a work is fixed. Richard Epstein has aptly characterized these changes as copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not. That is a fundamental shift in any property rights regime, and one that, in the copyright context, represented a break with almost two centuries of practice.The advent of unconditional copyright has generated little comment in the academic literature - perhaps because the very term formalities signals that the former requirements were trifling, ministerial, or more bothersome than helpful. This paper argues that the disappearance of formalities was an important shift, and a harmful one. The paper recommends the re-introduction of formalities - albeit in a new form that accounts for changes in technology and complies with our international obligations under the Berne Convention, the principal international treaty governing copyright. This paper explores the important role that formalities played in our traditional copyright regime, particularly with respect to maintaining a balance between private incentives to produce creative works, and public access to those works. The paper then lays out a few possible approaches to re-introducing new-style formalities that comply with Berne.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"57 1","pages":"485-568"},"PeriodicalIF":4.9,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629207","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}
Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other cognitive artifacts that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.
{"title":"Evidence, Procedure, and the Upside of Cognitive Error","authors":"C. Sanchirico","doi":"10.2139/SSRN.497882","DOIUrl":"https://doi.org/10.2139/SSRN.497882","url":null,"abstract":"Humans are imperfect information processors, a fact almost universally bemoaned in legal scholarship. But when it comes to how the legal system itself processes information, cognitive limitations are largely good news. Evidentiary procedure - inclusive of trial, discovery, and investigation - relies heavily on the fact that human mental capacity is limited. Such limits are crucial to separating sincere from insincere testimony. Moreover, notes and other cognitive artifacts that individuals make to compensate for their limited cognitive ability are an important source of evidence. This article's primary objective is to elucidate the extent to which cognitive imperfection is beneficial rather than detrimental to evidentiary process and thus to law as a whole. Secondarily, the article discusses how the law of evidentiary process tilts the playing field of litigation in a manner that exacerbates the cognitive limitations of the potentially insincere and offsets the limitations of competing participants.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"57 1","pages":"291-365"},"PeriodicalIF":4.9,"publicationDate":"2004-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67751571","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}
Suing actual infringers is passe in copyright law. In the digital environment, the real stakes lie in suing those who facilitate infringement by others. There is of course a good reason copyright owners are filing such suits. They see themselves as under threat from a flood of cheap, easy copies and a dramatic increase in the number of people who can make those copies. The high volume of illegal uses, and the low return to suing any individual, make it more cost-effective to aim as far up the chain as possible. From the perspective of the movie industry, it's easier and more effective to shut down Napster than to sue the millions of people who traded files illegally on Napster. So far, the courts have been willing to go along, shutting down a number of innovative services in the digital music realm.In this article, we argue that unrestricted liability for anyone who is in any way involved with copyright infringement is a bad idea. Indirect liability is a continuum, in which acts most closely related to infringement and with the fewest affirmative benefits are the easiest to condemn. Going after makers of technology for the uses to which their technologies may be put threatens to stifle innovation. The fundamental difficulty is that while courts can make decisions about direct infringement on a case-by-case basis, lawsuits based on indirect liability necessarily sweep together both socially beneficial and socially harmful uses of a program or service, either permitting both uses or condemning both. Optimal digital copyright policy would do two things: stop deterring innovators, and permit cost-effective enforcement of copyright in the digital environment. In this paper, we suggest at least two possible alternatives that might provide ways out of the digital copyright morass. Both alternatives stem from the basic economics of copyright enforcement. It is not currently cost-effective for copyright owners to sue individual infringers, because there are tens of millions of them, because lawsuits are expensive, and because each infringer would be liable only for minimal damages. They are happy to sue facilitators instead, because there are fewer of them and both damages and the benefits of injunctive relief are substantial. Copyright owners have no incentive to permit optimal innovation by facilitators, because they do not benefit from that innovation except indirectly. Individual infringers in turn have no incentive to change their behavior or to subscribe to fee-based services, because they suffer none of the costs of infringement. One solution is to change the incentives of individuals. Because individual users of peer-to-peer (p2p) networks know that it is extremely unlikely they will be sued, economic theory suggests that the only way to effectively deter infringement is to increase the effective sanction substantially for those who are caught. Were the government to begin criminally prosecuting selected users of peer-to-peer services - or were th
{"title":"Reducing Digital Copyright Infringement Without Restricting Innovation","authors":"Mark A. Lemley, R. A. Reese","doi":"10.31235/osf.io/n4863","DOIUrl":"https://doi.org/10.31235/osf.io/n4863","url":null,"abstract":"Suing actual infringers is passe in copyright law. In the digital environment, the real stakes lie in suing those who facilitate infringement by others. There is of course a good reason copyright owners are filing such suits. They see themselves as under threat from a flood of cheap, easy copies and a dramatic increase in the number of people who can make those copies. The high volume of illegal uses, and the low return to suing any individual, make it more cost-effective to aim as far up the chain as possible. From the perspective of the movie industry, it's easier and more effective to shut down Napster than to sue the millions of people who traded files illegally on Napster. So far, the courts have been willing to go along, shutting down a number of innovative services in the digital music realm.In this article, we argue that unrestricted liability for anyone who is in any way involved with copyright infringement is a bad idea. Indirect liability is a continuum, in which acts most closely related to infringement and with the fewest affirmative benefits are the easiest to condemn. Going after makers of technology for the uses to which their technologies may be put threatens to stifle innovation. The fundamental difficulty is that while courts can make decisions about direct infringement on a case-by-case basis, lawsuits based on indirect liability necessarily sweep together both socially beneficial and socially harmful uses of a program or service, either permitting both uses or condemning both. Optimal digital copyright policy would do two things: stop deterring innovators, and permit cost-effective enforcement of copyright in the digital environment. In this paper, we suggest at least two possible alternatives that might provide ways out of the digital copyright morass. Both alternatives stem from the basic economics of copyright enforcement. It is not currently cost-effective for copyright owners to sue individual infringers, because there are tens of millions of them, because lawsuits are expensive, and because each infringer would be liable only for minimal damages. They are happy to sue facilitators instead, because there are fewer of them and both damages and the benefits of injunctive relief are substantial. Copyright owners have no incentive to permit optimal innovation by facilitators, because they do not benefit from that innovation except indirectly. Individual infringers in turn have no incentive to change their behavior or to subscribe to fee-based services, because they suffer none of the costs of infringement. One solution is to change the incentives of individuals. Because individual users of peer-to-peer (p2p) networks know that it is extremely unlikely they will be sued, economic theory suggests that the only way to effectively deter infringement is to increase the effective sanction substantially for those who are caught. Were the government to begin criminally prosecuting selected users of peer-to-peer services - or were th","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"1345"},"PeriodicalIF":4.9,"publicationDate":"2004-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652550","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 tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, two federal courts of appeals have recently reinstated challenges to such laws. A number of states have recently made it easier for ex-offenders to regain their voting rights. Recent public opinion surveys find overwhelming support for restoring the franchise to offenders who have otherwise completed their sentences. On the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. This essay discusses some of the causes and consequences for the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes are seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement. Felon disenfranchisement cases offer an attractive vehicle for courts concerned with the staggering burdens the war on drugs and significantly disparate incarceration rates have imposed on the minority community. The legitimacy of criminal punishment depends on the legitimacy of the process that produces and enforces the criminal law. The legitimacy of that process in turn depends on the ability of citizens to participate equally in choosing the officials who enact and administer criminal punishment. Lifetime disenfranchisement of ex-offenders short circuits this process in a pernicious and self-reinforcing way. Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory - as I think we must - this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining. Blanket disenfranchisement statutes also raise serious questions under the Eighth Amendment, given the Supreme Court's recent decisions in Atkins v. Virginia and Ewing v. California.
{"title":"Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement","authors":"Pamela S. Karlan","doi":"10.2139/SSRN.484543","DOIUrl":"https://doi.org/10.2139/SSRN.484543","url":null,"abstract":"The tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, two federal courts of appeals have recently reinstated challenges to such laws. A number of states have recently made it easier for ex-offenders to regain their voting rights. Recent public opinion surveys find overwhelming support for restoring the franchise to offenders who have otherwise completed their sentences. On the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. This essay discusses some of the causes and consequences for the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes are seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement. Felon disenfranchisement cases offer an attractive vehicle for courts concerned with the staggering burdens the war on drugs and significantly disparate incarceration rates have imposed on the minority community. The legitimacy of criminal punishment depends on the legitimacy of the process that produces and enforces the criminal law. The legitimacy of that process in turn depends on the ability of citizens to participate equally in choosing the officials who enact and administer criminal punishment. Lifetime disenfranchisement of ex-offenders short circuits this process in a pernicious and self-reinforcing way. Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory - as I think we must - this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining. Blanket disenfranchisement statutes also raise serious questions under the Eighth Amendment, given the Supreme Court's recent decisions in Atkins v. Virginia and Ewing v. California.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"1147-1170"},"PeriodicalIF":4.9,"publicationDate":"2004-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748115","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 undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the "wrongdoing thesis" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such "statements" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the "expressivist thesis" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the "culpability thesis" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part
{"title":"Punishing Hatred and Prejudice","authors":"Heidi M. Hurd, M. Moore","doi":"10.2139/SSRN.472761","DOIUrl":"https://doi.org/10.2139/SSRN.472761","url":null,"abstract":"This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the \"wrongdoing thesis\" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such \"statements\" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the \"expressivist thesis\" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the \"culpability thesis\" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"56 1","pages":"1081-1146"},"PeriodicalIF":4.9,"publicationDate":"2003-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67743997","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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