In certain circumstances, federal district court judges impose criminal sentences that are required to be consecutive to yet-to-be-imposed state criminal sentences, including those state sentences that may, in fact, never be imposed. The federal courts of appeals are divided as to whether such sentences are statutorily authorized under the applicable provision, 18 U.S.C. ? 3584(a). This Note argues that the sentences are not authorized under the statute, and further, that the sentences infringe on states' and defendants' rights.
{"title":"The Sentences That Bind (The States)","authors":"James J. Sample","doi":"10.2307/1123782","DOIUrl":"https://doi.org/10.2307/1123782","url":null,"abstract":"In certain circumstances, federal district court judges impose criminal sentences that are required to be consecutive to yet-to-be-imposed state criminal sentences, including those state sentences that may, in fact, never be imposed. The federal courts of appeals are divided as to whether such sentences are statutorily authorized under the applicable provision, 18 U.S.C. ? 3584(a). This Note argues that the sentences are not authorized under the statute, and further, that the sentences infringe on states' and defendants' rights.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"969"},"PeriodicalIF":2.9,"publicationDate":"2003-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123782","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. This brief statutory provision frames a much larger question: What is the role of the corporate attorney in securities transactions in the public markets? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper - that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? The bar has long divided over this question, with the bar associations resisting any such obligation. Yet, Section 307 now "federalizes" this issue. Skeptics of a gatekeeper role for attorneys have long argued that (a) such a role conflicts with the traditional obligations of loyalty that the attorney owe their clients; and (b) imposing gatekeeping obligations on attorneys will chill attorney/client communications and thereby reduce law compliance. Thus, they have resisted a pending SEC proposal that would require an attorney to make a "noisy withdrawal" when the attorney is unable to stop or prevent certain ongoing material violations of law by the corporate client. This comment examines these arguments that attorneys make inferior gatekeepers and replies that (i) securities attorneys can and do perform a "gatekeeping" function; (ii) the differences between attorneys and auditors are less fundamental than bar associations maintain; (iii) in some respects, it is easier to impose gatekeeper obligations on attorneys than on auditors; and (iv) imposing such obligations on attorney should neither chill socially desirable client communications nor reduce the attorney's influence over the client (and probably will increase that leverage). Finally, this comments examines specific standards and obligations that the SEC might adopt to recognize the securities attorney's role as a gatekeeper. Going beyond the narrow "noisy withdrawal" issue, it proposes both limited certification and independence standards.
{"title":"The Attorney as Gatekeeper: An Agenda for the Sec","authors":"J. Coffee, J. Coffee","doi":"10.2139/SSRN.395181","DOIUrl":"https://doi.org/10.2139/SSRN.395181","url":null,"abstract":"Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe \"minimum standards of professional conduct\" for attorneys \"appearing or practicing\" before it. This brief statutory provision frames a much larger question: What is the role of the corporate attorney in securities transactions in the public markets? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper - that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? The bar has long divided over this question, with the bar associations resisting any such obligation. Yet, Section 307 now \"federalizes\" this issue. Skeptics of a gatekeeper role for attorneys have long argued that (a) such a role conflicts with the traditional obligations of loyalty that the attorney owe their clients; and (b) imposing gatekeeping obligations on attorneys will chill attorney/client communications and thereby reduce law compliance. Thus, they have resisted a pending SEC proposal that would require an attorney to make a \"noisy withdrawal\" when the attorney is unable to stop or prevent certain ongoing material violations of law by the corporate client. This comment examines these arguments that attorneys make inferior gatekeepers and replies that (i) securities attorneys can and do perform a \"gatekeeping\" function; (ii) the differences between attorneys and auditors are less fundamental than bar associations maintain; (iii) in some respects, it is easier to impose gatekeeper obligations on attorneys than on auditors; and (iv) imposing such obligations on attorney should neither chill socially desirable client communications nor reduce the attorney's influence over the client (and probably will increase that leverage). Finally, this comments examines specific standards and obligations that the SEC might adopt to recognize the securities attorney's role as a gatekeeper. Going beyond the narrow \"noisy withdrawal\" issue, it proposes both limited certification and independence standards.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1293"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68670503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties. Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent. Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism's constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism's fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole, and interpreted in a fashion in keeping both with international law and the new federalism itself.
{"title":"Does Federalism Constrain the Treaty Power","authors":"E. Swaine","doi":"10.2307/1123717","DOIUrl":"https://doi.org/10.2307/1123717","url":null,"abstract":"The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties. Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent. Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism's constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism's fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole, and interpreted in a fashion in keeping both with international law and the new federalism itself.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"403"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123717","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of “information platforms” that support the viewing of content—be they instant messaging systems, media players, or Web browsers—face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries—a debate most often played out at the conceptual extremes between the “commons” and “proprietary control” approaches to the Internet and intellectual property policy. This Article proposes a “competitive platforms model” as a new conceptual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face competitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop superior products and enabling them to appropriate rewards from their inventions. Alternatively, where a particular information platform emerges as the dominant one—for example, in the case of Microsoft Windows in the market for PC operating systems—intellectual property protection against the reverse engineering of its platform standard or user interface should recede. As a strategy to implement the competitive platforms model, this Article proposes a reformulation of the fair use and misuse principles—as developed in both copyright and patent law—to provide a unified, clear, and coherent framework for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the federal government to reassume the critical coordination and funding roles they served in the early days of the Internet in order to support the development of the parts of the Internet’s information infrastructure that are intrinsically open to all and thus are vulnerable to underinvestment.
{"title":"The Internet, Innovation, and Intellectual Property Policy","authors":"P. Weiser","doi":"10.2307/1123718","DOIUrl":"https://doi.org/10.2307/1123718","url":null,"abstract":"The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of “information platforms” that support the viewing of content—be they instant messaging systems, media players, or Web browsers—face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries—a debate most often played out at the conceptual extremes between the “commons” and “proprietary control” approaches to the Internet and intellectual property policy. This Article proposes a “competitive platforms model” as a new conceptual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face competitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop superior products and enabling them to appropriate rewards from their inventions. Alternatively, where a particular information platform emerges as the dominant one—for example, in the case of Microsoft Windows in the market for PC operating systems—intellectual property protection against the reverse engineering of its platform standard or user interface should recede. As a strategy to implement the competitive platforms model, this Article proposes a reformulation of the fair use and misuse principles—as developed in both copyright and patent law—to provide a unified, clear, and coherent framework for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the federal government to reassume the critical coordination and funding roles they served in the early days of the Internet in order to support the development of the parts of the Internet’s information infrastructure that are intrinsically open to all and thus are vulnerable to underinvestment.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"534"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123718","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"THE RIGHT TO EDUCATION UNDER THE SOUTH AFRICAN CONSTITUTION","authors":"E. Berger","doi":"10.2307/1123719","DOIUrl":"https://doi.org/10.2307/1123719","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"130 1","pages":"614"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123719","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reparations for Slavery and Other Historical Injustices","authors":"E. Posner, Adrian Vermeule","doi":"10.2307/1123721","DOIUrl":"https://doi.org/10.2307/1123721","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"689"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123721","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Law enforcement in the United States relies on racial identifiers as a crucial part of suspect descriptions. Unlike racial profiling, this practice is regarded as both an essential tool for law enforcement and as an unproblematic use of race. However, given the racial history of the United States, such descriptors, particularly 'Black, " have developed in such a way to create an extremely large and unreliable category. Due to these factors, the use ofrace as a physical descriptor in suspect decisions is both discriminatory and inefficient. Employing race as an identifying characteristic allows law enforcement officers broad discretionary powers that can be used in a discrim? inatory manner, while ultimately proving counterproductive to the aims of effective law enforcement. As an alternative to using racial classifications, this Note proposes the development of a universal complexion chart that will allow officers to continue to collect the information necessary to create accu? rate suspect descriptions while lessening discriminatory impact.
{"title":"The Color of Crime: The Case Against Race-Based Suspect Descriptions","authors":"B. A. Walker","doi":"10.2307/1123720","DOIUrl":"https://doi.org/10.2307/1123720","url":null,"abstract":"Law enforcement in the United States relies on racial identifiers as a crucial part of suspect descriptions. Unlike racial profiling, this practice is regarded as both an essential tool for law enforcement and as an unproblematic use of race. However, given the racial history of the United States, such descriptors, particularly 'Black, \" have developed in such a way to create an extremely large and unreliable category. Due to these factors, the use ofrace as a physical descriptor in suspect decisions is both discriminatory and inefficient. Employing race as an identifying characteristic allows law enforcement officers broad discretionary powers that can be used in a discrim? inatory manner, while ultimately proving counterproductive to the aims of effective law enforcement. As an alternative to using racial classifications, this Note proposes the development of a universal complexion chart that will allow officers to continue to collect the information necessary to create accu? rate suspect descriptions while lessening discriminatory impact.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"662"},"PeriodicalIF":2.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123720","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Carpe Demonstratores: Towards a Bright-Line Rule Governing Seizure in Excessive Force Claims Brought by Demonstrators","authors":"R. Paradis","doi":"10.2307/1123695","DOIUrl":"https://doi.org/10.2307/1123695","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"316"},"PeriodicalIF":2.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123695","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Direct and Collateral Federal Court Review of the Adequacy of State Procedural Rules","authors":"Catherine T. Struve","doi":"10.2307/1123694","DOIUrl":"https://doi.org/10.2307/1123694","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"243"},"PeriodicalIF":2.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123694","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Preexistence Principle and the Structure of the Class Action","authors":"Richard A. Nagareda","doi":"10.2307/1123693","DOIUrl":"https://doi.org/10.2307/1123693","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"149"},"PeriodicalIF":2.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123693","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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