Corporate law leaves no stone unturned when it comes to litigating corporate fraud. The legal system has developed a remarkable array of litigation options shareholder derivative suits, securities class actions, SEC enforcement actions, even criminal prosecutions all aimed at preventing the next corporate scandal. Scholars have long assumed that these different lawsuits offer different avenues for deterring the masterminds of corporate fraud yet this assumption has gone untested in the legal literature. This Article aims to fill that gap through the first empirical examination of the broader world of corporate fraud litigation. Analyzing over 700 lawsuits, the study reveals that these lawsuits do not target different types of corporate wrongs. Instead these lawsuits too often target the same alleged misconduct, the same defendants, and the same corporate coffers. The data also demonstrate that certain types of lawsuits consistently outperform others, creating a litigation hierarchy within corporate law. These findings raise critical questions about traditional theories of deterrence, suggesting that more may not always be better when it comes to combating corporate fraud. The Article then brings these empirical insights to bear in developing a new framework for more targeted deterrence of corporate fraud.
{"title":"Overlitigating Corporate Fraud: An Empirical Examination","authors":"J. Erickson","doi":"10.31228/osf.io/km5f8","DOIUrl":"https://doi.org/10.31228/osf.io/km5f8","url":null,"abstract":"Corporate law leaves no stone unturned when it comes to litigating corporate fraud. The legal system has developed a remarkable array of litigation options shareholder derivative suits, securities class actions, SEC enforcement actions, even criminal prosecutions all aimed at preventing the next corporate scandal. Scholars have long assumed that these different lawsuits offer different avenues for deterring the masterminds of corporate fraud yet this assumption has gone untested in the legal literature. This Article aims to fill that gap through the first empirical examination of the broader world of corporate fraud litigation. Analyzing over 700 lawsuits, the study reveals that these lawsuits do not target different types of corporate wrongs. Instead these lawsuits too often target the same alleged misconduct, the same defendants, and the same corporate coffers. The data also demonstrate that certain types of lawsuits consistently outperform others, creating a litigation hierarchy within corporate law. These findings raise critical questions about traditional theories of deterrence, suggesting that more may not always be better when it comes to combating corporate fraud. The Article then brings these empirical insights to bear in developing a new framework for more targeted deterrence of corporate fraud.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"97 1","pages":"49"},"PeriodicalIF":1.3,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43490113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Minors who die in the United States hold a property interest in an asset that did not exist when the law established eighteen as the age of legal capacity to devise. These assets are digital assets: email, social networking, documents, photos, text messages, and other forms of digital media. Minors use these assets with a fluidity and ease unrivaled by older generations. Under the current law, minors have no right to decide what happens to their digital property at death. Despite the fact that minors have the capacity to contract with online businesses, make health care decisions, marry, have sex, and seek employment, minors are denied one of the most basic rights of property ownership — the right to devise. This Article is the first to explore how minor capacity law should change to accommodate the changing nature of property and grant minors the right to devise their digital assets. It explores historical capacity standards imposed upon minors in order to own and use property and argues that these standards are no longer adequate to regulate digital assets. It demonstrates how applying succession law instead of an arbitrary age requirement safeguards minors interests, protects property and privacy rights, and promotes the freedom of succession. This Article argues that granting minors the ability to devise digital assets is a logical evolution of minor capacity standards seen in other areas of the law. It has been forty years since we have considered the age of legal capacity to devise property and with the proliferation of digital assets, the time is ripe for a reassessment of minors’ capacity to devise digital property.
{"title":"Minors and Digital Asset Succession","authors":"Natalie M. Banta","doi":"10.2139/SSRN.3199053","DOIUrl":"https://doi.org/10.2139/SSRN.3199053","url":null,"abstract":"Minors who die in the United States hold a property interest in an asset that did not exist when the law established eighteen as the age of legal capacity to devise. These assets are digital assets: email, social networking, documents, photos, text messages, and other forms of digital media. Minors use these assets with a fluidity and ease unrivaled by older generations. Under the current law, minors have no right to decide what happens to their digital property at death. Despite the fact that minors have the capacity to contract with online businesses, make health care decisions, marry, have sex, and seek employment, minors are denied one of the most basic rights of property ownership — the right to devise. This Article is the first to explore how minor capacity law should change to accommodate the changing nature of property and grant minors the right to devise their digital assets. It explores historical capacity standards imposed upon minors in order to own and use property and argues that these standards are no longer adequate to regulate digital assets. It demonstrates how applying succession law instead of an arbitrary age requirement safeguards minors interests, protects property and privacy rights, and promotes the freedom of succession. This Article argues that granting minors the ability to devise digital assets is a logical evolution of minor capacity standards seen in other areas of the law. It has been forty years since we have considered the age of legal capacity to devise property and with the proliferation of digital assets, the time is ripe for a reassessment of minors’ capacity to devise digital property.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"104 1","pages":"1699"},"PeriodicalIF":1.3,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44517724","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
American prosecutors are conventionally understood as having two different roles. They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice. But these two roles are at odds. Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions. But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions. This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all. Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers. In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors. The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments. The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules. The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions. The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles. And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice. But the prosecutor should never act as an adversary committed to winning for its own sake. The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.
{"title":"Against Adversary Prosecution","authors":"Eric S. Fish","doi":"10.2139/SSRN.2820342","DOIUrl":"https://doi.org/10.2139/SSRN.2820342","url":null,"abstract":"American prosecutors are conventionally understood as having two different roles. They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice. But these two roles are at odds. Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions. But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions. This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all. Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers. In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors. The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments. The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules. The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions. The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles. And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice. But the prosecutor should never act as an adversary committed to winning for its own sake. The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"103 1","pages":"1419"},"PeriodicalIF":1.3,"publicationDate":"2018-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2820342","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42628831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For over 70 years, the Due Process Clause has defined the law of personal jurisdiction. This makes sense because being forced to stand trial in a far off state will sometimes be fundamentally unfair. What does not make sense, however, is the Dormant Commerce Clause’s apparent irrelevance to personal jurisdiction. The Dormant Commerce Clause addresses state laws affecting interstate commerce and everybody knows that a plaintiff’s choice of forum is often a commercially-driven choice between different state courts. So why isn’t the Dormant Commerce Clause part of personal jurisdiction doctrine? This Article makes the case for its relevance and does so at time when it can resolve a new and vexing personal jurisdiction issue. Since the Supreme Court’s 2014 decision in Daimler AG v. Bauman — a personal jurisdiction case that significantly curtailed options for forum shoppers — plaintiffs across the country have been attempting to establish jurisdiction using a company’s registration to do business in a state, even when the suit has nothing to do with the company’s business there. Focusing solely on the Due Process Clause, courts across the country have split on the issue. If the courts were to draw on the Dormant Commerce Clause, however, a clear answer would present itself.This Article offers the first comprehensive analysis of how the Dormant Commerce Clause impacts personal jurisdiction. On the question of registration to do business, the Article argues that jurisdiction based on registration violates the Dormant Commerce Clause — but only in cases where the lawsuit has no connection to the forum. Beyond that issue, the Article explains that personal jurisdiction comports with the Dormant Commerce Clause in most situations deemed constitutional under the Due Process Clause. In certain general jurisdiction cases (to the extent any remain after Daimler) and transient jurisdiction cases, however, the Dormant Commerce Clause renders personal jurisdiction unconstitutional.
{"title":"The Dormant Commerce Clause as a Limit on Personal Jurisdiction","authors":"John F. Preis","doi":"10.2139/ssrn.2717556","DOIUrl":"https://doi.org/10.2139/ssrn.2717556","url":null,"abstract":"For over 70 years, the Due Process Clause has defined the law of personal jurisdiction. This makes sense because being forced to stand trial in a far off state will sometimes be fundamentally unfair. What does not make sense, however, is the Dormant Commerce Clause’s apparent irrelevance to personal jurisdiction. The Dormant Commerce Clause addresses state laws affecting interstate commerce and everybody knows that a plaintiff’s choice of forum is often a commercially-driven choice between different state courts. So why isn’t the Dormant Commerce Clause part of personal jurisdiction doctrine? This Article makes the case for its relevance and does so at time when it can resolve a new and vexing personal jurisdiction issue. Since the Supreme Court’s 2014 decision in Daimler AG v. Bauman — a personal jurisdiction case that significantly curtailed options for forum shoppers — plaintiffs across the country have been attempting to establish jurisdiction using a company’s registration to do business in a state, even when the suit has nothing to do with the company’s business there. Focusing solely on the Due Process Clause, courts across the country have split on the issue. If the courts were to draw on the Dormant Commerce Clause, however, a clear answer would present itself.This Article offers the first comprehensive analysis of how the Dormant Commerce Clause impacts personal jurisdiction. On the question of registration to do business, the Article argues that jurisdiction based on registration violates the Dormant Commerce Clause — but only in cases where the lawsuit has no connection to the forum. Beyond that issue, the Article explains that personal jurisdiction comports with the Dormant Commerce Clause in most situations deemed constitutional under the Due Process Clause. In certain general jurisdiction cases (to the extent any remain after Daimler) and transient jurisdiction cases, however, the Dormant Commerce Clause renders personal jurisdiction unconstitutional.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"102 1","pages":"121"},"PeriodicalIF":1.3,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68271115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The past several years have been challenging times for law schools. Many have experienced declines in student enrollment due to a shrinking applicant pool. The declining number of applicants presents increased challenges for law schools, particularly concerning their efforts to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action, it is imperative to engage in a project, such as this, that examines the relationship between racial categories and race-neutral identity factors in law school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools comply with Fisher I’s mandate that universities consider race-neutral means for achieving diversity before using race in the admissions process. Moreover, the data from this study illuminates the structural inequalities that continue to exist for certain racial minority groups and rebuts the assumption that those who are privileged enough to make it to law school are insulated from the structural inequalities that race-conscious affirmative action was created to address.This empirical study surveyed first year law students at public ABA approved law schools and asked them about race-neutral aspects of their identity, such as family background and education institution characteristics, to determine the relationship, if any, between race and certain socioeconomic identity factors. The goal of the project was to determine if there exists a relationship between certain race-neutral identity factors and the race of first year law students. The findings will enhance law schools’ understanding of race-neutral admissions factors that may or may not contribute to their ability to assemble a racially diverse student body, and will give law schools the tools to experiment with trying to yield a racially diverse class without asking applicants about their race. Possessing such knowledge will greatly aid law schools as they develop and implement admissions policies in their efforts to provide greater access to students from backgrounds that are underrepresented in the legal profession while also fulfilling their commitment to educate all law students in a diverse learning environment.
{"title":"Assessing the Viability of Race-Neutral Alternatives in Law School Admissions","authors":"Eboni S. Nelson, Ronald O. Pitner, C. Pratt","doi":"10.2139/SSRN.2849546","DOIUrl":"https://doi.org/10.2139/SSRN.2849546","url":null,"abstract":"The past several years have been challenging times for law schools. Many have experienced declines in student enrollment due to a shrinking applicant pool. The declining number of applicants presents increased challenges for law schools, particularly concerning their efforts to educate students in racially diverse learning environments. In light of recent challenges to the constitutionality of race-conscious affirmative action, it is imperative to engage in a project, such as this, that examines the relationship between racial categories and race-neutral identity factors in law school admissions. Understanding the relationship between racial groups and certain race-neutral identity factors will help law schools comply with Fisher I’s mandate that universities consider race-neutral means for achieving diversity before using race in the admissions process. Moreover, the data from this study illuminates the structural inequalities that continue to exist for certain racial minority groups and rebuts the assumption that those who are privileged enough to make it to law school are insulated from the structural inequalities that race-conscious affirmative action was created to address.This empirical study surveyed first year law students at public ABA approved law schools and asked them about race-neutral aspects of their identity, such as family background and education institution characteristics, to determine the relationship, if any, between race and certain socioeconomic identity factors. The goal of the project was to determine if there exists a relationship between certain race-neutral identity factors and the race of first year law students. The findings will enhance law schools’ understanding of race-neutral admissions factors that may or may not contribute to their ability to assemble a racially diverse student body, and will give law schools the tools to experiment with trying to yield a racially diverse class without asking applicants about their race. Possessing such knowledge will greatly aid law schools as they develop and implement admissions policies in their efforts to provide greater access to students from backgrounds that are underrepresented in the legal profession while also fulfilling their commitment to educate all law students in a diverse learning environment.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"102 1","pages":"2187-2234"},"PeriodicalIF":1.3,"publicationDate":"2016-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2849546","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Customers discriminate by race and gender, with considerable negative consequences for female and minority workers and business owners. Yet anti-discrimination laws apply only to discrimination by firms, not by customers. We examine efficacy and privacy reasons for why this may be so, as well as changing features of the market that, by blurring the line between firms and customers, make current law increasingly irrelevant. We conclude that, while there are reasons to be cautious about regulating customer behavior, those reasons do not justify acceding to customer discrimination altogether. To open a discussion of the regulatory options that take account of the most significant concerns, we offer a modest proposal. This proposal does not create a legal obligation on the part of customers themselves, but rather requires firms that already have nondiscrimination obligations to do more to reduce the occurrence, and consequences, of discrimination by customers.
{"title":"Discrimination by Customers","authors":"K. Bartlett, G. Gulati","doi":"10.2139/SSRN.2540334","DOIUrl":"https://doi.org/10.2139/SSRN.2540334","url":null,"abstract":"Customers discriminate by race and gender, with considerable negative consequences for female and minority workers and business owners. Yet anti-discrimination laws apply only to discrimination by firms, not by customers. We examine efficacy and privacy reasons for why this may be so, as well as changing features of the market that, by blurring the line between firms and customers, make current law increasingly irrelevant. We conclude that, while there are reasons to be cautious about regulating customer behavior, those reasons do not justify acceding to customer discrimination altogether. To open a discussion of the regulatory options that take account of the most significant concerns, we offer a modest proposal. This proposal does not create a legal obligation on the part of customers themselves, but rather requires firms that already have nondiscrimination obligations to do more to reduce the occurrence, and consequences, of discrimination by customers.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"102 1","pages":"223"},"PeriodicalIF":1.3,"publicationDate":"2016-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative. Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision. Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article. This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this. In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.
“现在要面对的问题是，美国社会是否已经达到了这样一个地步:废除死刑不是依赖于特定司法管辖区成功的草根运动，而是第八修正案所要求的。”瑟古德·马歇尔大法官(Thurgood Marshall)在1972年对具有里程碑意义的弗曼诉格鲁吉亚案(Furman v. Georgia)的赞同意见中提出了这个问题，该案件在全国范围内暂停了死刑。四年后，在格雷格诉乔治亚州案中，最高法院的多数法官对这个问题作出了否定的回答。如今，在格雷格去世四十年后，这个问题再次被提出。但这一次似乎有所不同。这是因为，在我国历史上，答案很可能是肯定的。由肯尼迪大法官掌舵的最高法院准备宣布死刑违宪。无论法院的回答是什么，有一点是肯定的:尊严将在其决定中占据突出地位。近年来，尊严的教义意义受到了很多讨论，这在很大程度上要归功于最高法院在美国诉温莎案(U.S. v. Windsor)和奥贝格费尔诉霍奇斯案(Obergefell v. Hodges)中做出的具有分水岭意义的裁决，这些裁决推翻了根据宪法第十四修正案禁止同性婚姻的法律，认为这剥夺了同性伴侣的尊严。然而，很少有人将尊严作为《第八修正案》和《第十四修正案》中的统一原则加以审查，这两项修正案长期以来都对尊严作出了共同的承诺，特别是在最高法院的LGBT权利和死刑判例中，这为这一承诺提供了实质内容。这就是本文的目的。这篇文章认为尊严包含三个主要的关注点——自由、平等和生命。同性恋者权利在第十四修正案下的胜利和死刑在第八修正案下的持续存在暴露了尊严主义的紧张:尊严的最基本方面(生命)受到法律的保护最少。因为尊严主义要求LGBT人群享有自由和平等，它也必须要求废除死刑。如果尊严有什么意义，那一定是这个意思。鉴于预计最高法院将以尊严为由宣布死刑无效，本文从联邦和州最高法院新旧死刑判决、详细描述近年来死刑下降记录的统计数据以及最高法院最近的LGBT权利判例中，为最高法院提供了一个指导框架。它还回应了几个可能的反对意见，并考虑了废除第八修正案及其以外的尊严原则的重要含义。
{"title":"The Death Penalty & the Dignity Clauses","authors":"K. Barry","doi":"10.2139/SSRN.2777847","DOIUrl":"https://doi.org/10.2139/SSRN.2777847","url":null,"abstract":"“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative. Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision. Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article. This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this. In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"102 1","pages":"383"},"PeriodicalIF":1.3,"publicationDate":"2016-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68313638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms. Responding to massive market failures, monopolistic industries badly in need of oversight, and fledgling industries trying to take hold, Congress enacted a plethora of new statutes, created independent agencies, and imbued these agencies with the power to shape and enforce pragmatic industrial policies.Times have changed. Many if not most of the monopolistic and fledgling domestic industries of the early twentieth century have evolved into complex, decentralized enterprises, often multinational in scope. Most New Deal agencies continue to perform some regulatory functions, but market approaches to regulation have replaced many traditional command-and-control formulations. Very much of a piece with the turn to the market for regulatory approaches and techniques has been the widespread use of private actors to carry out governmental functions. Agencies form contracts with private parties; while the agencies specify terms at the outset and maintain degrees of supervisory authority, as a practical matter it is private contractors who deliver many of the services traditionally reserved to government.Though government-by-contract has become the new normal, the Administrative Procedure Act (APA), Congress’s basic roadmap for rulemaking and adjudication in the administrative state, remains troublingly detached from these ubiquitous partnerships. So too are many of the “mini-APAs” and other procedural statutes crafted by state assemblies to control agency practice. For state and federal entities contemplating outsourcing ventures, these laws offer few parameters — and they may be viewed by some as a carte blanche to contract, even where contracting implicates significant human rights concerns.This Article proposes a practical response to the outsourcing revolution: a new statutory framework derived from the elements of contract and directed toward public-private partnerships and contemporary delegations. If successful, our proposal would address the democracy deficit that inheres in the shadowy outsourcing processes that are all too common today; it would invite public stakeholders into the contracting process; and it would offer an essential safeguard to ensure that human rights are respected and preserved in this era of new governance.
{"title":"The Human Side of Public-Private Partnerships: From New Deal Regulation to Administrative Law Management","authors":"Alfred C. Aman, J. Dugan","doi":"10.2139/SSRN.2676276","DOIUrl":"https://doi.org/10.2139/SSRN.2676276","url":null,"abstract":"During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms. Responding to massive market failures, monopolistic industries badly in need of oversight, and fledgling industries trying to take hold, Congress enacted a plethora of new statutes, created independent agencies, and imbued these agencies with the power to shape and enforce pragmatic industrial policies.Times have changed. Many if not most of the monopolistic and fledgling domestic industries of the early twentieth century have evolved into complex, decentralized enterprises, often multinational in scope. Most New Deal agencies continue to perform some regulatory functions, but market approaches to regulation have replaced many traditional command-and-control formulations. Very much of a piece with the turn to the market for regulatory approaches and techniques has been the widespread use of private actors to carry out governmental functions. Agencies form contracts with private parties; while the agencies specify terms at the outset and maintain degrees of supervisory authority, as a practical matter it is private contractors who deliver many of the services traditionally reserved to government.Though government-by-contract has become the new normal, the Administrative Procedure Act (APA), Congress’s basic roadmap for rulemaking and adjudication in the administrative state, remains troublingly detached from these ubiquitous partnerships. So too are many of the “mini-APAs” and other procedural statutes crafted by state assemblies to control agency practice. For state and federal entities contemplating outsourcing ventures, these laws offer few parameters — and they may be viewed by some as a carte blanche to contract, even where contracting implicates significant human rights concerns.This Article proposes a practical response to the outsourcing revolution: a new statutory framework derived from the elements of contract and directed toward public-private partnerships and contemporary delegations. If successful, our proposal would address the democracy deficit that inheres in the shadowy outsourcing processes that are all too common today; it would invite public stakeholders into the contracting process; and it would offer an essential safeguard to ensure that human rights are respected and preserved in this era of new governance.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2676276","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68251435","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"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 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected this “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Almost ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has there has been little rigorous empirical examination of eBay’s actual impact in patent litigation.This Article helps fill this gap in the literature by reporting the results of an original empirical study of contested permanent injunction decisions in district courts for a 7½ year period following eBay. It finds that eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum. Finally, this Article considers some implications of these findings for both participants in the patent system and policy makers.
{"title":"Permanent Injunctions in Patent Litigation After eBay: An Empirical Study","authors":"Christopher B. Seaman","doi":"10.2139/SSRN.2632834","DOIUrl":"https://doi.org/10.2139/SSRN.2632834","url":null,"abstract":"The Supreme Court’s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected this “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Almost ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has there has been little rigorous empirical examination of eBay’s actual impact in patent litigation.This Article helps fill this gap in the literature by reporting the results of an original empirical study of contested permanent injunction decisions in district courts for a 7½ year period following eBay. It finds that eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum. Finally, this Article considers some implications of these findings for both participants in the patent system and policy makers.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"101 1","pages":"1949"},"PeriodicalIF":1.3,"publicationDate":"2015-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68232827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on the role of robots in copyright's cosmology.
{"title":"Copyright for Literate Robots","authors":"James Grimmelmann","doi":"10.31228/osf.io/z38qm","DOIUrl":"https://doi.org/10.31228/osf.io/z38qm","url":null,"abstract":"Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on the role of robots in copyright's cosmology.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"101 1","pages":"657"},"PeriodicalIF":1.3,"publicationDate":"2015-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：