Existing research indicates that members of poor and minority groups are less likely than their higher income counterparts to seek help when they experience a civil legal problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience such problems. Inaction is even more pronounced among poor blacks. This Article uses original empirical data to provide novel explanations for these puzzling and troubling statistics. This study shows, for the first time, a connection between negative past experiences with the criminal justice system and decisions to seek help for civil justice problems. For those familiar with the law, civil and criminal law are separate categories across which experiences do not generalize, any more than a negative experience of subways would lead one to avoid driving. For most respondents, though, the criminal and civil justice systems are one and the same. Injustices they perceive in the criminal system translate into the belief that the legal system as a whole is unjust and should be avoided. Second, the Article shows that past negative experiences with a broad array of public institutions perceived as legal in nature caused respondents to feel lost and ashamed, leading them to avoid interaction with all legal institutions. Third, my data and interviews suggest that respondents helped make sense of these troubling experiences by more generally portraying themselves as self-sufficient citizens who solve their own problems. Seeking help from the legal system might run counter to this self-portrayal. Finally, this Article provides a novel analysis of racial differences in how much citizens use the civil legal system and argues that disparities in trust levels help to explain these differences. The Article concludes by discussing potential policy implications of the findings and identifies key areas for further research.
{"title":"Race, Class, and Access to Civil Justice","authors":"S. Greene","doi":"10.2139/SSRN.2592150","DOIUrl":"https://doi.org/10.2139/SSRN.2592150","url":null,"abstract":"Existing research indicates that members of poor and minority groups are less likely than their higher income counterparts to seek help when they experience a civil legal problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience such problems. Inaction is even more pronounced among poor blacks. This Article uses original empirical data to provide novel explanations for these puzzling and troubling statistics. This study shows, for the first time, a connection between negative past experiences with the criminal justice system and decisions to seek help for civil justice problems. For those familiar with the law, civil and criminal law are separate categories across which experiences do not generalize, any more than a negative experience of subways would lead one to avoid driving. For most respondents, though, the criminal and civil justice systems are one and the same. Injustices they perceive in the criminal system translate into the belief that the legal system as a whole is unjust and should be avoided. Second, the Article shows that past negative experiences with a broad array of public institutions perceived as legal in nature caused respondents to feel lost and ashamed, leading them to avoid interaction with all legal institutions. Third, my data and interviews suggest that respondents helped make sense of these troubling experiences by more generally portraying themselves as self-sufficient citizens who solve their own problems. Seeking help from the legal system might run counter to this self-portrayal. Finally, this Article provides a novel analysis of racial differences in how much citizens use the civil legal system and argues that disparities in trust levels help to explain these differences. The Article concludes by discussing potential policy implications of the findings and identifies key areas for further research.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"101 1","pages":"1234"},"PeriodicalIF":1.3,"publicationDate":"2015-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68214724","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}
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.
{"title":"The Prosser Letters: 1917-1948","authors":"C. Robinette","doi":"10.2139/SSRN.2586209","DOIUrl":"https://doi.org/10.2139/SSRN.2586209","url":null,"abstract":"William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"101 1","pages":"1143-1185"},"PeriodicalIF":1.3,"publicationDate":"2015-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2586209","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68213474","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}
Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. The article calls this move "bypassing federalism." Bypassing involves the use of existing jurisdictional authority to work de facto rather than de jure reallocations of power. The article explores agency bypassing through the lens of the Federal Energy Regulatory Commission’s (FERC’s) promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or "negawatts," back to the electrical grid. FERC, eager to promote demand-side management programs but stymied by the jurisdictional limitations in the Federal Power Act of 1935, recently adopted a strategy that bypasses these federalism boundaries by setting up demand response programs in wholesale markets (which are under its control) to parallel state and local programs. Although the strategy has boosted program participation, the article ultimately concludes that bypassing is an insalubrious administrative innovation. While it allows agencies to further national objectives without challenging jurisdictional boundaries head on, the strategy has significant downsides. First, statutory constraints may limit an agency’s options in a way that results in the promotion of second-best over first-best policies. Second, even de facto jurisdictional adjustments raise federalism questions that we might prefer be addressed through the legislative process. Finally, by making a dysfunctional statutory scheme workable, bypassing threatens to delay legislative solutions.
{"title":"Bypassing Federalism and the Administrative Law of Negawatts","authors":"Sharon B. Jacobs","doi":"10.2139/SSRN.2406684","DOIUrl":"https://doi.org/10.2139/SSRN.2406684","url":null,"abstract":"Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. The article calls this move \"bypassing federalism.\" Bypassing involves the use of existing jurisdictional authority to work de facto rather than de jure reallocations of power. The article explores agency bypassing through the lens of the Federal Energy Regulatory Commission’s (FERC’s) promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or \"negawatts,\" back to the electrical grid. FERC, eager to promote demand-side management programs but stymied by the jurisdictional limitations in the Federal Power Act of 1935, recently adopted a strategy that bypasses these federalism boundaries by setting up demand response programs in wholesale markets (which are under its control) to parallel state and local programs. Although the strategy has boosted program participation, the article ultimately concludes that bypassing is an insalubrious administrative innovation. While it allows agencies to further national objectives without challenging jurisdictional boundaries head on, the strategy has significant downsides. First, statutory constraints may limit an agency’s options in a way that results in the promotion of second-best over first-best policies. Second, even de facto jurisdictional adjustments raise federalism questions that we might prefer be addressed through the legislative process. Finally, by making a dysfunctional statutory scheme workable, bypassing threatens to delay legislative solutions.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"68 1","pages":"885"},"PeriodicalIF":1.3,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185699","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 ever-expanding reach of trademark law and the narrowing strictures of trademark fair use doctrine demand new ways of thinking about defenses in artistic use cases. The present defenses of First Amendment free speech and fair use, as interpreted by courts, acknowledge just two types of expressive use as “fair”: those that target or comment upon the trademarked work itself, and/or those that somehow “transform” the original. Moreover, defending a claim of infringement — even if the use is ultimately found to be protected — is lengthy, fact-intensive, and, above all, expensive, creating a chilling effect on speech. This Article makes a plea for increasing the use of genericide or genericness defenses in expressive use cases. That is, a defendant would argue that the formerly-protectable mark has become generic in a specific market or industry as signifying not the source of the product but a category or genus of product — for example, that Cristal has become, in the rap industry, generic for champagne. Rather than focusing on arguments of transformativeness in the hopes of winning a fair use defense, artists should emphasize that they did NOT use the work as a means of targeting the work itself — that is, anti-transformativeness. Not only does this defense have the advantage of invalidating a trademark once and for all within a specific industry, thus freeing up the mark for all to use, but the mere threat of having one’s mark be found generic also serves as a deterrent to overzealous trademark owners, who may think twice before pursuing blatantly protected uses of their marks. Furthermore, the more we focus on a secondary use’s “transformativeness” or the original mark’s uniqueness, the less fair other types of artistic use which do not recognize a unique original nor the ability of art to transform — for example, satire, pastiche, and appropriation — become. Conversely, the more we focus on the genericity of a mark, the more likely the mark will in fact be deemed generic, as courts often look to expressive uses to determine if a mark has undergone genericide. But our present focus on fitting every expressive use into the fair use defense does art a disservice, by recognizing only one type of expressive use — parody — as “fair.”
{"title":"Against Fair Use: The Case for a Genericness Defense in Expressive Trademark Uses","authors":"Xiyin Tang","doi":"10.2139/SSRN.2551268","DOIUrl":"https://doi.org/10.2139/SSRN.2551268","url":null,"abstract":"The ever-expanding reach of trademark law and the narrowing strictures of trademark fair use doctrine demand new ways of thinking about defenses in artistic use cases. The present defenses of First Amendment free speech and fair use, as interpreted by courts, acknowledge just two types of expressive use as “fair”: those that target or comment upon the trademarked work itself, and/or those that somehow “transform” the original. Moreover, defending a claim of infringement — even if the use is ultimately found to be protected — is lengthy, fact-intensive, and, above all, expensive, creating a chilling effect on speech. This Article makes a plea for increasing the use of genericide or genericness defenses in expressive use cases. That is, a defendant would argue that the formerly-protectable mark has become generic in a specific market or industry as signifying not the source of the product but a category or genus of product — for example, that Cristal has become, in the rap industry, generic for champagne. Rather than focusing on arguments of transformativeness in the hopes of winning a fair use defense, artists should emphasize that they did NOT use the work as a means of targeting the work itself — that is, anti-transformativeness. Not only does this defense have the advantage of invalidating a trademark once and for all within a specific industry, thus freeing up the mark for all to use, but the mere threat of having one’s mark be found generic also serves as a deterrent to overzealous trademark owners, who may think twice before pursuing blatantly protected uses of their marks. Furthermore, the more we focus on a secondary use’s “transformativeness” or the original mark’s uniqueness, the less fair other types of artistic use which do not recognize a unique original nor the ability of art to transform — for example, satire, pastiche, and appropriation — become. Conversely, the more we focus on the genericity of a mark, the more likely the mark will in fact be deemed generic, as courts often look to expressive uses to determine if a mark has undergone genericide. But our present focus on fitting every expressive use into the fair use defense does art a disservice, by recognizing only one type of expressive use — parody — as “fair.”","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"101 1","pages":"2021"},"PeriodicalIF":1.3,"publicationDate":"2015-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68200550","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}
Pub Date : 2015-01-16DOI: 10.1093/acprof:oso/9780199358212.003.0002
Nathan B. Oman
This Essay has three goals. The first is to provide a basic narrative of postwar Mormon expansion, identifying the basic periods and major developments. The second is to summarize the main legal issues provoked by this expansion. The third goal is to advance an argument about the relationship between this legal experience and the development of Mormon discourse in the last half of the 20th century. As the Church expanded into new regions of the globe, it confronted non-American legal systems. This placed pressure on the Church and affected the development of Mormon discourse in the last half of the 20th century. In particular, international legal challenges created incentives that tended to moderate Mormon theologies of the state. By the turn of the 21st century, the dominant theology of the state in Mormon discourse was quietist and non-confrontational, a marked contrast from the theodemocratic ambitions of the 19th century or the Cold War apocalypticism popular among many Mormons in the middle of the 20th century. Just as law proved decisive in the development of Mormon belief and practice in the 19th century — particularly Mormon doctrines surrounding plural marriage — in the 20th century, law has again exerted its influence on Mormon teachings.
{"title":"International Legal Experience and the Mormon Theology of the State, 1945-2012","authors":"Nathan B. Oman","doi":"10.1093/acprof:oso/9780199358212.003.0002","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199358212.003.0002","url":null,"abstract":"This Essay has three goals. The first is to provide a basic narrative of postwar Mormon expansion, identifying the basic periods and major developments. The second is to summarize the main legal issues provoked by this expansion. The third goal is to advance an argument about the relationship between this legal experience and the development of Mormon discourse in the last half of the 20th century. As the Church expanded into new regions of the globe, it confronted non-American legal systems. This placed pressure on the Church and affected the development of Mormon discourse in the last half of the 20th century. In particular, international legal challenges created incentives that tended to moderate Mormon theologies of the state. By the turn of the 21st century, the dominant theology of the state in Mormon discourse was quietist and non-confrontational, a marked contrast from the theodemocratic ambitions of the 19th century or the Cold War apocalypticism popular among many Mormons in the middle of the 20th century. Just as law proved decisive in the development of Mormon belief and practice in the 19th century — particularly Mormon doctrines surrounding plural marriage — in the 20th century, law has again exerted its influence on Mormon teachings.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"100 1","pages":"715"},"PeriodicalIF":1.3,"publicationDate":"2015-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60649799","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 rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (1) synthetic biology organisms can evolve; (2) traditional risk structures do not apply; and (3) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. This Article recommends instead a selection of “soft law” alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps in a manner that allows this promising technology to develop as rapidly as possible, while still adequately guarding against risks to human health and the environment.
{"title":"The Living Regulatory Challenges of Synthetic Biology","authors":"Gregory N. Mandel, G. Marchant","doi":"10.2139/SSRN.2410179","DOIUrl":"https://doi.org/10.2139/SSRN.2410179","url":null,"abstract":"The rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (1) synthetic biology organisms can evolve; (2) traditional risk structures do not apply; and (3) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. This Article recommends instead a selection of “soft law” alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps in a manner that allows this promising technology to develop as rapidly as possible, while still adequately guarding against risks to human health and the environment.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"100 1","pages":"155-200"},"PeriodicalIF":1.3,"publicationDate":"2014-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2410179","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68187327","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}
INTRODUCTIONThroughout the twentieth century, the United States Supreme Court addressed questions regarding the Sixth Amendment right to counsel. Beginning in 1963 with the watershed decision of Gideon v. Wainwright,1 right to counsel jurisprudence has developed and evolved into an interestingly complicated body of law. Initially, Gideon was hailed as a victory for human-rights advocates and promised a hopeful change in the administration of criminal justice.Today, Gideon's legacy faces new challenges. With indigent defense declared "shamefully inadequate" by the American Bar Association ("ABA") and the American brand of justice considered "'a system of pleas,'"2 the Supreme Court has grappled with the jurisprudential reach of Gideon. In the plea-bargaining trilogy-Padilla v. Kentucky,3 Missouri v. Frye,4 and Lafler v. Cooper5-the Court wrestled with a number of questions concerning the right to effective assistance of counsel in the plea-bargaining context. While these decisions appear to comport with the principles espoused in Gideon, a closer look reveals that the plea-bargaining trilogy will likely suffer a fate similar to Gideon: problems in implementation and enforcement.This Essay argues that the principles espoused in Padilla, Frye, and Lafler are a natural extension of the modern understanding of Gideon. However, as in Gideon, the Court declined to provide guidance on implementation and enforcement of these plea-bargaining principles. Absent such guidance, the constitutional protections advanced in the plea-bargaining cases will probably not be realized.Part I of this Essay discusses the modern understanding of Gideon, particularly in the plea-bargaining context, thereby providing a basis on which to evaluate the principles announced in Padilla, Frye, and Lafler. Part II offers an overview of the current state of criminal justice in America-the context underlying the plea-bargaining trilogy. Focusing on indigent defense, plea-bargaining, and mass incarceration, this Part presents a brief synopsis of the problems in the criminal-justice system. Part III provides a summary of the plea-bargaining trilogy highlighting the most important aspects of each case. Part IV analyzes the ways in which the plea-bargaining trilogy jurisprudentially comports with Gideon's legacy. This Part also argues that the implementation of the principles announced in these cases will suffer from a distorted application as history demonstrates occurred with Gideon. Part V concludes the Essay with a brief summary.I. THE RIGHT TO COUNSELThe right to counsel and specifically, indigent defense, has long been accepted as an integral piece of federal criminal prosecutions. However, at the beginning of the twentieth century, it was far from clear whether the same understanding of the right to counsel was recognized in the states. A large part of the jurisprudence that courts developed in this area addressed the constitutional dimensions of this right as well as state respo
整个二十世纪，美国最高法院都在处理有关宪法第六修正案规定的律师权利的问题。从1963年吉迪恩诉温赖特案(Gideon v. Wainwright)的分水岭判决开始，获得律师权利的法理发展并演变成一个有趣而复杂的法律体系。起初，吉迪恩被称赞为人权倡导者的胜利，并承诺在刑事司法管理方面带来有希望的改变。今天，吉迪恩的遗产面临着新的挑战。由于美国律师协会(American Bar Association，简称“ABA”)宣称辩护不足“可耻地不足”，而美国司法被认为是“一种申诉制度”，最高法院一直在努力解决吉迪恩案的法理影响。在辩诉交易三部曲中——帕迪拉诉肯塔基案、密苏里诉弗莱案、拉弗勒诉库珀案和拉弗勒诉库珀案——法院纠结于辩诉交易背景下律师有效协助权的若干问题。虽然这些决定似乎符合《吉迪恩》中所倡导的原则，但仔细观察就会发现，辩诉交易三部曲可能会遭遇与《吉迪恩》类似的命运:在实施和执行方面存在问题。本文认为帕迪拉、弗莱和拉弗勒所信奉的原则是对吉迪恩的现代理解的自然延伸。然而，与吉迪恩案一样，法院拒绝就这些辩诉交易原则的实施和执行提供指导。如果没有这样的指导，在辩诉交易案件中提出的宪法保护可能无法实现。本文第一部分讨论了对吉迪恩的现代理解，特别是在辩诉交易的背景下，从而为评估帕迪拉、弗莱和拉弗勒案中宣布的原则提供了一个基础。第二部分概述了美国刑事司法的现状——辩诉交易三部曲的背景。本部分从辩护不足、辩诉交易和大规模监禁三个方面对刑事司法制度中存在的问题进行了简要概述。第三部分概述了辩诉交易三部曲，突出了每个案件的最重要方面。第四部分分析了辩诉交易三部曲在法律上与吉迪恩的遗产相吻合的方式。这一部分还认为，在这些案件中宣布的原则的执行将受到歪曲的应用，正如历史在吉迪恩身上所证明的那样。第五部分对文章进行了总结。长期以来，获得律师的权利，特别是缺乏辩护的权利，一直被认为是联邦刑事起诉的一个组成部分。然而，在二十世纪初，尚不清楚各州是否承认对律师权利的同样理解。法院在这一领域发展的大部分法理学论述了这一权利的宪法层面，以及承认法院宣布的必要性的国家责任。本部分将讨论宪法辩护权的发展，并介绍辩护权在辩诉交易中的运用。美国最高法院以宪法为由要求各州为贫困被告提供律师的第一起案件是1932年的鲍威尔诉阿拉巴马州案。法院认为，在死刑案件中，“被告无法聘请律师，并且由于无知、弱智、文盲等原因无法充分为自己辩护”的情况下，初审法院有责任指派律师。基于公正和公平的原则，鲍威尔的意见得出结论认为，获得律师的权利在宪法上具有“基本性质”，类似于言论自由和出版自由这一“基本特征”将律师的权利置于第十四条修正案的正当程序条款所保障的保护范围内，因此需要各州遵守。…
{"title":"Right to Counsel and Plea Bargaining: Gideon's Legacy Continues","authors":"Lahny R. Silva","doi":"10.2139/SSRN.2773810","DOIUrl":"https://doi.org/10.2139/SSRN.2773810","url":null,"abstract":"INTRODUCTIONThroughout the twentieth century, the United States Supreme Court addressed questions regarding the Sixth Amendment right to counsel. Beginning in 1963 with the watershed decision of Gideon v. Wainwright,1 right to counsel jurisprudence has developed and evolved into an interestingly complicated body of law. Initially, Gideon was hailed as a victory for human-rights advocates and promised a hopeful change in the administration of criminal justice.Today, Gideon's legacy faces new challenges. With indigent defense declared \"shamefully inadequate\" by the American Bar Association (\"ABA\") and the American brand of justice considered \"'a system of pleas,'\"2 the Supreme Court has grappled with the jurisprudential reach of Gideon. In the plea-bargaining trilogy-Padilla v. Kentucky,3 Missouri v. Frye,4 and Lafler v. Cooper5-the Court wrestled with a number of questions concerning the right to effective assistance of counsel in the plea-bargaining context. While these decisions appear to comport with the principles espoused in Gideon, a closer look reveals that the plea-bargaining trilogy will likely suffer a fate similar to Gideon: problems in implementation and enforcement.This Essay argues that the principles espoused in Padilla, Frye, and Lafler are a natural extension of the modern understanding of Gideon. However, as in Gideon, the Court declined to provide guidance on implementation and enforcement of these plea-bargaining principles. Absent such guidance, the constitutional protections advanced in the plea-bargaining cases will probably not be realized.Part I of this Essay discusses the modern understanding of Gideon, particularly in the plea-bargaining context, thereby providing a basis on which to evaluate the principles announced in Padilla, Frye, and Lafler. Part II offers an overview of the current state of criminal justice in America-the context underlying the plea-bargaining trilogy. Focusing on indigent defense, plea-bargaining, and mass incarceration, this Part presents a brief synopsis of the problems in the criminal-justice system. Part III provides a summary of the plea-bargaining trilogy highlighting the most important aspects of each case. Part IV analyzes the ways in which the plea-bargaining trilogy jurisprudentially comports with Gideon's legacy. This Part also argues that the implementation of the principles announced in these cases will suffer from a distorted application as history demonstrates occurred with Gideon. Part V concludes the Essay with a brief summary.I. THE RIGHT TO COUNSELThe right to counsel and specifically, indigent defense, has long been accepted as an integral piece of federal criminal prosecutions. However, at the beginning of the twentieth century, it was far from clear whether the same understanding of the right to counsel was recognized in the states. A large part of the jurisprudence that courts developed in this area addressed the constitutional dimensions of this right as well as state respo","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"99 1","pages":"2219"},"PeriodicalIF":1.3,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68310351","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 Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to first understand how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this article we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. We outline three paths for the future of voting rights policy: rebuilding a new consensus over the racial discrimination model; forging a new consensus over what we call an autonomy model; or reconceiving voting rights in universal terms.
美国历史上最成功的民权法案——《投票权法案》(Voting Rights Act)正在消亡。在最近的谢尔比县判决中，美国最高法院表示，长期以来被视为最初颁布的《投票法》基础的反歧视模式，不再是理解今天投票权问题的最佳方式。投票权法律和政策正处于转型的关键时刻。很可能的情况是，我们曾经知道的超级法规VRA已经不复存在，而且永远不会回来。如果是这样，我们需要弄清楚，如果有的话，什么可以，将会，或者应该取代它。但在弄清楚下一步该怎么走之前，我们需要首先了解我们是如何到达VRA解体的那一刻的，以免重复不久以前的错误。在本文中，我们认为投票法正在消亡，因为关于投票中存在和持续存在种族歧视的共识已经消失。我们为投票权政策的未来勾勒出三条路径:在种族歧视模式上重建新的共识;就我们所说的自治模式达成新的共识;或者以普遍的方式重新考虑投票权。
{"title":"The Voting Rights Act in Winter: The Death of a Superstatute","authors":"G. Charles, Luis E. Fuentes-Rohwer","doi":"10.2139/SSRN.2377470","DOIUrl":"https://doi.org/10.2139/SSRN.2377470","url":null,"abstract":"The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to first understand how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this article we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. We outline three paths for the future of voting rights policy: rebuilding a new consensus over the racial discrimination model; forging a new consensus over what we call an autonomy model; or reconceiving voting rights in universal terms.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"100 1","pages":"1389"},"PeriodicalIF":1.3,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68157387","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}
One of the most serious pathologies of the modern class action is the danger of serial attempts to certify a class action. Because the bar of res judicata traditionally applies solely to the parties who had their day in court, it is easy for class action attorneys to seek certification for a never-ending parade of identical class actions, simply by changing the named plaintiffs, who, for purposes of certification, are completely fungible. As a result, the potential for redundancy, inefficiency and harassment of potential class defendants is all but unstoppable, effectively forcing defendants to settle class actions which may well fail on the merits. In Smith v. Bayer, the Supreme Court did little or nothing to ameliorate the problem. Instead, it simply assumed that the enactment of the Class Action Fairness Act (CAFA) will obviate the problem by authorizing removal to federal court of class actions brought in state court. But the Court grossly overstated the impact of CAFA on this serious problem. In this Article, we propose a solution to the problem of serial certification attempts by reconsidering the underlying DNA of the modern class action. In so doing, we explain the important differences between the nature of the attorney-client relationship in traditional litigation on the one hand and in the modern class action, on the other. These factors lead us to re-characterize the modern class action as a form of “guardianship” litigation model. In effect, the class attorneys operate as the litigant, acting on behalf of the interests of the absent class members. The modern class action, then, represents a form of what can be labeled “capitalistic socialism” — class attorneys work to redistribute wealth to those whom they represent, out of what are often purely capitalistic motivations. Once one accepts the guardianship model as the proper description of the modern class action, it logically follows that the class attorneys, as well as the named plaintiffs, should be treated as real parties in interest for purposes of res judicata. Admittedly, such an alteration represents a radical shift in res judicata theory, but it does so in order to bring modern res judicata doctrine in line with the innovative nature of the modern class action. As a result of our proposal, class attorneys will not be able to engage in harassment simply by changing fungible named plaintiffs. Instead, class attorneys, like any real party in interest, will have only one opportunity to seek class certification; a denial of certification will constitute direct estoppel barring the class attorneys from ever seeking re-certification under an identical standard.
{"title":"Avoiding Death by a Thousand Cuts: The Relitigation of Class Certification and the Realities of the Modern Class Action","authors":"Martin H. Redish, Megan B. Kiernan","doi":"10.2139/SSRN.2307683","DOIUrl":"https://doi.org/10.2139/SSRN.2307683","url":null,"abstract":"One of the most serious pathologies of the modern class action is the danger of serial attempts to certify a class action. Because the bar of res judicata traditionally applies solely to the parties who had their day in court, it is easy for class action attorneys to seek certification for a never-ending parade of identical class actions, simply by changing the named plaintiffs, who, for purposes of certification, are completely fungible. As a result, the potential for redundancy, inefficiency and harassment of potential class defendants is all but unstoppable, effectively forcing defendants to settle class actions which may well fail on the merits. In Smith v. Bayer, the Supreme Court did little or nothing to ameliorate the problem. Instead, it simply assumed that the enactment of the Class Action Fairness Act (CAFA) will obviate the problem by authorizing removal to federal court of class actions brought in state court. But the Court grossly overstated the impact of CAFA on this serious problem. In this Article, we propose a solution to the problem of serial certification attempts by reconsidering the underlying DNA of the modern class action. In so doing, we explain the important differences between the nature of the attorney-client relationship in traditional litigation on the one hand and in the modern class action, on the other. These factors lead us to re-characterize the modern class action as a form of “guardianship” litigation model. In effect, the class attorneys operate as the litigant, acting on behalf of the interests of the absent class members. The modern class action, then, represents a form of what can be labeled “capitalistic socialism” — class attorneys work to redistribute wealth to those whom they represent, out of what are often purely capitalistic motivations. Once one accepts the guardianship model as the proper description of the modern class action, it logically follows that the class attorneys, as well as the named plaintiffs, should be treated as real parties in interest for purposes of res judicata. Admittedly, such an alteration represents a radical shift in res judicata theory, but it does so in order to bring modern res judicata doctrine in line with the innovative nature of the modern class action. As a result of our proposal, class attorneys will not be able to engage in harassment simply by changing fungible named plaintiffs. Instead, class attorneys, like any real party in interest, will have only one opportunity to seek class certification; a denial of certification will constitute direct estoppel barring the class attorneys from ever seeking re-certification under an identical standard.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"99 1","pages":"1659-1690"},"PeriodicalIF":1.3,"publicationDate":"2013-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68084320","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}
This article addresses a longstanding concern in American criminal justice: the risk that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature. Dirty Silver Platters offers the first comprehensive examination of this phenomenon and its many negative consequences, highlighting the need for more exacting judicial scrutiny of intergovernmental investigations. Without such scrutiny, modern silver platter doctrine, which allows admission of evidence illegally secured by non-forum agents found to be acting independently of agents of the forum court, is permitted to reign supreme. The article therefore seeks to pick up where mid-twentieth century courts left off, providing a reinvigorated framework to smoke out forum government agent involvement in investigations and condemn the legal evasion that it allows. In doing so, the article shines a spotlight on a critically important matter, implicating core rule of law and governmental transparency values, which will assume ever-greater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.
{"title":"Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality","authors":"Wayne A. Logan","doi":"10.2139/SSRN.2243584","DOIUrl":"https://doi.org/10.2139/SSRN.2243584","url":null,"abstract":"This article addresses a longstanding concern in American criminal justice: the risk that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature. Dirty Silver Platters offers the first comprehensive examination of this phenomenon and its many negative consequences, highlighting the need for more exacting judicial scrutiny of intergovernmental investigations. Without such scrutiny, modern silver platter doctrine, which allows admission of evidence illegally secured by non-forum agents found to be acting independently of agents of the forum court, is permitted to reign supreme. The article therefore seeks to pick up where mid-twentieth century courts left off, providing a reinvigorated framework to smoke out forum government agent involvement in investigations and condemn the legal evasion that it allows. In doing so, the article shines a spotlight on a critically important matter, implicating core rule of law and governmental transparency values, which will assume ever-greater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"99 1","pages":"293"},"PeriodicalIF":1.3,"publicationDate":"2013-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68024354","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}
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