The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection clauses. Many scholars, however, have worried that the rule of law requirement that the laws be general — ordinarily interpreted as command of “formal equality” — forbids states from pursuing genuine (“substantive”) equality, particularly between groups divided by lines of social hierarchy. They have similar worries about the Equal Protection clause. In this paper, I aim to put those worries to rest. First, I show that the formal equality interpretation of the rule of law (and of equal protection) is logically incoherent. Then, drawing on a novel account of how to determine the expressive meaning of a law, I show that not only are the rule of law and equal protection compatible with egalitarian justice, but that they positively demand at least a basic level of egalitarian justice, in the form of the command to eliminate social hierarchies embedded in the law. From this, I conclude that the legal ideal of the rule of law contributes to, rather than threatens, critical projects aimed at the elimination of social hierarchy. Political radicals, associated in the law with, inter alia, Marxism, feminism, critical legal studies, critical race studies, and other intellectual movements, have long been skeptical of the legal ideals traditionally associated with liberalism. This paper suggests that they should learn to love the rule of law.
{"title":"Equal Law in an Unequal World","authors":"Paul Gowder","doi":"10.2139/SSRN.2203735","DOIUrl":"https://doi.org/10.2139/SSRN.2203735","url":null,"abstract":"The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection clauses. Many scholars, however, have worried that the rule of law requirement that the laws be general — ordinarily interpreted as command of “formal equality” — forbids states from pursuing genuine (“substantive”) equality, particularly between groups divided by lines of social hierarchy. They have similar worries about the Equal Protection clause. In this paper, I aim to put those worries to rest. First, I show that the formal equality interpretation of the rule of law (and of equal protection) is logically incoherent. Then, drawing on a novel account of how to determine the expressive meaning of a law, I show that not only are the rule of law and equal protection compatible with egalitarian justice, but that they positively demand at least a basic level of egalitarian justice, in the form of the command to eliminate social hierarchies embedded in the law. From this, I conclude that the legal ideal of the rule of law contributes to, rather than threatens, critical projects aimed at the elimination of social hierarchy. Political radicals, associated in the law with, inter alia, Marxism, feminism, critical legal studies, critical race studies, and other intellectual movements, have long been skeptical of the legal ideals traditionally associated with liberalism. This paper suggests that they should learn to love the rule of law.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"99 1","pages":"1021"},"PeriodicalIF":1.3,"publicationDate":"2013-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67984703","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}
Elizabeth Laposata, Richard Barnes, Stanton Glantz
The American Law Institute ("ALI") is a prestigious and influential organization that creates treatises on the current state of the law, including "Restatements" of case law that guide judicial decisions and legislation. This paper uses previously secret tobacco industry documents made available as the result of state and federal litigation against the industry to describe how the tobacco companies, acting both indirectly through their trade organization, the Tobacco Institute, and directly, using influential lawyers, quietly influenced the ALI's writing of the Restatements. The tobacco industry's ease of access to the ALI calls into question the Institute's independence, the preparation of major policy documents such as the Restatements, as well as the Institute's ability to monitor and control conflicts of interest. The ALI's conflict of interest policies lag behind comparable organizations such as the National Academy of Sciences and the Institute of Medicine, and are insufficient to protect Institute projects from significant outside influence. Because of the undisclosed influence of the tobacco industry over the ALI, courts and legislatures should not apply the principles embodied in the Restatements in tort cases against the tobacco companies for injuries suffered from tobacco use. Until the ALI implements strong conflict of interest policies to ensure independence from private-interest manipulation, courts and legislatures should not rely on Institute reports and recommendations as neutral scholarly summaries of the law that should guide judicial and legislative decision-making.
美国法学会（American Law Institute，简称 "ALI"）是一个享有盛誉且极具影响力的组织，该组织撰写有关法律现状的论文，包括指导司法判决和立法的判例法 "重述"。本文利用因州和联邦对烟草业的诉讼而公开的烟草业秘密文件，描述了烟草公司如何通过其行业组织烟草协会（Tobacco Institute）间接行事，以及如何利用有影响力的律师直接行事，悄悄地影响 ALI 撰写《重述》。烟草业可以轻易地接触到 ALI，这使人们对该机构的独立性、《重述》等重要政策文件的编写以及该机构监督和控制利益冲突的能力产生了怀疑。ALI 的利益冲突政策落后于国家科学院和医学研究所等同类组织，不足以保护研究所的项目免受重大外部影响。由于烟草业对 ALI 的影响未被披露，法院和立法机构不应将 "重述 "中体现的原则应用于针对烟草公司因使用烟草而造成伤害的侵权案件中。在 ALI 实施强有力的利益冲突政策以确保独立于私人利益操纵之前，法院和立法机构不应依赖研究所的报告和建议，将其作为指导司法和立法决策的中立的法律学术总结。
{"title":"Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflict of Interest Policies.","authors":"Elizabeth Laposata, Richard Barnes, Stanton Glantz","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The American Law Institute (\"ALI\") is a prestigious and influential organization that creates treatises on the current state of the law, including \"Restatements\" of case law that guide judicial decisions and legislation. This paper uses previously secret tobacco industry documents made available as the result of state and federal litigation against the industry to describe how the tobacco companies, acting both indirectly through their trade organization, the Tobacco Institute, and directly, using influential lawyers, quietly influenced the ALI's writing of the Restatements. The tobacco industry's ease of access to the ALI calls into question the Institute's independence, the preparation of major policy documents such as the Restatements, as well as the Institute's ability to monitor and control conflicts of interest. The ALI's conflict of interest policies lag behind comparable organizations such as the National Academy of Sciences and the Institute of Medicine, and are insufficient to protect Institute projects from significant outside influence. Because of the undisclosed influence of the tobacco industry over the ALI, courts and legislatures should not apply the principles embodied in the Restatements in tort cases against the tobacco companies for injuries suffered from tobacco use. Until the ALI implements strong conflict of interest policies to ensure independence from private-interest manipulation, courts and legislatures should not rely on Institute reports and recommendations as neutral scholarly summaries of the law that should guide judicial and legislative decision-making.</p>","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"98 1","pages":"1-68"},"PeriodicalIF":1.3,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3637975/pdf/nihms-419530.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"31397936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.
医疗改革将大量精力投入到重振小型团体健康保险市场上，这些市场为全职雇员少于50人的雇主提供服务。不幸的是，《合理医疗费用法案》(Affordable Care Act)中一些相互交织的条款产生了强大的激励机制，从2014年开始，这些条款往往会破坏这个市场，并在此过程中增加改革的财政成本。首先，以低收入员工为主的小雇主往往会选择退出小团体市场。其次，拥有混合收入雇员的小雇主将有强烈的动机提供既不是技术上“负担得起”的保险，也不是“最低价值”的保险，以便为其低收入雇员在个人市场上保留保费和成本分摊补贴的可用性。第三，拥有低风险员工的小型雇主将有强烈的动机自行投保他们提供的任何团体计划，以避免交叉补贴高风险群体。本文对这些风险进行了综合分析，提出了一些拯救小集团市场的建议。例如，它认为，计划在2014年组织小团体市场的SHOP交易所必须战略性地针对自我保险的弱点，提供简单、无风险的保险选择，方便员工选择。他们还必须积极推销这种保险，因为保险经纪人可能会出于经济动机，向小雇主推销自我保险。此外，州和联邦立法者应该探索各种可能性，使小雇主更有可能提供团体保险，如果他们提供团体保险，通过SHOP交换而不是自我保险计划来实现。本文探讨的可能性包括修改保费和小企业税收抵免的条款，规范止损保险，以及实施各种限制或处罚，旨在防止自我保险和小团体市场之间的动荡。
{"title":"Saving Small Employer Health Insurance","authors":"Amy B. Monahan, D. Schwarcz","doi":"10.2139/SSRN.2138200","DOIUrl":"https://doi.org/10.2139/SSRN.2138200","url":null,"abstract":"Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"98 1","pages":"1935-1989"},"PeriodicalIF":1.3,"publicationDate":"2012-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67939816","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}
"First in, first out" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, "first come, first served" and "first-in-time, first-in-right," have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees’ seniority benefits, mass torts, and military discharge, all the way to social and organizational practices regulated by law, such as organ allocation policies, event ticket sales, and data transfers over the internet. Yet although FIFO is an omnipresent and overarching principle in law, it has never been recognized or analyzed as such in legal literature.The Article aims to fill this surprising theoretical gap. Its purpose and novelty are threefold. First, it constructs an innovative and comprehensive theoretical framework — integrating fairness and efficiency — for assessing FIFO’s role in resource allocation. Second, the Article highlights the prevalence of FIFO in law, by analyzing and critically evaluating its role in a wide array of legal contexts through this theoretical prism. Third, it substantiates a jurisprudentially provocative thesis: while FIFO can be similarly applied in numerous contexts, it has no consistent set of justifications for all applications. Its rationalization in law must be highly varied and context-specific. The Article’s seminal contributions provide a novel and robust foundation for numerous future projects, theoretical and empirical alike.
{"title":"Queues in Law","authors":"R. Perry, Tal Z. Zarsky","doi":"10.2139/SSRN.2147333","DOIUrl":"https://doi.org/10.2139/SSRN.2147333","url":null,"abstract":"\"First in, first out\" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, \"first come, first served\" and \"first-in-time, first-in-right,\" have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees’ seniority benefits, mass torts, and military discharge, all the way to social and organizational practices regulated by law, such as organ allocation policies, event ticket sales, and data transfers over the internet. Yet although FIFO is an omnipresent and overarching principle in law, it has never been recognized or analyzed as such in legal literature.The Article aims to fill this surprising theoretical gap. Its purpose and novelty are threefold. First, it constructs an innovative and comprehensive theoretical framework — integrating fairness and efficiency — for assessing FIFO’s role in resource allocation. Second, the Article highlights the prevalence of FIFO in law, by analyzing and critically evaluating its role in a wide array of legal contexts through this theoretical prism. Third, it substantiates a jurisprudentially provocative thesis: while FIFO can be similarly applied in numerous contexts, it has no consistent set of justifications for all applications. Its rationalization in law must be highly varied and context-specific. The Article’s seminal contributions provide a novel and robust foundation for numerous future projects, theoretical and empirical alike.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"99 1","pages":"1595"},"PeriodicalIF":1.3,"publicationDate":"2012-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67949918","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 paper updates the author's extensive earlier research on Iowa joint tenancies, which was published in the 1960s. The earlier research revealed that, while joint tenancy law had changed very little in the past five hundred years, patterns of joint tenancy usage had expanded greatly, particularly in property holdings by married couples. This paper traces the changes in Iowa joint tenancy law since the 1960s. It posits that, in respect to joint tenancies in real property and tangible personal property, the law has changed very little, except for adoption of an "Intent" analysis to replace the former "Four Unities" test for determining severance issues. Far greater change is observed, however, in the Iowa law governing joint and survivor accounts with financial institutions. With respect to such joint and survivor accounts, the author suggests how the law might still be improved to make such accounts more effective in achieving the goals of the parties who create them.
{"title":"Joint Tenancies in Iowa Today","authors":"N. Hines","doi":"10.2139/SSRN.1991921","DOIUrl":"https://doi.org/10.2139/SSRN.1991921","url":null,"abstract":"This paper updates the author's extensive earlier research on Iowa joint tenancies, which was published in the 1960s. The earlier research revealed that, while joint tenancy law had changed very little in the past five hundred years, patterns of joint tenancy usage had expanded greatly, particularly in property holdings by married couples. This paper traces the changes in Iowa joint tenancy law since the 1960s. It posits that, in respect to joint tenancies in real property and tangible personal property, the law has changed very little, except for adoption of an \"Intent\" analysis to replace the former \"Four Unities\" test for determining severance issues. Far greater change is observed, however, in the Iowa law governing joint and survivor accounts with financial institutions. With respect to such joint and survivor accounts, the author suggests how the law might still be improved to make such accounts more effective in achieving the goals of the parties who create them.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"98 1","pages":"1233"},"PeriodicalIF":1.3,"publicationDate":"2012-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67835897","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}
State and local retirement plans are underfunded by trillions of dollars, at a time when many states are facing decreased revenues and increased social needs. The result is that many states are currently giving active consideration to how best to address the problem of state and local pension plan underfunding given a state’s limited resources. In many states, however, courts have held that the statutes creating state retirement systems create contracts between the state and employee that prohibit the state from making any detrimental changes to the benefits provided to current employees within such systems, even on a prospective basis. This article examines the development of such a rule in California, a state that has been widely influential in this area of law, evidenced by the fact that courts in twelve other states have simply adopted the holdings of the California Supreme Court as their own. This Article illustrates that in holding that benefits not yet earned are contractually protected, California courts have improperly infringed on legislative power and have fashioned a rule inconsistent with both contract and economic theory.
{"title":"Statutes as Contracts? The 'California Rule' and its Impact on Public Pension Reform","authors":"Amy B. Monahan","doi":"10.2139/SSRN.1933887","DOIUrl":"https://doi.org/10.2139/SSRN.1933887","url":null,"abstract":"State and local retirement plans are underfunded by trillions of dollars, at a time when many states are facing decreased revenues and increased social needs. The result is that many states are currently giving active consideration to how best to address the problem of state and local pension plan underfunding given a state’s limited resources. In many states, however, courts have held that the statutes creating state retirement systems create contracts between the state and employee that prohibit the state from making any detrimental changes to the benefits provided to current employees within such systems, even on a prospective basis. This article examines the development of such a rule in California, a state that has been widely influential in this area of law, evidenced by the fact that courts in twelve other states have simply adopted the holdings of the California Supreme Court as their own. This Article illustrates that in holding that benefits not yet earned are contractually protected, California courts have improperly infringed on legislative power and have fashioned a rule inconsistent with both contract and economic theory.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"97 1","pages":"1029-1083"},"PeriodicalIF":1.3,"publicationDate":"2011-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67800666","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 : 2010-03-01DOI: 10.1017/CBO9781139013789.008
A. Estin
This Essay explores a type of legal pluralism found in secular societies, including the United States, in which minority groups adhere to unofficial religious law norms within a larger framework of state family law. Official and unofficial law are sometimes closely interwoven, as with the formalization of marriage, and sometimes stand directly in opposition, as with laws prohibiting the practice of polygamy. In an intermediate position, these societies have seen a complex interaction between secular and religious law in the context of marriage dissolution. The different opportunities presented by each legal system may generate significant strategic behavior by individuals, and these risks have prompted careful collaboration between religious and secular authorities in a number of jurisdictions. In this collaboration, the secular state helps religious communities to define a space and an identity, and simultaneously seeks to establish the basic guarantees of citizenship within the larger society for all group members.
{"title":"Unofficial Family Law","authors":"A. Estin","doi":"10.1017/CBO9781139013789.008","DOIUrl":"https://doi.org/10.1017/CBO9781139013789.008","url":null,"abstract":"This Essay explores a type of legal pluralism found in secular societies, including the United States, in which minority groups adhere to unofficial religious law norms within a larger framework of state family law. Official and unofficial law are sometimes closely interwoven, as with the formalization of marriage, and sometimes stand directly in opposition, as with laws prohibiting the practice of polygamy. In an intermediate position, these societies have seen a complex interaction between secular and religious law in the context of marriage dissolution. The different opportunities presented by each legal system may generate significant strategic behavior by individuals, and these risks have prompted careful collaboration between religious and secular authorities in a number of jurisdictions. In this collaboration, the secular state helps religious communities to define a space and an identity, and simultaneously seeks to establish the basic guarantees of citizenship within the larger society for all group members.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"94 1","pages":"449"},"PeriodicalIF":1.3,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781139013789.008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57105123","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}
John H. Blume, T. Eisenberg, Sheri L. Johnson, V. Hans
This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the result of a change in the Delaware death sentencing scheme from jury to judge sentencing. When that change was implemented, the number of death sentences rose dramatically. Our preliminary findings also reveal a geographic effect. Two thirds of the death sentences were imposed in New Castle County, 29% were imposed in Kent County and only 5% of the death sentences resulted from murders which occurred in Sussex County. Finally, in analyzing the outcomes of the cases in which the defendant was sentenced to death on appeal, we found an overall error rate of 44%.
{"title":"The Death Penalty in Delaware: An Empirical Study","authors":"John H. Blume, T. Eisenberg, Sheri L. Johnson, V. Hans","doi":"10.2139/SSRN.1207882","DOIUrl":"https://doi.org/10.2139/SSRN.1207882","url":null,"abstract":"This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the result of a change in the Delaware death sentencing scheme from jury to judge sentencing. When that change was implemented, the number of death sentences rose dramatically. Our preliminary findings also reveal a geographic effect. Two thirds of the death sentences were imposed in New Castle County, 29% were imposed in Kent County and only 5% of the death sentences resulted from murders which occurred in Sussex County. Finally, in analyzing the outcomes of the cases in which the defendant was sentenced to death on appeal, we found an overall error rate of 44%.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"97 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2008-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68151448","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 debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability under the guise of direct infringement suits. Dinwoodie and Janis's thorough account notwithstanding, it remains the fact that, before the recent spate of Internet-related cases, no court had ever recognized a trademark claim of the sort that trademark holders are now asserting. Trademark infringement suits have always involved allegations of infringement by parties who use marks in connection with the promotion of their own goods and services. The question raised by the trademark use cases, as we view it, is whether courts should countenance a radical departure from that traditional model without specific instruction from Congress. We think they should not. In this paper, we explain the origins of trademark use doctrine in traditional limits on the scope of the trademark right and in the distinction between direct and contributory infringement. We also explain why we cannot simply rely on the likelihood of consumer confusion test to solve the problems the trademark use doctrine addresses, and we examine the difficult problem of defining the scope of the trademark use doctrine.
关于商标使用的争论已经成为知识产权法中的一个热点问题。格雷姆·丁伍迪(Graeme Dinwoodie)和马克·詹尼斯(Mark Janis)在《使用的困惑:商标法中的语境主义》(Confusion over Use: Contextualism In Trademark Law)一书中将其描述为是否以一种新的、意想不到的方式限制商标权的争议。然而，在我们看来，还有另一种更符合历史的方式来构建商标使用辩论:问题是，在没有具体法定授权的情况下，法院是否应该允许商标持有人提出一种新的、前所未有的商标侵权索赔。弹出式广告和关键词广告的案例都是试图在直接侵权诉讼的幌子下强加第三方责任。尽管Dinwoodie和Janis做了详尽的描述，但事实是，在最近大量与互联网相关的案件发生之前，从来没有法院认可过商标持有人现在所主张的那种商标索赔。商标侵权诉讼总是涉及当事人在宣传自己的商品和服务时使用商标的侵权指控。在我们看来，商标使用案例所提出的问题是，法院是否应该在没有国会具体指示的情况下，支持对传统模式的彻底背离。我们认为他们不应该这么做。在本文中，我们从传统的商标权范围限制和直接侵权与共同侵权的区分中解释了商标使用原则的起源。我们还解释了为什么我们不能简单地依靠消费者混淆可能性测试来解决商标使用原则所解决的问题，我们还研究了定义商标使用原则范围的难题。
{"title":"Grounding Trademark Law Through Trademark Use","authors":"Mark A. Lemley, Stacey L. Dogan","doi":"10.31235/osf.io/yn27k","DOIUrl":"https://doi.org/10.31235/osf.io/yn27k","url":null,"abstract":"The debate over trademark use has become a hot-button issue in intellectual property (IP) law. In Confusion over Use: Contextualism in Trademark Law, Graeme Dinwoodie and Mark Janis characterize it as a dispute over whether to limit trademark holder rights in a new and unanticipated way. Yet there is another - in our view more historically accurate - way to frame the trademark use debate: the question is whether courts should, absent specific statutory authorization, allow trademark holders to assert a new and unprecedented form of trademark infringement claim. The pop-up and keyword cases involve attempts to impose third-party liability under the guise of direct infringement suits. Dinwoodie and Janis's thorough account notwithstanding, it remains the fact that, before the recent spate of Internet-related cases, no court had ever recognized a trademark claim of the sort that trademark holders are now asserting. Trademark infringement suits have always involved allegations of infringement by parties who use marks in connection with the promotion of their own goods and services. The question raised by the trademark use cases, as we view it, is whether courts should countenance a radical departure from that traditional model without specific instruction from Congress. We think they should not. In this paper, we explain the origins of trademark use doctrine in traditional limits on the scope of the trademark right and in the distinction between direct and contributory infringement. We also explain why we cannot simply rely on the likelihood of consumer confusion test to solve the problems the trademark use doctrine addresses, and we examine the difficult problem of defining the scope of the trademark use doctrine.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"92 1","pages":"1669"},"PeriodicalIF":1.3,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69653811","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}
Classic accounts of prosecutorial discretion, from Herbert Wechsler through the present day, portray charging discretion as the antithesis of law. Scholars express particular concerns about racial and other nefarious grounds for prosecution, while others worry about the increased range of choices available to prosecutors when criminal codes become bloated with new crimes. The familiar response to this problem features a call for greater external legal regulation. The external limits might come from judges who review prosecutorial charging decisions, or from legislatures reworking the criminal code. These external oversight projects, however, have failed. This article explores some facets of internal regulation - efforts within prosecutors' offices to control and legitimize prosecutorial discretion. Based on remarkably detailed data from New Orleans and observations from several other major cities, we are able to examine the inner working of prosecutors' offices - the black box - to learn about the reasons prosecutors give for their declinations. The long-delayed arrival of the information age to prosecutors' offices allows us to understand more about the internal regulatory forces within those offices. Our thesis is simple but profound: the internal office policies of thoughtful chief prosecutors can produce the predictable choices, respectful of legal constraints, that lawyers expect from traditional legal regulation. The reasons prosecutors give for their charging decisions show the influence of substantive and procedural legal doctrines and the policy priorities of supervisors - all sources that one would expect to dominate in a system that respects the rule of law. Moreover, these reasons show prosecutors responding to social norms, living up to group expectations about what it means to be a prosecutor in that particular office. The internal norms of prosecutors differ from other social norms recognized and studied by legal scholars because they grow and operate within a government organization. Norms within government organizations are far more susceptible to design changes than social norms in public and private groups. The key virtue of social norms within a prosecutor's office is transparency. Internal regulations deserve respect when they expose the prosecutor's black box to scrutiny and accountability.
{"title":"The black box","authors":"M. Miller, R. Wright","doi":"10.2139/ssrn.916061","DOIUrl":"https://doi.org/10.2139/ssrn.916061","url":null,"abstract":"Classic accounts of prosecutorial discretion, from Herbert Wechsler through the present day, portray charging discretion as the antithesis of law. Scholars express particular concerns about racial and other nefarious grounds for prosecution, while others worry about the increased range of choices available to prosecutors when criminal codes become bloated with new crimes. The familiar response to this problem features a call for greater external legal regulation. The external limits might come from judges who review prosecutorial charging decisions, or from legislatures reworking the criminal code. These external oversight projects, however, have failed. This article explores some facets of internal regulation - efforts within prosecutors' offices to control and legitimize prosecutorial discretion. Based on remarkably detailed data from New Orleans and observations from several other major cities, we are able to examine the inner working of prosecutors' offices - the black box - to learn about the reasons prosecutors give for their declinations. The long-delayed arrival of the information age to prosecutors' offices allows us to understand more about the internal regulatory forces within those offices. Our thesis is simple but profound: the internal office policies of thoughtful chief prosecutors can produce the predictable choices, respectful of legal constraints, that lawyers expect from traditional legal regulation. The reasons prosecutors give for their charging decisions show the influence of substantive and procedural legal doctrines and the policy priorities of supervisors - all sources that one would expect to dominate in a system that respects the rule of law. Moreover, these reasons show prosecutors responding to social norms, living up to group expectations about what it means to be a prosecutor in that particular office. The internal norms of prosecutors differ from other social norms recognized and studied by legal scholars because they grow and operate within a government organization. Norms within government organizations are far more susceptible to design changes than social norms in public and private groups. The key virtue of social norms within a prosecutor's office is transparency. Internal regulations deserve respect when they expose the prosecutor's black box to scrutiny and accountability.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"94 1","pages":"125-196"},"PeriodicalIF":1.3,"publicationDate":"2006-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67878204","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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