This Article assesses the constitutional validity of executive privilege, focusing solely on executive privilege disputes between Congress and the President or other high-ranking executive branch officers. This Article defines such conflicts broadly to include clashes over information sought directly by Congress (or by a committee or subcommittee thereof), clashes over information sought by individuals through congressionally drawn public access statutes, and clashes over information sought by congressionally created agencies.
{"title":"Secrecy and Separated Powers: Executive Privilege Revisited","authors":"Heidi Kitrosser","doi":"10.2139/SSRN.874874","DOIUrl":"https://doi.org/10.2139/SSRN.874874","url":null,"abstract":"This Article assesses the constitutional validity of executive privilege, focusing solely on executive privilege disputes between Congress and the President or other high-ranking executive branch officers. This Article defines such conflicts broadly to include clashes over information sought directly by Congress (or by a committee or subcommittee thereof), clashes over information sought by individuals through congressionally drawn public access statutes, and clashes over information sought by congressionally created agencies.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"92 1","pages":"489-543"},"PeriodicalIF":1.3,"publicationDate":"2006-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67850120","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}
Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorneys' fees and also to the uncertainty and unpredictability of fair use doctrine itself. This article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in precisely those settings in which economic analysis suggests that the fair use doctrine should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk-averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the individual user's use, the asymmetry between individual user gain and copyright owner loss may result in systematic copyright overenforcement; put another way, the fair use doctrine suffers from an "appropriability" problem similar to that which is often cited as a justification for copyright protection itself. The article then offers some observations on the likely effectiveness of six different types of fair use reforms.
{"title":"Fair Use and Copyright Overenforcement","authors":"Thomas F. Cotter","doi":"10.2139/SSRN.951839","DOIUrl":"https://doi.org/10.2139/SSRN.951839","url":null,"abstract":"Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorneys' fees and also to the uncertainty and unpredictability of fair use doctrine itself. This article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in precisely those settings in which economic analysis suggests that the fair use doctrine should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk-averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the individual user's use, the asymmetry between individual user gain and copyright owner loss may result in systematic copyright overenforcement; put another way, the fair use doctrine suffers from an \"appropriability\" problem similar to that which is often cited as a justification for copyright protection itself. The article then offers some observations on the likely effectiveness of six different types of fair use reforms.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"93 1","pages":"1271-1318"},"PeriodicalIF":1.3,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.951839","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67906666","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}
{"title":"The search for a cure: combating the problem of conflicts of interest that currently plagues biomedical research.","authors":"Joseph B Clamon","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"89 1","pages":"235-71"},"PeriodicalIF":1.3,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24975947","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}
{"title":"Disposition of cryopreserved preembryos after divorce.","authors":"Karissa Hostrup Windsor","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"88 4","pages":"1001-34"},"PeriodicalIF":1.3,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579583","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}
Out of the Human Genome Project and automated sequencing technology has arisen a controversy over the attempt to obtain patents on fragments of functional genes, known as expressed sequence tags (EST), and the genes themselves. In addition to legal and academic debate over the patent ability of expressed sequence tags, the issue of property rights in these gene fragments raises questions about economics and social policy. The article offers a solution to this debate by proposing a registration stem that, first, avoids the costs of patent prosecution and examination; second, has none of the adverse economic consequences of patenting expressed sequence tags; and, third, recognizes that expressed sequence tags have some value. The article summarizes the science, explains the controversy over ESTs, and outlines a trio of existing models for access to EST sequences. The article continues by analyzing issues of patent law in relation to ESTs and introduces property and economic issues. The article then proposes two possible solutions: limiting to ten the number of ESTs per patent application, as is currently the plan and policy of the PTO; and issuing short-term (ten-year) patents on ESTs alone. This leads to the author explaining, justifying, and defending a registration system that gives less robust property rights than the standard twenty-year patent. Finally, the author addresses some of the philosophical issues pertaining to property rights in genetic material.
{"title":"Intellectual property rights in genes and gene fragments: a registration solution for expressed sequence tags.","authors":"M. A. Holman, S. Munzer","doi":"10.2139/SSRN.382566","DOIUrl":"https://doi.org/10.2139/SSRN.382566","url":null,"abstract":"Out of the Human Genome Project and automated sequencing technology has arisen a controversy over the attempt to obtain patents on fragments of functional genes, known as expressed sequence tags (EST), and the genes themselves. In addition to legal and academic debate over the patent ability of expressed sequence tags, the issue of property rights in these gene fragments raises questions about economics and social policy. The article offers a solution to this debate by proposing a registration stem that, first, avoids the costs of patent prosecution and examination; second, has none of the adverse economic consequences of patenting expressed sequence tags; and, third, recognizes that expressed sequence tags have some value. The article summarizes the science, explains the controversy over ESTs, and outlines a trio of existing models for access to EST sequences. The article continues by analyzing issues of patent law in relation to ESTs and introduces property and economic issues. The article then proposes two possible solutions: limiting to ten the number of ESTs per patent application, as is currently the plan and policy of the PTO; and issuing short-term (ten-year) patents on ESTs alone. This leads to the author explaining, justifying, and defending a registration system that gives less robust property rights than the standard twenty-year patent. Finally, the author addresses some of the philosophical issues pertaining to property rights in genetic material.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"85 3 1","pages":"735-848"},"PeriodicalIF":1.3,"publicationDate":"2003-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.382566","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68651768","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}
Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty that may cast doubt on the premise that law should always strive to be as predictable as possible.
{"title":"The Virtues of Uncertainty in Law: An Experimental Approach","authors":"T. Baker, Alon Harel, Tamar Kugler","doi":"10.2139/SSRN.380302","DOIUrl":"https://doi.org/10.2139/SSRN.380302","url":null,"abstract":"Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty that may cast doubt on the premise that law should always strive to be as predictable as possible.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"89 1","pages":"443-494"},"PeriodicalIF":1.3,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68647387","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}
In a democracy, the citizens are the only legitimate sources of law. It follows inexorably that corporations, not being citizens, cannot be legitimate political actors. The problem of corporate speech is further complicated by the internal rules of corporate governance. When corporations "speak," they do so by decision of their managers, who are constrained by fiduciary duties and economic pressure of the stock market to advocate for a single value: maximum profit for shares. In a multifaceted culture of manifold and various values, it is inevitable that the pursuit of profit, valuable as it is, will conflict with other important goals. But role-constrained corporate managers may not consider those other values, even in circumstances where they, or any other corporate participant, would view them as important. Because corporate speakers are barred from considering the full range of values critical to any citizen's analysis, corporate speech cannot reflect the actual views of any citizen or human being with a claim on corporate assets. Instead, it is legally constrained advocacy, using corporate resources, on behalf of a purely imaginary principal, reflecting only one side of the conflicts around which our politics revolves. It follows that current First Amendment doctrine is backwards. The speaker matters; instead of corporate speech being protected, it should be suspect. To grant a tool a right against the citizens who use it is a form of political idolatry that ought to be abhorrent to any democratic regime.
{"title":"Essential Speech: Why Corporate Speech Is Not Free","authors":"D. Greenwood","doi":"10.2139/SSRN.794785","DOIUrl":"https://doi.org/10.2139/SSRN.794785","url":null,"abstract":"In a democracy, the citizens are the only legitimate sources of law. It follows inexorably that corporations, not being citizens, cannot be legitimate political actors. The problem of corporate speech is further complicated by the internal rules of corporate governance. When corporations \"speak,\" they do so by decision of their managers, who are constrained by fiduciary duties and economic pressure of the stock market to advocate for a single value: maximum profit for shares. In a multifaceted culture of manifold and various values, it is inevitable that the pursuit of profit, valuable as it is, will conflict with other important goals. But role-constrained corporate managers may not consider those other values, even in circumstances where they, or any other corporate participant, would view them as important. Because corporate speakers are barred from considering the full range of values critical to any citizen's analysis, corporate speech cannot reflect the actual views of any citizen or human being with a claim on corporate assets. Instead, it is legally constrained advocacy, using corporate resources, on behalf of a purely imaginary principal, reflecting only one side of the conflicts around which our politics revolves. It follows that current First Amendment doctrine is backwards. The speaker matters; instead of corporate speech being protected, it should be suspect. To grant a tool a right against the citizens who use it is a form of political idolatry that ought to be abhorrent to any democratic regime.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"83 1","pages":"995"},"PeriodicalIF":1.3,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67830188","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}
{"title":"Do you know who your physician is? Placing physician information on the Internet.","authors":"Kristin Baczynski","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"87 4","pages":"1303-35"},"PeriodicalIF":1.3,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24535481","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}
Driven by public concern about sex offenses, in recent years Congress has repeatedly enhanced the penalties for federal sex offenders. In doing so, it has responded to the predominant portrayal of sex offenders as inhuman predators, and heeded the demand of victims rights groups for longer sentences. However, it has failed to consider the special make-up of the sex offender population sentenced in federal court. While only a small number of all sex offenders are sentenced in federal court, over half of them are Native Americans. The culpability and future risk of many Native American sex offenders, however, differs dramatically from that of non-Native American offenders. Many of them are situational rather than dispositional offenders. The guidelines fail to account for unique features, such as the high alcoholism rate on reservations, which may contribute to sex offenses committed by Native Americans. In addition, the federal sentencing regime does not consider the special impact of incarceration upon them. This article calls upon the U.S. Sentencing Commission to use its special expertise and institutional position to help create more equitable and fair sentencing policies for all, and to start by addressing the impact of current sentencing practices on Native American sex offenders. This request is based on the Commission's statutory obligation to assist Congress in creating a rational and humane sentencing policy. The article outlines a number of possibilities to address the plight of Native American sex offenders. Among them are the recognition of novel departure grounds and allowing federal courts to consider comparable state sentences in imposing punishment. While such proposals ask that fundamental tenets of guideline sentencing be reconsidered, they promise greater justice and fairness for all.
{"title":"First Peoples, First Principles: The Sentencing Commission's Obligation to Reject False Images of Criminal Offenders","authors":"Nora V. Demleitner","doi":"10.2139/SSRN.301647","DOIUrl":"https://doi.org/10.2139/SSRN.301647","url":null,"abstract":"Driven by public concern about sex offenses, in recent years Congress has repeatedly enhanced the penalties for federal sex offenders. In doing so, it has responded to the predominant portrayal of sex offenders as inhuman predators, and heeded the demand of victims rights groups for longer sentences. However, it has failed to consider the special make-up of the sex offender population sentenced in federal court. While only a small number of all sex offenders are sentenced in federal court, over half of them are Native Americans. The culpability and future risk of many Native American sex offenders, however, differs dramatically from that of non-Native American offenders. Many of them are situational rather than dispositional offenders. The guidelines fail to account for unique features, such as the high alcoholism rate on reservations, which may contribute to sex offenses committed by Native Americans. In addition, the federal sentencing regime does not consider the special impact of incarceration upon them. This article calls upon the U.S. Sentencing Commission to use its special expertise and institutional position to help create more equitable and fair sentencing policies for all, and to start by addressing the impact of current sentencing practices on Native American sex offenders. This request is based on the Commission's statutory obligation to assist Congress in creating a rational and humane sentencing policy. The article outlines a number of possibilities to address the plight of Native American sex offenders. Among them are the recognition of novel departure grounds and allowing federal courts to consider comparable state sentences in imposing punishment. While such proposals ask that fundamental tenets of guideline sentencing be reconsidered, they promise greater justice and fairness for all.","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2002-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68481160","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}
{"title":"Social risk and the transformation of public health law: lessons from the plague years.","authors":"Elizabeth Cooper","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51610,"journal":{"name":"Iowa Law Review","volume":"86 3","pages":"869-947"},"PeriodicalIF":1.3,"publicationDate":"2001-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24596939","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：