Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines. In this Article, prepared as part of the IP Scholars Forum at Akron Law, I look at the other side of the risk coin. In particular, I argue that early-stage companies, and sometimes later-stage companies as well, are often willing to take on significant intellectual property risks in pursuit of commercial opportunities. And by providing courts with opportunities to take head-on key intellectual property questions, these risk-taking activities, in effect, may often help counterbalance whatever negative effects the behavior of risk-averse actors entails. I examine reasons why both types of entities are often willing to take on intellectual property risks. And I review a number of examples where both early and later-stage companies have heavily influenced the development of key intellectual property law doctrines by being willing to take their intellectual property disputes to court. This review, however, highlights several reasons why early-stage companies are more dependable risk-taking entities than later-stage companies. I thus conclude by briefly assessing two intellectual property-related means by which to specifically encourage early-stage companies to continue to take on intellectual property risks.
{"title":"Risk Taking and Rights Balancing in Intellectual Property Law","authors":"C. Asay","doi":"10.2139/ssrn.3532088","DOIUrl":"https://doi.org/10.2139/ssrn.3532088","url":null,"abstract":"Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can \u0000negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines. \u0000 \u0000In this Article, prepared as part of the IP Scholars Forum at Akron Law, I look at the other side of the risk coin. In particular, I argue that early-stage companies, and sometimes later-stage companies as well, are often willing to take on significant intellectual property risks in pursuit of commercial opportunities. And by providing courts with opportunities to take head-on key intellectual property questions, these risk-taking activities, in effect, may often help counterbalance whatever negative effects the behavior of risk-averse actors entails. I examine reasons why both types of entities are often willing to take on intellectual property risks. And I review a number of examples where both early and later-stage companies have heavily influenced the development of key intellectual property law doctrines by being willing to take their intellectual property disputes to court. \u0000 \u0000This review, however, highlights several reasons why early-stage companies are more dependable risk-taking entities than later-stage companies. I thus conclude by briefly assessing two intellectual property-related means by which to specifically encourage early-stage companies to continue to take on intellectual property risks.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49326495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On Individual Participation within Mass Litigation: The Case of the Fairness Hearing","authors":"Nourit Zimerman","doi":"10.2139/ssrn.3421038","DOIUrl":"https://doi.org/10.2139/ssrn.3421038","url":null,"abstract":"","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68592122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Professor Metze dissects the American Bar Association report, September 2013, entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report -- An Analysis of Texas’s Death Penalty Laws, Procedures and Practices. This Report was produced by the ABA’s Section of Individual Rights and Responsibilities, specifically the Death Penalty Due Process Review Project, which identified twelve inadequacies in the Texas Capital Punishment System, recommended changes, and evaluated compliance. Now, four years and two legislative sessions later, this paper explores what Texas has done in the interim to improve its death penalty process. Incredibly, the paper concludes that Texas has made great strides in ensuring fairness, reducing the risk of executing the innocent, and preserving public confidence in the criminal justice system. Texas is beginning, in the words of his generation’s poet laureate, to be able to say it did not turn away, failing to hear or see “what sorrow brings” while the condemned silently die.
{"title":"Dissecting the ABA Texas Capital Punishment Assessment Report of 2013: Death and Texas, a Surprising Improvement","authors":"P. Metze","doi":"10.2139/SSRN.3028789","DOIUrl":"https://doi.org/10.2139/SSRN.3028789","url":null,"abstract":"Professor Metze dissects the American Bar Association report, September 2013, entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report -- An Analysis of Texas’s Death Penalty Laws, Procedures and Practices. This Report was produced by the ABA’s Section of Individual Rights and Responsibilities, specifically the Death Penalty Due Process Review Project, which identified twelve inadequacies in the Texas Capital Punishment System, recommended changes, and evaluated compliance. Now, four years and two legislative sessions later, this paper explores what Texas has done in the interim to improve its death penalty process. Incredibly, the paper concludes that Texas has made great strides in ensuring fairness, reducing the risk of executing the innocent, and preserving public confidence in the criminal justice system. Texas is beginning, in the words of his generation’s poet laureate, to be able to say it did not turn away, failing to hear or see “what sorrow brings” while the condemned silently die.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47321205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents on life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development. Consequently, pharmaceutical companies have expertly navigated this confluence of patents with regulatory data protection to leverage themselves in a manner effectively creating high protection and financial rewards for what materials that could otherwise be susceptible for generic competition. This Article concerns itself with the regulatory regime that effectively provides for exclusivity of clinical trial data. The focus of the Article will be on how and why data exclusivity works for the pharmaceutical industry to promote and/or protect market exclusivity globally. Thus, the Article examines what data exclusivity is, the international trade obligations relating to providing data exclusivity, and the impact of the data exclusivity obligations on access to medication issues, with a specific focus on developing countries while keeping the U.S. regime as the vantage point to examine these issues. The Article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data, thus adding to the protection regime for chemical or biologic data. In doing so, this Article will address some of the more controversial issues that have arisen globally with reference to data exclusivity within the larger access to medication debate.
{"title":"The (Re)newed Barrier to Access to Medication: Data Exclusivity","authors":"S. Ragavan","doi":"10.2139/SSRN.3187345","DOIUrl":"https://doi.org/10.2139/SSRN.3187345","url":null,"abstract":"This Article is set in the background of the consequences of the WTO’s prescriptions on patenting of life-saving medications which has largely contributed to the morphing of patents on life-saving medication into a luxury. Remarkably, there has been a transformation of the role of patents in the context of pharmaceutical innovation into a strategic business tool leading to a larger interest in creation and sustenance of regulatory rights. The biggest global development in this area is an increased effort to strengthen exclusivity using regulatory protections for all chemicals, and even, biologics, involved in all stages of drug development. Consequently, pharmaceutical companies have expertly navigated this confluence of patents with regulatory data protection to leverage themselves in a manner effectively creating high protection and financial rewards for what materials that could otherwise be susceptible for generic competition. This Article concerns itself with the regulatory regime that effectively provides for exclusivity of clinical trial data. The focus of the Article will be on how and why data exclusivity works for the pharmaceutical industry to promote and/or protect market exclusivity globally. Thus, the Article examines what data exclusivity is, the international trade obligations relating to providing data exclusivity, and the impact of the data exclusivity obligations on access to medication issues, with a specific focus on developing countries while keeping the U.S. regime as the vantage point to examine these issues. The Article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data, thus adding to the protection regime for chemical or biologic data. In doing so, this Article will address some of the more controversial issues that have arisen globally with reference to data exclusivity within the larger access to medication debate.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68570016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As a young woman in the legal profession, I have learned that everyone has an opinion on what I should wear and how I should look in court, in the office, in academic settings, and around clients. This paper aims to use social science research to explore how a woman’s perceived physical attractiveness and femininity affects how others perceive her competence, skills, and abilities in male-dominated professions and in the law specifically. I will use the terms attractiveness and femininity interchangeably since women who are judged as being more attractive are typically seen as more feminine and women who are viewed as being more feminine are typically viewed as being more attractive. In Part II, I discuss the “Beauty is Good” and “Beauty is Beastly” stereotypes and their effects on women in male-dominated professions. In Part III, I discuss how physical attractiveness and femininity can lead to discrimination against women in the law. In Part IV, I discuss what can be done to ensure that women are judged not by their physical appearances but by their merit. Lastly, in Part V, I conclude by identifying areas for future research.
{"title":"Physical Attractiveness and Femininity: Helpful or Hurtful for Female Attorneys","authors":"Peggy Li","doi":"10.2139/ssrn.2318802","DOIUrl":"https://doi.org/10.2139/ssrn.2318802","url":null,"abstract":"As a young woman in the legal profession, I have learned that everyone has an opinion on what I should wear and how I should look in court, in the office, in academic settings, and around clients. This paper aims to use social science research to explore how a woman’s perceived physical attractiveness and femininity affects how others perceive her competence, skills, and abilities in male-dominated professions and in the law specifically. I will use the terms attractiveness and femininity interchangeably since women who are judged as being more attractive are typically seen as more feminine and women who are viewed as being more feminine are typically viewed as being more attractive. In Part II, I discuss the “Beauty is Good” and “Beauty is Beastly” stereotypes and their effects on women in male-dominated professions. In Part III, I discuss how physical attractiveness and femininity can lead to discrimination against women in the law. In Part IV, I discuss what can be done to ensure that women are judged not by their physical appearances but by their merit. Lastly, in Part V, I conclude by identifying areas for future research.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2318802","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68097491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that path and, ironically, results in a process of decision-making that is fairer than the Court’s current due process jurisprudence.
{"title":"Fundamental Unenumerated Rights Under the Ninth Amendment and Privileges or Immunities Clause","authors":"Adam Lamparello","doi":"10.2139/ssrn.2586311","DOIUrl":"https://doi.org/10.2139/ssrn.2586311","url":null,"abstract":"The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that path and, ironically, results in a process of decision-making that is fairer than the Court’s current due process jurisprudence.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68213492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than
{"title":"Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey","authors":"G. Brown, A. Schneider","doi":"10.2139/SSRN.2390278","DOIUrl":"https://doi.org/10.2139/SSRN.2390278","url":null,"abstract":"This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68169506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States. This Essay, one in a series of pieces adopting a Law & Literature approach to environmental law, identifies emerging storylines that have begun to predominate in environmental law discourse and that will prove influential in the coming years. The Essay elaborates on 1) how new perceptions of scale are re-defining human beings’ attachments to a sense of “place” or “dwelling,” and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes; 2) how America’s long history of nationalizing nature manifests in the discourse surrounding energy security, energy independence, and the “green economy,” a discourse which has quickly come into conflict with existing place-based preservationist storylines; and 3) how climate change impacts and the demand for adaptation can produce a reimagining of nature and culture as a kind of cyborg. The Essay concludes by noting commonalities and distinctions between new and old environmental stories, and reflecting on how more radical transformations may lay ahead.
{"title":"Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization","authors":"Michael Burger","doi":"10.7916/D8057F34","DOIUrl":"https://doi.org/10.7916/D8057F34","url":null,"abstract":"Climate change has fundamentally disrupted the traditional stories and narrative structures that underlie modern environmental law in the United States. This Essay, one in a series of pieces adopting a Law & Literature approach to environmental law, identifies emerging storylines that have begun to predominate in environmental law discourse and that will prove influential in the coming years. The Essay elaborates on 1) how new perceptions of scale are re-defining human beings’ attachments to a sense of “place” or “dwelling,” and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes; 2) how America’s long history of nationalizing nature manifests in the discourse surrounding energy security, energy independence, and the “green economy,” a discourse which has quickly come into conflict with existing place-based preservationist storylines; and 3) how climate change impacts and the demand for adaptation can produce a reimagining of nature and culture as a kind of cyborg. The Essay concludes by noting commonalities and distinctions between new and old environmental stories, and reflecting on how more radical transformations may lay ahead.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities. To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.
{"title":"Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny","authors":"M. Bowman","doi":"10.2139/SSRN.2191780","DOIUrl":"https://doi.org/10.2139/SSRN.2191780","url":null,"abstract":"This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities. To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67979274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The current plethora of doctrines surrounding the law of personal jurisdiction has added more confusion to the law than it has coherence. Among other things, these doctrines confuse the sufficient with the necessary and they elevate the technicalities of doctrine over the fundamental principles at stake. The 2011 Supreme Court’s opinions, Goodyear Dunlop Tires Operations, S.A. v. Brown and J. McIntyre Machinery, Ltd. v. Nicastro are just two recent examples of that phenomenon. This article argues that since the decision in International Shoe, which focused more on fundamental principles than it did on the niceties of doctrine, the Supreme Court has moved more steadily toward a technical and specialized approach to personal jurisdiction doctrine that has ended up confusing lower courts and the Supreme Court itself. Thus, by deconstructing the law of personal jurisdiction, and carefully examining over one hundred years of the Court’s jurisprudence as well as lower courts’ confusion, the article suggests to clear the confusion by returning to the principles traceable to International Shoe and Pennoyer and codifying them in a “due-process-style” rule premised on connecting factors and expectations.
{"title":"Personal Jurisdiction: A Doctrinal Labyrinth with No Exit","authors":"S. Grossi","doi":"10.2139/SSRN.2155121","DOIUrl":"https://doi.org/10.2139/SSRN.2155121","url":null,"abstract":"The current plethora of doctrines surrounding the law of personal jurisdiction has added more confusion to the law than it has coherence. Among other things, these doctrines confuse the sufficient with the necessary and they elevate the technicalities of doctrine over the fundamental principles at stake. The 2011 Supreme Court’s opinions, Goodyear Dunlop Tires Operations, S.A. v. Brown and J. McIntyre Machinery, Ltd. v. Nicastro are just two recent examples of that phenomenon. This article argues that since the decision in International Shoe, which focused more on fundamental principles than it did on the niceties of doctrine, the Supreme Court has moved more steadily toward a technical and specialized approach to personal jurisdiction doctrine that has ended up confusing lower courts and the Supreme Court itself. Thus, by deconstructing the law of personal jurisdiction, and carefully examining over one hundred years of the Court’s jurisprudence as well as lower courts’ confusion, the article suggests to clear the confusion by returning to the principles traceable to International Shoe and Pennoyer and codifying them in a “due-process-style” rule premised on connecting factors and expectations.","PeriodicalId":80399,"journal":{"name":"Akron law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67956309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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