In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion. The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty. The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.
{"title":"Why and How the Supreme Court Should End the Death Penalty","authors":"Kenneth A. Williams","doi":"10.2139/SSRN.2734250","DOIUrl":"https://doi.org/10.2139/SSRN.2734250","url":null,"abstract":"In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion. The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty. The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"44 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2016-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87537100","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}
Americans are renowned for being litigious. But only less than three percent of all disputes end up in court, and a paltry one percent of all filed lawsuits end with a decision on the merits. The reason for this paradox is that most disputes take place outside of the judicial system, and further, most disputes start and end with a cease-and-desist letter. This is particularly the case in the intellectual property area, where seasoned attorneys admit that much of their practice revolves around cease-and-desist letters. Although there is much to favor in the private resolution of disputes, there are economic and legal factors that serve to incentivize some rights holders to send abusive cease-and-desist letters. At the same time, abusive cease-and-desist letters are not effectively regulated where such letters are sent to vulnerable parties, such as small businesses and individuals. It is often these vulnerable targets who will immediately comply with abusive letters due to unique characteristics of this population, which when coupled with the abusive cease-and-desist letter, create a coercive settlement process. This is problematic because coercion is universally regarded as grounds for invalidating agreements. However, small businesses and individuals do not have the resources to bring the necessary lawsuits to invalidate such agreements, which create de facto enforced, coerced agreements. State legislators, state attorneys general and the United States Congress have all recognized the problems of abusive cease-and-desist letters, at least with respect to the practices of “patent trolls.” In the past year, state legislatures and Congress have enacted or initiated new legislation, and several state attorneys general have undertaken enforcement action. While these efforts are laudable, a focus on patent trolls is short-sighted and narrow, as similar problems are occurring in other legal areas, including in the copyright and trademark area. This Article argues that proposals to assist small businesses and individuals with abusive cease-and-desist letters should be broad-based and also include non-legislative means. In addition, attempts to assist this vulnerable population should also target the characteristics that make them vulnerable to coercion. To do so, this Article proposes both legislative and non-legislative action: first, a new cause of action for “abusive threats”; second, greater involvement by the American Bar Association, and state and local bar associations; and finally, more aggressive efforts by state attorneys general and/or the Federal Trade Commission.
{"title":"Policing the Cease-and-Desist Letter","authors":"Leah Chan Grinvald","doi":"10.2139/SSRN.2515455","DOIUrl":"https://doi.org/10.2139/SSRN.2515455","url":null,"abstract":"Americans are renowned for being litigious. But only less than three percent of all disputes end up in court, and a paltry one percent of all filed lawsuits end with a decision on the merits. The reason for this paradox is that most disputes take place outside of the judicial system, and further, most disputes start and end with a cease-and-desist letter. This is particularly the case in the intellectual property area, where seasoned attorneys admit that much of their practice revolves around cease-and-desist letters. Although there is much to favor in the private resolution of disputes, there are economic and legal factors that serve to incentivize some rights holders to send abusive cease-and-desist letters. At the same time, abusive cease-and-desist letters are not effectively regulated where such letters are sent to vulnerable parties, such as small businesses and individuals. It is often these vulnerable targets who will immediately comply with abusive letters due to unique characteristics of this population, which when coupled with the abusive cease-and-desist letter, create a coercive settlement process. This is problematic because coercion is universally regarded as grounds for invalidating agreements. However, small businesses and individuals do not have the resources to bring the necessary lawsuits to invalidate such agreements, which create de facto enforced, coerced agreements. State legislators, state attorneys general and the United States Congress have all recognized the problems of abusive cease-and-desist letters, at least with respect to the practices of “patent trolls.” In the past year, state legislatures and Congress have enacted or initiated new legislation, and several state attorneys general have undertaken enforcement action. While these efforts are laudable, a focus on patent trolls is short-sighted and narrow, as similar problems are occurring in other legal areas, including in the copyright and trademark area. This Article argues that proposals to assist small businesses and individuals with abusive cease-and-desist letters should be broad-based and also include non-legislative means. In addition, attempts to assist this vulnerable population should also target the characteristics that make them vulnerable to coercion. To do so, this Article proposes both legislative and non-legislative action: first, a new cause of action for “abusive threats”; second, greater involvement by the American Bar Association, and state and local bar associations; and finally, more aggressive efforts by state attorneys general and/or the Federal Trade Commission.","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"12 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74325241","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}
Takings law determines when governmental action has such an impact on private property that a remedy by way of injunction, damages or forced condemnation is required by Just Compensation clauses in state and federal constitutions. Examples include governmental prohibitions against the filling of wetlands, prohibitions on the sale of eagle feathers and restrictions on modifications of historic structures. Takings doctrine, however, is in serious disarray. Identification of the relevant property for purposes of takings analysis and determining exactly when a "taking" occurs have long baffled courts and commentators. This article addresses the takings problem by suggesting that we change the discourse. The article suggests that a cognitive science approach to the takings field will result in a reconstruction of the area and allow us to better address the concerns underlying the present doctrinal confusion. Part I describes the field of cognitive science, which seeks to organize knowledge in terms of what we perceive and the way we use cognitive models to learn and re-learn the world around us. The article demonstrates that legal doctrines can be productively viewed as cognitive models. The article then critically analyzes the strengths and shortcomings of viewing legal doctrines in cognitive terms. Part II illustrates the application of the cognitive science approach to the takings area. Since the area has proved particularly intractable under conventional legal analysis, it is an especially useful laboratory in which to test a cognitive science approach. Cognitive analysis reveals that conventional takings doctrine is a captive of the public-private distinction, which posits a domain of private existence completely separate from government. But since property rights gain significance only when enforced by government, use of takings analysis to differentiate a clear boundary between public and private spheres in property law is bound to fail. Cognitive analysis points the way toward alternative formulations of takings analysis that do not suffer from that critical weakness. For example, we can look at property rights in terms of the functions which such rights fulfill. These include the “general use” function, which is integral to self-expression, development, production and survival; the “welfare” function, intended to secure an individual a meaningful life beyond mere survival; the “protection” function, which shields people from exploitation by others; the “allocative” function, which assures people a share of resources sufficient to allow them to participate meaningfully in the political process; and the “sovereignty” function, which confers upon owners the power to influence others through control of the terms under which property will be exchanged. The advantage of cognitive modeling is that the terms of the discussion are transformed into an altogether different form of discourse.
{"title":"A Cognitive Science Approach to Takings","authors":"J. Martinez","doi":"10.2139/SSRN.2519293","DOIUrl":"https://doi.org/10.2139/SSRN.2519293","url":null,"abstract":"Takings law determines when governmental action has such an impact on private property that a remedy by way of injunction, damages or forced condemnation is required by Just Compensation clauses in state and federal constitutions. Examples include governmental prohibitions against the filling of wetlands, prohibitions on the sale of eagle feathers and restrictions on modifications of historic structures. Takings doctrine, however, is in serious disarray. Identification of the relevant property for purposes of takings analysis and determining exactly when a \"taking\" occurs have long baffled courts and commentators. This article addresses the takings problem by suggesting that we change the discourse. The article suggests that a cognitive science approach to the takings field will result in a reconstruction of the area and allow us to better address the concerns underlying the present doctrinal confusion. Part I describes the field of cognitive science, which seeks to organize knowledge in terms of what we perceive and the way we use cognitive models to learn and re-learn the world around us. The article demonstrates that legal doctrines can be productively viewed as cognitive models. The article then critically analyzes the strengths and shortcomings of viewing legal doctrines in cognitive terms. Part II illustrates the application of the cognitive science approach to the takings area. Since the area has proved particularly intractable under conventional legal analysis, it is an especially useful laboratory in which to test a cognitive science approach. Cognitive analysis reveals that conventional takings doctrine is a captive of the public-private distinction, which posits a domain of private existence completely separate from government. But since property rights gain significance only when enforced by government, use of takings analysis to differentiate a clear boundary between public and private spheres in property law is bound to fail. Cognitive analysis points the way toward alternative formulations of takings analysis that do not suffer from that critical weakness. For example, we can look at property rights in terms of the functions which such rights fulfill. These include the “general use” function, which is integral to self-expression, development, production and survival; the “welfare” function, intended to secure an individual a meaningful life beyond mere survival; the “protection” function, which shields people from exploitation by others; the “allocative” function, which assures people a share of resources sufficient to allow them to participate meaningfully in the political process; and the “sovereignty” function, which confers upon owners the power to influence others through control of the terms under which property will be exchanged. The advantage of cognitive modeling is that the terms of the discussion are transformed into an altogether different form of discourse.","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"27 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2014-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82386810","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 law and literature movement has a long and distinguished history and has spawned many strands since its origins in the eighteenth century. Most recently, legal storytelling has realized a prominent position in law school pedagogy; it is seen as a way to teach law students effective strategies for client advocacy. Storytelling acumen enables lawyers to present their clients’ circumstances to legal decision makers in ways that can facilitate favorable outcomes. What is less well-settled is how best to teach storytelling skills in law school. Some scholars are proponents of a theoretical approach — teaching students narrative theory and the rudiments of literary criticism — while others prefer practical methods founded in clinical courses. This article proposes a two-pronged approach to teach storytelling in a family law context utilizing both theory and practice. It features critical analysis of literary texts to expose persuasive narrative techniques and writing exercises designed to help students apply them to lawyering.
{"title":"Families, Law and Literature: The Story of a Course on Storytelling","authors":"J. B. Moran","doi":"10.2139/SSRN.2596782","DOIUrl":"https://doi.org/10.2139/SSRN.2596782","url":null,"abstract":"The law and literature movement has a long and distinguished history and has spawned many strands since its origins in the eighteenth century. Most recently, legal storytelling has realized a prominent position in law school pedagogy; it is seen as a way to teach law students effective strategies for client advocacy. Storytelling acumen enables lawyers to present their clients’ circumstances to legal decision makers in ways that can facilitate favorable outcomes. What is less well-settled is how best to teach storytelling skills in law school. Some scholars are proponents of a theoretical approach — teaching students narrative theory and the rudiments of literary criticism — while others prefer practical methods founded in clinical courses. This article proposes a two-pronged approach to teach storytelling in a family law context utilizing both theory and practice. It features critical analysis of literary texts to expose persuasive narrative techniques and writing exercises designed to help students apply them to lawyering.","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"13 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72755595","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}
OVER THE YEARS, Attorneys General of the United States have professed the view that their office “has a duty to defend and enforce both the Acts of Congress and the Constitution.”1 Consequently, as a general rule, Attorneys General have consistently affirmed that it is not the place of their office to declare statutes unconstitutional. When faced with a legislative act that they believe violates the Constitution, the Attorney General “can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”2 The reason
{"title":"Ex Parte McCardle and the Attorney General's Duty to Defend Acts of Congress","authors":"John E. Beerbower","doi":"10.2139/ssrn.1993066","DOIUrl":"https://doi.org/10.2139/ssrn.1993066","url":null,"abstract":"OVER THE YEARS, Attorneys General of the United States have professed the view that their office “has a duty to defend and enforce both the Acts of Congress and the Constitution.”1 Consequently, as a general rule, Attorneys General have consistently affirmed that it is not the place of their office to declare statutes unconstitutional. When faced with a legislative act that they believe violates the Constitution, the Attorney General “can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”2 The reason","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"10 3-4 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89280725","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 paper restricts itself to crimes involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses). The arguments do not apply to fraud as moral wrongfulness exists in that case. To the extent that the actions covered by this paper are blameworthy, I argue that this determination must be disentangled from punishment. Disentanglement of blame from deserts suggests a via-media between criminalization and decriminalization - criminalization without incarceration. Accordingly, the legal process stops at the determination of guilt. The paper advances the criminalization debate because it does not get bogged down in the irreconcilable quarrel about whether corporate governance misbehavior ought to be criminalized for deterrence, retribution, or rehabilitation reasons, and whether it achieves any of these purposes. For these offenses, I argue that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization. In appropriate cases, disgorgement of the offender’s gains will aid in the achievement of these objectives. The model proposed by this paper would yield significant savings by reducing prison costs. It would also allow the state to take advantage of the disproportionate cost/burden of conviction on corporate governance offenders. Owing to the offenders’ high earning potential, deterrence can be achieved at lower cost by conviction alone because the cost of incarceration does not have to be borne by the state whereas the destruction of capacity to generate similar (or indeed, any) income has to be suffered by the offender even without going to jail. If the cost of incarceration is the same for offenders with different earning capacities, imprisoning those with very high earning capacities is a waste of social capital if the objectives sought to be achieved by incarceration can be achieved through other means. Further, the cost of a conviction can be predicted with sufficient certainty in the case of white-collar criminals by looking at their earnings history, and in many cases this can be a significant sum. Unlike the common criminal who may not have a similarly predictable earning capacity and therefore suffer the same extent of monetary loss from a conviction, this loss ought to serve the deterrence function without the need for the state to spend money imprisoning the offender. In addition to loss of earning capacity, clawing back ill-gotten gains significantly adds to disutility. The paper is set out as follows: Part II briefly outlines the scope of the wrongs tackled as stemming from the principal-agent relationship in corporate law, and the inability of the law to overcome effectively problems resulting from the collectivization of the princip
{"title":"Skilling’s Martyrdom: The Case for Criminalization without Incarceration","authors":"S. Gopalan","doi":"10.2139/SSRN.1499256","DOIUrl":"https://doi.org/10.2139/SSRN.1499256","url":null,"abstract":"This paper restricts itself to crimes involving corporate fiduciaries taking bad decisions at the expense of shareholders (corporate governance offenses). The arguments do not apply to fraud as moral wrongfulness exists in that case. To the extent that the actions covered by this paper are blameworthy, I argue that this determination must be disentangled from punishment. Disentanglement of blame from deserts suggests a via-media between criminalization and decriminalization - criminalization without incarceration. Accordingly, the legal process stops at the determination of guilt. The paper advances the criminalization debate because it does not get bogged down in the irreconcilable quarrel about whether corporate governance misbehavior ought to be criminalized for deterrence, retribution, or rehabilitation reasons, and whether it achieves any of these purposes. For these offenses, I argue that whichever theoretical justification underpins the decision to criminalize, imprisonment must not follow conviction. The conviction, despite the lack of incarceration, and the consequential sanctions likely to be imposed on the wrongdoer are sufficient to satisfy the three main justifications for criminalization. In appropriate cases, disgorgement of the offender’s gains will aid in the achievement of these objectives. The model proposed by this paper would yield significant savings by reducing prison costs. It would also allow the state to take advantage of the disproportionate cost/burden of conviction on corporate governance offenders. Owing to the offenders’ high earning potential, deterrence can be achieved at lower cost by conviction alone because the cost of incarceration does not have to be borne by the state whereas the destruction of capacity to generate similar (or indeed, any) income has to be suffered by the offender even without going to jail. If the cost of incarceration is the same for offenders with different earning capacities, imprisoning those with very high earning capacities is a waste of social capital if the objectives sought to be achieved by incarceration can be achieved through other means. Further, the cost of a conviction can be predicted with sufficient certainty in the case of white-collar criminals by looking at their earnings history, and in many cases this can be a significant sum. Unlike the common criminal who may not have a similarly predictable earning capacity and therefore suffer the same extent of monetary loss from a conviction, this loss ought to serve the deterrence function without the need for the state to spend money imprisoning the offender. In addition to loss of earning capacity, clawing back ill-gotten gains significantly adds to disutility. The paper is set out as follows: Part II briefly outlines the scope of the wrongs tackled as stemming from the principal-agent relationship in corporate law, and the inability of the law to overcome effectively problems resulting from the collectivization of the princip","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"1732 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2009-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86522223","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":"Strengthening Article 20","authors":"M. Weiner","doi":"10.2139/ssrn.3430631","DOIUrl":"https://doi.org/10.2139/ssrn.3430631","url":null,"abstract":"","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"12 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82141572","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 starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. Finally, the author asserts that perhaps intellectual property rights, so powerful in other contexts, can be adapted to provide individuals with ownership and control over their personal information. While "high barrier" intellectual property protections are in many respects detrimental to society, the author argues that if corporations are entitled to benefit from then and "own" information, then individuals should be as well. Ownership of information by individuals allows them to fashion something resembling privacy in personal data.
{"title":"Our Data, Ourselves: Privacy, Propertization, and Gender","authors":"Ann Bartow","doi":"10.2139/SSRN.374101","DOIUrl":"https://doi.org/10.2139/SSRN.374101","url":null,"abstract":"This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be \"targeted\" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. Finally, the author asserts that perhaps intellectual property rights, so powerful in other contexts, can be adapted to provide individuals with ownership and control over their personal information. While \"high barrier\" intellectual property protections are in many respects detrimental to society, the author argues that if corporations are entitled to benefit from then and \"own\" information, then individuals should be as well. Ownership of information by individuals allows them to fashion something resembling privacy in personal data.","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82215964","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":"Toward a just model of alienability of human tissue.","authors":"Brian Budds","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"37 3","pages":"757-82"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25886186","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}
Scott Burris, Steffanie A Strathdee, Jon S Vernick
{"title":"Lethal injections: the law, science, and politics of syringe access for injection drug users.","authors":"Scott Burris, Steffanie A Strathdee, Jon S Vernick","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83425,"journal":{"name":"University of San Francisco law review. University of San Francisco. School of Law","volume":"37 4","pages":"813-85"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24767882","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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