Law and Contemporary Problems最新文献

{"title":"Cultural Environmentalism and Beyond","authors":"J. Boyle","doi":"10.2139/SSRN.3084148","DOIUrl":"https://doi.org/10.2139/SSRN.3084148","url":null,"abstract":"I INTRODUCTION It is hard to explain how honored I was when Larry Lessig and his colleagues at Stanford organized this conference around some of my ideas--or more accurately, around a set of ideas for which they gave me greater credit than I deserved. This kind of thing generally happens when one is either dead or retiring (I am hoping that the contributors do not have some knowledge I lack about the imminence of either of those events). The event was doubly humbling. The scholars who agreed to write for this volume are a remarkable group whose work I admire greatly, while Larry's own scholarship and work as a public intellectual are also a great inspiration to me--he is clearly the one whose work deserves a symposium, if anyone's does. The contributions to the symposium include four main articles that engage in different ways and degrees with my work and with the idea of cultural environmentalism, commentaries on those articles, and, at the end, two papers that evolved from commentaries but that are no longer directed towards the articles on which they originally commented. (1) I could not hope to respond to everything in the volume point by point, and I am not going to try. Instead, I will offer my own thoughts on the failings, limitations, occasional promise, and possible future of the ideas discussed in this symposium--both the work on cultural environmentalism and the surrounding ideas on authorship, the rhetoric of economic analysis, the structure of intellectual property scholarship, and the jurisprudence of the public domain. Where appropriate, I will try to link my comments back to the individual articles and comments in this symposium. II MAKING VISIBLE THE INVISIBLE You will recall my work here, such as it has been.... None of it does more than mark time. Repetitive and disconnected, it advances nowhere. Since indeed it never ceases to say the same thing, it perhaps says nothing. It is tangled up into an indecipherable, disorganised muddle. In a nutshell, it is inconclusive. Still, I could claim that after all these were only trails to be followed, it mattered little where they led; indeed, it was important that they did not have a predetermined starting point and destination. They were merely lines laid down for you to pursue or to divert elsewhere, or re-design as the case might be. They are, in the final analysis, just fragments, and it is up to you or me to see what we can make of them. For my part, it has struck me that I might have seemed a bit like a whale that leaps to the surface of the water disturbing it momentarily with a tiny jet of spray and lets it be believed, or pretends to believe, or wants to believe, or himself does in fact believe, that down in the depths where no one sees him any more, where he is no longer witnessed nor controlled by anyone, he follows a more profound, coherent and reasoned trajectory. Well, anyway, that was more or less how I at least conceived the situation; it could be that you perceived it di","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"29 1","pages":"5-22"},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77690554","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":"The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma","authors":"K. Rothenberg, Alice Wang","doi":"10.1093/acprof:oso/9780195340525.003.0013","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195340525.003.0013","url":null,"abstract":"Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study? Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics. That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer? These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human. This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"82 1","pages":"343-366"},"PeriodicalIF":0.0,"publicationDate":"2007-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84844512","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":"Scientific Secrecy and 'Spin': The Sad, Sleazy Saga of the Trials of Remune","authors":"S. Haack","doi":"10.2139/SSRN.692042","DOIUrl":"https://doi.org/10.2139/SSRN.692042","url":null,"abstract":"A drug company funds a large-scale clinical trial of a new AIDS therapy; when the results are unfavorable, the company tries to prevent their being published; when the researchers go ahead with publication anyway; the company seeks millions of dollars in damages. Of course, viewed more closely, things are more complicated than they seem at first. The author sketches an account of what science is and does that suggests how and why the ways in which scientific work is funded can distort or even block its progress, and concludes with some thoughts about industrial sponsorship of scientific research in the universities.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"96 3 1","pages":"47-68"},"PeriodicalIF":0.0,"publicationDate":"2006-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87691202","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":"Money Laundering Amidst Mortars: Legislative Process and State Authority in Post-Invasion Iraq","authors":"H. Hamoudi","doi":"10.31228/osf.io/z9pq2","DOIUrl":"https://doi.org/10.31228/osf.io/z9pq2","url":null,"abstract":"16 Transnational Law and Contemporary Problems 523 (2007)There existed a substantial divergence between the Coalition Provisional Authority, the U.S. and U.K. run entity responsible for governing Iraq after the fall of the Saddam Hussein regime, and the Iraqi body politic over the most fundamental assumptions and biases underlying political and economic forms of human association. This made effective governance by the CPA an impossible proposition. The disparate assumptions and biases in question related to the relationship of state authority and law to alternative religious and culturally based sources of authority. Specifically, the dominant Iraqi assumption is that religious institutions of authority, and in particular, the powerful Shi'i religious institution known as the marja'iyya, are not political, and that therefore matters that should be governed by religious authority are to be administered largely by elements operating beyond state control. Any prescriptive approach to legal change in Iraq requires an understanding of this central fact. The Article attempts to demonstrate this thesis with reference to a CPA order concerning money laundering whose terms the author participated in negotiating. In this example, the Iraqi presuppositions and biases manifested themselves in objections to CPA proposals regarding preferred modalities of regulation and enforcement, with regulatory exemptions sought for particular commercial actors over whom it was assumed that alternative, non state based forms of authority were more appropriate. The Article proposes a solution to this problem through a paradigm shift in the understanding of certain religious prohibitions on commercial activity, which could lead to a more salutary regulatory regime that harmonizes both state and religious forms of authority.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74793353","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":"Should a Licensing Market Require Licensing","authors":"Mark A. Lemley","doi":"10.31235/osf.io/4u92a","DOIUrl":"https://doi.org/10.31235/osf.io/4u92a","url":null,"abstract":"Copyright owners have persuaded the courts that they should win cases in which a defendant's use doesn't injure their market directly, but in which they could and would have charged a fee to grant permission for the use. Even assuming courts are right to have accepted this argument, it is unreasonable to then give the copyright owner not just the fee they would have charged but the power to prevent the use altogether or to collect damages far in excess of that fee. Licensing market cases are excellent choices for separating compensation and control, giving copyright owners the right to get paid without giving them control over transformative uses. Doing so is harder than simply denying injunctive relief, however. It requires us to rethink our definition of damages in copyright law with the aim of remedying injury rather than always seeking to deter infringement.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"185-204"},"PeriodicalIF":0.0,"publicationDate":"2006-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89757062","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":"The Invention of Traditional Knowledge","authors":"M. Sunder","doi":"10.2139/ssrn.890657","DOIUrl":"https://doi.org/10.2139/ssrn.890657","url":null,"abstract":"James Boyle's cultural environmentalism metaphor laid the foundation for the recognition and protection of traditional knowledge and natural resources found in the developing world. The theory underlying the Convention on Biological Diversity (CBD) was that while traditional communities may not have invented knowledge about the medicinal properties of local plants, they ought to be rewarded nonetheless for their preservation and conservation of biodiversity through limited rights to control and compensation. Taking a cue implicitly from the environmental justice movement, which demonstrated the disparate effects of environmental harms on disadvantaged minorities, the cultural environmental movement illustrated how Third World peoples are disproportionately disadvantaged by intellectual property law, which historically has not recognized their cultural contributions as protectable works of authorship. But while this paper credits cultural environmentalism with offering theoretical legitimacy for traditional knowledge protection, it further considers whether the metaphor may also disable a more dynamic and modern view of traditional knowledge. In fact, traditional knowledge is far from static and archaic and much more dynamic than the environmentalism metaphor acknowledges. The makers of Mysore silk sarees in India respond to new market, technological, and cultural needs, for example, offering waterproof sarees in hi-tech designs to today's global consumers. I consider how the environmentalism metaphor may impede an understanding of poor people's knowledge (a term I prefer to traditional knowledge) as creative works of authorship deserving of ex ante intellectual property rights rather than just as rights afforded ex post to reward preservation of ancient traditions or to correct longstanding cultural and distributive injustice.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"80 1","pages":"97-124"},"PeriodicalIF":0.0,"publicationDate":"2006-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88431245","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":"Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, and Law","authors":"B. Garland, M. Frankel","doi":"10.1093/acprof:oso/9780195340525.003.0005","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195340525.003.0005","url":null,"abstract":"I INTRODUCTION As the poet Mark Strand said, \"The future is always beginning now.\" (1) When considering the social impact that neuroscience and behavioral genetics will have on the criminal justice system, scientists, lawyers, courts, and policymakers might do well to keep Strand's words in mind. Too often it is assumed that for developments in science and technology, there is time to start the policy dialogue in \"the future.\" Those who would address the issues later typically assert that the science in question is too immature, that it is too early, that the discussion is too speculative. While such objections sometimes have merit, it seems society is most often too slow in promoting a public dialogue. Open public dialogue is an important tool in considering and weighing public reaction, in informing the public and policymakers, and in building public consensus about appropriate and responsible uses of science and technology. Scientific advancements can result in strong, negative public reactions, as with nuclear power in the United States, genetically modified food crops in the European Union, and human research cloning in a variety of nations. This negative backlash can in turn influence scientists and science policy and slow the progress of socially valuable research. When the social risks are great, it may be prudent to slow the pace of research. However, when the risks are minimal, and the negative reaction is based on incomplete or inaccurate information about the science, then restraints on research serve little purpose. Now is the time to call on scientists, lawyers, courts, and lawmakers to begin a sustained dialogue focused on the impact that scientific discoveries and technological advances might have on the criminal law. The dialogue should focus on developing appropriate policies to address the legal and social issues raised by such advances. Such a dialogue is necessary, in particular, concerning the focus of this essay: the impact of neuroscience and behavioral genetics on criminal law. This article first briefly considers some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, as well as how each field might be applied in criminal proceedings. The article then focuses on a common concern raised by both fields in this context--the possible misuse of science in the criminal law. It concludes with a proposal to address the need for a continuing policy dialogue about the law and scientific developments in neuroscience and behavioral genetics. II A POLICY PERSPECTIVE The American Association for the Advancement of Science (AAAS) (2) has sought to advance the public and policy dialogues in both behavioral genetics and neuroscience in the past few years. (3) It is reasonable to ask why anyone would consider the effect on the criminal law of two broad scientific fields, rather than deal with each separately. It seems increasingly","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"22 1","pages":"101-114"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73799780","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":"Misinformation, Misrepresentation, and Misuse of Human Behavioral Genetics Research","authors":"J. Kaplan","doi":"10.1093/acprof:oso/9780195340525.003.0002","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195340525.003.0002","url":null,"abstract":"I INTRODUCTION \"Behavioral genetics\" does not describe a single field with a single set of methodological tools, nor does it describe a single explanatory project. Rather, different researchers are interested in answering different questions about the relationship(s) between genes, behaviors, and development, and they use different methodologies to answer their questions. The same diversity holds for human behavioral genetics: different researchers are interested in different questions, and in attempting to answer those questions they use different approaches. At the broadest level, one can distinguish between (1) research into the differences in behaviors between different individuals and (2) research into behaviors shared by (most) individuals. It is obvious that some traits vary between people. Different people tend to act differently--when, for example, someone is said to be shy, it follows that, in general, they act differently at parties than people who are said to be gregarious. It is equally obvious that some traits do not vary much between people--although different people may speak different languages, all normal human adults (unlike other animals) use some complex language and learn that language while growing up. Researchers interested in the differences within a population will focus on the variation within that population. For example, within normal human populations, some people are taller than others, some people score higher on standardized intelligence tests than others, and some are more prone to violent behavior than others. Researchers interested in such differences attempt to discover how these differences are associated with the presence or absence of particular genes or environments. In other words, are particular genes associated with being more (rather than less) prone to violence? Do particular environments in which children grow up result in their being more (rather than less) likely to score highly on intelligence quotient (IQ) tests? More generally, such research focuses on particular differences in the resources used in organismal development. Humans, for example, develop over time from a single fertilized egg to an adult capable of a variety of complex behaviors, behaviors that require a body consisting of an astonishingly complex organization of many different types of cells. The development of any complex organism requires a variety of resources. Some of these resources are genetic (the genetic material inherited from the parents), some are environmental (from the prenatal environment of the mother, to the provision of food, and so forth), and some are hard to classify (the complex subcellular systems that, in conjunction with genes, make proteins, etc.). The outcome of this development is a complex organism that differs from (and, of course, resembles) other organisms in the population in a variety of ways. The goal of research focused on differences is to find ways to associate different phenotypes with differe","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"18 1","pages":"47-80"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91387562","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":"Genetic Predictions of Future Dangerousness: Is There a Blueprint For Violence?","authors":"Erica Beecher-Monas, E. Garcia-Rill","doi":"10.1093/ACPROF:OSO/9780195340525.003.0012","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780195340525.003.0012","url":null,"abstract":"I INTRODUCTION The brave new world of genomics, spurred on by the Human Genome Project, presents tantalizing possibilities for developments in criminal law as well as advances in medicine and understanding disease. DNA identification testing has become commonplace in the courts, transforming the criminal justice system, demonstrating innocence, and identifying perpetrators. Already it is clear that DNA testing will be used as a way of predicting which medical treatments will be effective. With predictive medicine becoming a reality, surely predicting human behavior cannot be far behind. The link between crime and genetics is hardly a new idea. Since at least the late nineteenth century, courts and prisons have reflected attempts to discriminate between the innately criminal and those who acted merely by force of circumstance, whose crimes would not pose a future danger to society. (1) To aid this distinction, predictions of future dangerousness became vital to the criminal justice system. This legacy has persisted despite the enactment of civil rights legislation that did away with the more overtly racist laws derived from eugenics. As a result, predictions of future dangerousness now dominate death penalty sentencing determinations and the commitment proceedings of sexually violent predators. (2) Surprisingly, although the stakes are high for their subjects, the predictions receive little judicial or legislative scrutiny. Courts and legislatures are well aware of the unscientific nature of these predictions; nonetheless, they continue to demand them. (3) Responding to this continued demand, researchers have attempted to improve the accuracy of their predictions of future dangerousness by developing actuarial instruments to assess the risk of repeated violence in offenders and psychiatric patients by examining a number of factors, scored on a scale with points varying according to the particular instrument. (4) Each instrument evaluates different risk factors, and scores each differently. No one method is particularly predictive; (5) but the general consensus is that such instruments are superior to clinical judgment alone. (6) Whether future dangerousness predictions can meet standards of scientific validity, and what, if anything, can be done to improve them, are highly debatable issues. (7) The question posed by behavioral genetics is whether molecular biology can improve this record. Genetic information, including behavioral genetics, has exploded under the influence of the Human Genome Project. (8) Virtually everyone agrees that genes influence behavior. (9) Scandinavian studies of adopted twins are widely touted as supporting the role of genes in crime. (10) That the cycle of violence is repeated across generations is common knowledge. (11) Recently, alleles of specific genes, like those transcribing for monoamine oxidase A (MAOA), have been identified and linked with propensities to violence. (12) Should adding genetic information to the m","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"38 1","pages":"301-341"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76814864","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":"BEHAVIORAL GENETICS: THE SCIENCE OF ANTISOCIAL BEHAVIOR.","authors":"Laura A Baker, Serena Bezdjian, Adrian Raine","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"69 1-2","pages":"7-46"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2174903/pdf/nihms-24653.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27206470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}