Law and Contemporary Problems最新文献

{"title":"A Copernican View of Health Care Antitrust","authors":"W. Sage, P. Hammer","doi":"10.2307/1192285","DOIUrl":"https://doi.org/10.2307/1192285","url":null,"abstract":"This article proposes and explores an analogy between Copernican astronomy and American health care. The transformation in scientific thought that led scholars to reject the geocentric (earth-centered) model of the known universe that had prevailed since ancient times in favor of a heliocentric (sun-centered) model is an apt metaphor for attempts to harmonize the incompletely theorized blend of competition and regulation that characterizes the contemporary health care system. One can analogize pre-competitive, physician-centered conceptions of health care to \"Ptolemaic\" models that would eventually be superseded by a \"Copernican\" health system centered on consumers as economic actors. Without a doubt, antitrust law played a significant role in this reconceptualization of medical markets, and in dismantling explicit barriers to price competition, but traditional antitrust law has significant trouble accommodating non-price considerations such as quality, choice, and innovation. Underlying a Copernican view of antitrust law is the desire to construct an integrated competition policy for health care markets. Therefore, a Copernican view requires both rethinking the application of antitrust principles in their traditional domain and revisualizing the relationship between antitrust law and other forms of public and self-regulation. This article examines a range of traditional market failures and subjects of longstanding antitrust concern - issues of agency, asymmetric information, choice and standardization, and the state action doctrine - as well as topics that go beyond traditional market failures -- public purchasing, medical knowledge, technology and political action, and problems relating to insurance, access to health services and social welfare. In conducting this analysis, we conceive of these phenomena as existing within a complicated web of social relations, with private and public actors facing each other across a dynamic interface, not a discrete boundary separating \"market\" and \"nonmarket\" institutions.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"6 1","pages":"241-290"},"PeriodicalIF":0.0,"publicationDate":"2002-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86745189","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 Treaty of Nice: Arming the Courts to Defend a European Bill of Rights?","authors":"L. Heffernan","doi":"10.2307/1192243","DOIUrl":"https://doi.org/10.2307/1192243","url":null,"abstract":"I INTRODUCTION A. Background In December 2000, the European heads of government, meeting in Nice, took several momentous steps in the constitutional development of the European Union (\"E.U.\"). Chief among them was the creation of a Charter of Fundamental Rights, a strikingly broad catalogue of individual rights and freedoms drawn from both the civil and political, and economic and social rights traditions. (1) Consensus on the Charter's substantive guarantee was overshadowed by contention over its status in the E.U. legal order. In a compromise emblematic of European decision-making, the member states (2) adopted the Charter but left open the crucial issue of enforcement. Thus, for the time being, the Charter is no more than a non-binding declaration that copperfastens the E.U.'s existing commitment to human rights, as expressed in various treaty provisions and legislative measures, (3) and, above all, in the vibrant unenumerated rights tradition of the European Court of Justice. (4) Potentially, the Nice Summit will mark a major milepos t on the road to a European bill of rights. Assuming the member states ultimately enact remedial measures, including judicial protection, the transition may prove no less influential than the adoption of the Bill of Rights in the United States. In the immediate term, however, the Nice Summit will be remembered for a separate order of business, namely, the latest major revision to the various instruments comprising the Constitution of the Union. (5) The Treaty of Nice, (6) which will enter into force following ratification by each of the member states, (7) is designed to prepare the principal branches of government for enlargement to the east, which, according to current projections, could extend the membership from fifteen to twenty-seven states or more. In keeping with prior practice, the task of negotiating and finalizing the necessary amendments was entrusted to an intergovernmental conference (\"IGC 2000\") made up of representatives of the member states. IGC 2000's central focus was reform of the political institutions, notably the Commission and the Council. (8) The European Community courts were a less conspicuous but ultimately no less important item on the agenda. (9) Projected changes to the judicial branch were inspired not only by the prospect of enlargement, but also by an urgent need to remedy overburdened dockets and inefficiencies in the administration of justice. In Luxembourg, the seat of the Community courts, the problem of docket control is by no means new. For several years, the Court of Justice has been waging a losing battle to keep pace with the organic growth of Community litigation. A Court of First Instance (\"CFI\"), created in 1989, has played its part in alleviating caseload pressures. (10) The benefit of this additional Community forum has been offset by several factors: the exponential growth of Community legislation, the accession of new member states, and the extension of Community c","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"7 1","pages":"189-222"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73332185","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":"Telling Miller’s Tale: A Reply to David Yassky","authors":"Brannon P. Denning, G. Reynolds","doi":"10.2307/1192241","DOIUrl":"https://doi.org/10.2307/1192241","url":null,"abstract":"I INTRODUCTION Only in recent years (1) have those opposed to the individual rights interpretation of the Second Amendment, which one of us dubbed the \"Standard Model,\" come forth with theories attempting to harmonize text, history, and structure to show that the Amendment is the Constitution's version of Oakland--that there is no \"there\" there. Earlier \"theories\" had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents. (2) A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard Model and has started to generate alternatives to the Standard Model. (3) In this brief essay, we critique that part of Yassky's theory dismissing United States v. Miller (4) as providing the basis for an individual rights interpretation of the Second Amendment. In his provocative response to the Standard Model, Yassky argues that, if the dramatic changes to our constitutional regime since the time of the Amendment's drafting are taken into account, the Standard Model proves inadequate. (5) One question that Yassky addresses is why the Supreme Court has continued to underenforce the Amendment, treating it as a \"constitutional pariah, barred from associating with other 'high caste' civil liberties that [the Court] has labored to protect\" (6) in the years since the so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of the late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of the new administrative state, while also being rooted in key New Deal themes [such as Roosevelt's famous \"Four Freedoms\"]; accordingly it revitalized the First Amendment. The court could not, however, envision a similar role for the right to keep and bear arms. (7) This, Yassky argues, is key to understanding what he terms \"the failure of the courts\" to enforce the Amendment and accounts for its virtual repeal at all levels of the federal judiciary. (8) Indicative of this failure is the United States Supreme Court's only case this century squarely addressing the Second Amendment, United States v. Miller. (9) Yassky, however, devotes only a few pages to Miller, a decision he defends only with the observation that the opinion \"says very little.\" (10) What he does say is that \"the Miller opinion... plainly rule[s] out\" what he terms \"the revisionists' Libertarian Approach\" to the Second Amendment. (11) Yassky's reading of Miller is mistaken. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment--the holding ascribed to it by most federal courts since 1939. (12) Yassky's error on ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"14 1","pages":"113-124"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79267786","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 First Amendment in a Time That Tries Men’s Souls","authors":"S. Gellman","doi":"10.2307/1192239","DOIUrl":"https://doi.org/10.2307/1192239","url":null,"abstract":"These are the times that try men's souls. (1) There is no freedom in a land where fear and hate prevail. Isn't this a time? A time to try the soul of men, Isn't this a terrible time? (2) Whether or not First Amendment rights are especially important during a crisis, they are nonetheless especially at risk then: Government requests to suspend civil liberties are always rationalized by \"crisis.\" In the aftermath of the terrorist attacks of September 11, 2001, not only legal scholars, but all Americans, wondered what the civil liberties fallout would be. A particular area of concern was, and still is, the First Amendment protections, especially of speech and press. It seems, though, that the greatest threat to First Amendment liberties may come from unexpected sources. Even before the calendar changed to September 12, civil libertarians right and left expressed concerns that the terrorist attacks might trigger a broad spectrum of restrictions upon individual liberties. The rights of travel and privacy came to mind at once. But it was not long afterward that people began to worry that censorship of speech and press would be imposed as part of a war effort. Loose lips sink ships, after all. Soon after came worries about restrictions of religious expression by Muslims and fears of governmental religious coercion, where patriotic sentiment could become conflated with religious symbols and expression. Commentators of all political stripes warned against panicky restrictions of speech and press rights, often pointing out the irony of restricting American freedoms in an effort to fight an enemy whose disdain for the United States rests in part upon those very freedoms. And then a surprising thing happened: Nothing. Well, not nothing, but significantly less, in the way of government infringement upon civil liberties, than many of us had feared in the dangerous early period. In the first few weeks after the September attacks, Congress gave a stinging rejection to Attorney General John Ashcroft's initial request for expanded snooping and detention powers. Later, the Bush Administration and Congress would adopt dreadful \"antiterrorism\" measures, but at the beginning, the federal government was surprisingly restrained. In fact, officials at all levels of government went out of their way to assure the public that the United States would not \"hand a victory\" to the terrorists by voluntarily restricting the very American freedoms that the terrorists presumably hate and resent. Far from establishing internment camps like those established for Japanese-Americans during World War II, the President immediately cautioned against discrimination against Arabs and Muslims. Nearly every time a public official made a statement in the first few days after the attacks, he or she seemed to feel compelled to add that \"this is not a war against Muslims,\" and that \"Islam does not condone violence\"--the latter being proclaimed whether the speaker knew anything about Islam or not. ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"18 1","pages":"87-102"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81139657","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":"PostCommunist Charters of Rights in Europe and the U.S. Bill of Rights","authors":"W. Sadurski","doi":"10.2307/1192244","DOIUrl":"https://doi.org/10.2307/1192244","url":null,"abstract":"I INTRODUCTION The Bill of Rights of the United States Constitution served as both a model and anti-model (1) for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe (\"CEE\"). The U.S. Bill of Rights served as a model at a general, abstract level, similar to the way in which it provided an example to Western European countries after the Second World War, thereby informing the \"new constitutionalism\" in Europe. (2) In contrast to traditional European constitutionalism, this new approach was influenced by three ideas that had long been commonplace in U.S. constitutionalism. First, a constitution cannot confine its scope to the regulation of the vertical and horizontal separation of powers; it is incomplete without an explicit written statement of citizens' rights that cannot be transgressed by any agent to whom the Constitution applies. (3) Second, the provisions of the constitutional charter of rights apply directly to all state bodies4 regard less of statutory implementation; these constitutional rights are cognizable and enforceable by courts. Third, to be meaningful and truly paramount, constitutional rights should be a basis for declaring subconstitutional provisions invalid in cases of inconsistency. These three principles, whose U.S. pedigree is undisputed, have generally been accepted in the constitutional designs of transitional postcommunist states. (5) The attractiveness of these principles is not surprising: After a period of sham constitutions and charters of rights, constitution-makers in postcommunist countries needed firm doctrinal bases to convince their audiences-societies liberated from authoritarian regimes marked by high degrees of legal and constitutional nihilism--that their democratic and institutional commitments were genuine. Hence the appeal to a conception of constitutional rights that is as robust as possible--with rights having a firm textual anchor, being directly applicable to the people, and overriding lower laws in cases of inconsistency--becomes extremely appealing. Yet the U.S. Bill of Rights is also an anti-model. When it comes to specific provisions of constitutional design as opposed to general, postcommunist constitution-makers have been much more inspired by post-Second World War European (continental) constitutionalism, with the German, French, and Italian constitutions serving as the more obvious prototypes of constitutional rights formulations than the U.S. example. Some reasons for this are obvious: The postcommunist GEE societies have much more in common with regard to tradition, culture, and social structure with Western Europe than with the United States. These similarities naturally extend to constitutional and legal culture as well. One obvious difference between the United States and Western Europe is the relatively low status of, and trust in, the judiciary in Europe, in contrast to the elevated position and prestig","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"223-250"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89607766","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 Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions","authors":"Andrew E. Taslitz","doi":"10.2307/1192242","DOIUrl":"https://doi.org/10.2307/1192242","url":null,"abstract":"I INTRODUCTION On July 3, 2001, the Tampa, Florida, Police Department began using FaceIt, a video surveillance system based on face-recognition software, in Ybor City, a downtown nightilfe district. (1) Three dozen security cameras scanned crowds while the software, using complex mathematical formulas to represent facial features, searched for database matches to the faces of wanted criminals. (2) When no match was found, the scanned image was deleted, a precaution voluntarily undertaken by the system's owner, Visionics Corporation of Jersey City, New Jersey, but not required by law. (3) If a match was found, however, a systems operator would then determine whether there was enough of a match to notify a uniformed officer to investigate .and possibly make an arrest. (4) Signs in the area warned passersby, \"Smart CCTV in use,\" though most interviewed for a news story on the system did not know what the message meant. (5) Meanwhile, the Pentagon is funding a fifty-million dollar initiative to use face-recognition technology a s a means for combating terrorism.6 Informal interviews revealed widely diverging views of the technology among Tampa's citizenry. Many saw it as an invasion of privacy reminiscent of George Orwell's 1984, which predicted a totalitarian future based on constant, state-initiated surveillance of its subjects. (7) Police and local political officials argued that the system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, (8) some staging protests against the FaceIt system. (9) Privacy objections seem to be far more widely shared than this small protest might suggest. The objectors cover the entire political spectrum. House Majority Leader Richard Armey, for example, in asking for a report on federal surveillance spending, had this to say about the subject: The most serious threats to our freedom often advance in small steps. Face recognition systems may one day provide significant benefits in military applications....We are taking a step in the wrong direction if we allow this powerful technology to be 10 turned against citizens who have done no wrong. (10) The American Civil Liberties Union has joined Armey's call for caution, describing the FaceIt system as subjecting the public to a \"digital lineup.\" (11) Others worry that FaceIt and similar systems will be used by government agencies to track and catalogue the movements of innocent citizens, possibly for political reasons. (12) Little, if any, legislation protects against these dangers, yet it is unlikely that the Fourth Amendment to the United States Constitution does either. The wisdom of implementing the system has not yet been subjected to serious democratic deliberation. (13) The FaceIt system represents the tip of the iceberg in the growing potential use of surveillance technologies, including \"ray-gun distance frisks,\" (14) mandatory, nationwide DNA databases covering all United States resi","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"40 1","pages":"125-188"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85451312","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":"“Certain Fundamental Truths”: A Dialectic on Negative and Positive Liberty in Hate-Speech Cases","authors":"W. Wendel","doi":"10.2307/1192238","DOIUrl":"https://doi.org/10.2307/1192238","url":null,"abstract":"I INTRODUTION The following conversation between a civil libertarian and a new-left First Amendment theorist occurred as part of the ABA's conference on the present and future of the Bill of Rights. The discussion was precipitated by the case of Matthew Hale, a white supremacist who--to put it mildly--likes to attract media attention. He set himself up as the leader of a racist \"church\" called the World Church of the Creator, and immediately went about attempting to put an articulate, polite face on the organization, much in the way that David Duke tried to appear less threatening during his run for Congress in Louisiana. But there is only so much window-dressing that Hale can do, since he is obviously a rabid racist. His website contains numerous exhortations to \"racial loyalty\" and \"racial holy war\"; shopworn canards about blacks, Jews, and other ethnic minorities (called the \"mud races\" by Hale); a bizarre theology based on the \"Sixteen Commandments\" and vehement denunciations of Christianity; long-discredited bogus bio logical theories about racial differences; and a boilerplate disclaimer that the group does not condone violence. (1) Hale's little corner of cyberspace is representative of a burgeoning number of websites maintained by white supremacists and other hate groups. (2) The World Church of the Creator site alone contains links to dozens of other racist sites, (3) including those maintained by the Knights of the Ku Klux Klan, the American Nazi Party, and the White Aryan Resistance. But Hale and his organization have certainly established a higher profile than other hate groups on the Internet, particularly with their efforts to market racism to children with a kids' website featuring white-supremacist games and puzzles--fun for the whole family! (4) Hale also happens to be a graduate of Southern Illinois University Law School. Because of the publicity he had managed to attract, Hale's application to become a licensed attorney in Illinois was a media event, and the decision of the character and fitness committee of the Illinois Supreme Court, declining to certify his fitness for admission, generated immediate controversy. (5) Alan Dershowitz offered to represent Hale in his challenge to this order, an offer which, as far as I know, was not taken up. (6) Hale petitioned for review by the Illinois Supreme Court. He was denied, (7) and he then petitioned for certiorari in the U.S. Supreme Court, which he was again denied. (8) The Hale case is important not only to lawyers who represent unpopular applicants for admission to practice law. It has broader significance as a test case for much of the recent theorizing about the application of the First Amendment to hateful expression. Hale's application to practice law also provides a wonderful illustration of how the new left critique of the First Amendment would play out in practice, since the Illinois bar committee swallowed the new left position hook, line, and sinker. The committee emphas","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"55 1","pages":"33-86"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86260966","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":"Rights in Conflict: The First Amendment’s Third Century","authors":"R. O'neil","doi":"10.2307/1192237","DOIUrl":"https://doi.org/10.2307/1192237","url":null,"abstract":"I INTRODUCTION Over the past four decades of teaching and studying First Amendment law, I have witnessed the resolution, or at least the clarification, of many free speech and press issues. There are, however, persistent issues--those elusive or intractable tensions between free expression and other basic human liberties--that deserve particularly close scrutiny. Three such issues occasion this article: tensions between free expression and privacy, civility, and equality. Examples of each tension abound: Can an aggressive reporter or photographer be barred from using high-tech tools such as infrared cameras and parabolic microphones to gather images and conversations through the walls of a house or office? Can a person be jailed for cursing and using vulgar four-letter words in public? Can \"hate speech\" be curbed on a college campus to protect vulnerable groups in society? It should be simple to answer such questions, but instead is exceedingly difficult because of a deep national ambivalence toward the proper balance betwe en free expression and other values. As a nation, we are equally committed to freedom of speech and to those basic values of privacy, civility and equality. We expect the courts to strike the proper balance, to resolve these tensions in ways that will permit us to preserve (and our laws to serve) both sets of values equally well. When the courts fail or falter in this effort, we are deeply disappointed. We expect judges to discover or devise paths of reconciliation, even though they have eluded the rest of us. In the three areas of tension on which this article focuses, the courts have been notably unsuccessful and a breakthrough appears unlikely. Perhaps we should simply acknowledge that resolution of these issues is not possible and that we must accept certain intractable tensions within our First Amendment jurisprudence. Maybe, indeed, we should even be grateful that so few truly irreconcilable conflicts exist. II PRIVACY: WILL THE TRUTH \"SET YOU FREE\"? In an ideal system, the legal import of truth would be unmistakably clear. Factual correctness would either provide a complete defense to any claim for invasion of privacy or be legally irrelevant. The courts of this country have, however, been curiously ambivalent about the relationship between privacy and truth. Even individual Supreme Court Justices may fairly be accused of vacillation. One might easily forget that Justice Louis D. Brandeis, who late in his career framed the case for maximum freedom of expression most eloquently, (1) had as a young lawyer written the seminal article first advancing the rationale for imposing legal liability on those whose publication of unwelcome truth invaded the privacy of others. (2) Such inconsistency has persisted in ways that underscore the inherent difficulty of the issue. The Supreme Court has consistently declined to recognize truth as an absolute defense when reviewing criminal or civil judgments against those who have published","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"57 1","pages":"7-32"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76858858","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":"Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age","authors":"Carol M. Rose","doi":"10.2139/SSRN.293142","DOIUrl":"https://doi.org/10.2139/SSRN.293142","url":null,"abstract":"What arguments make a case for the public domain in intellectual achievements? The arguments for private property in intellectual matters are rather thinner than the corresponding arguments for private property arguments for tangible things. Hence if there is a case for \"publicness\" even with tangible property, one would expect that case to be doubly powerful for intellectual achievements, where the private property rationale is weaker. This paper looks to the Roman law categories of publicness for tangible property, and finds analogies between certain types of tangible properties and intellectual endeavors. Though the Roman law of public property was sketchy, it was based on several different and quite subtle sets of reasons. Some things are public because they are appropriable but have not yet been reduced to possession (res nullius); some because like the air mantel they are physically incapable of privatization (res communes); some like roads and waterways because they serve network effects (res publicae); some - perhaps most interestingly - because they are sacred (res divini juris). This paper argues that intellectual property law effectively takes matters like expressions or inventions, which are physically incapable of individual ownership (res communes) and turns them into appropriable property (res nullius). But it also argues that the ultimate goal of this body of law is that intellectual endeavors over time become available to the public (res publicae) because of the positive networking effects from the easy exchange of ideas. The article concludes by noting that some iconic intellectual endeavors - notable the \"canon\" - become public for quasi-sacral reasons, as in the Roman law category of res divini juris.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"89-110"},"PeriodicalIF":0.0,"publicationDate":"2002-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89986235","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":"Good Enough for Government Work: The Constitutional Duty to Preserve Forensic Interviews of Child Victims","authors":"L. Mcgough","doi":"10.2307/1192370","DOIUrl":"https://doi.org/10.2307/1192370","url":null,"abstract":"Lucy S. McGough (*) I INTRODUCTION In a Memphis, Tennessee day-care abuse investigation, police investigators made videotapes of their interviews with young alleged victims. As might be expected, some of the children gave inconsistent accounts. (1) Quite unexpected, even shocking, is the fact that, after reviewing the interviews, an assistant attorney instructed the investigators to destroy the tapes so that they would not be available for discovery. (2) No verbatim transcripts were made, and the tapes were reused for other investigations. The Tennessee Supreme Court held that such behavior constituted willful prosecutorial misconduct in violation of Brady v. Maryland, (3) which requires disclosure of exculpatory evidence, that is, evidence that tends to support a claim of innocence. (4) In reversing the conviction and remanding for a new trial, the court barred the use of the children's videotaped interviews as proxy witnesses on retrial. (5) Any prosecutor concerned with controlling the flow of evidence would quickly appreciate the lesson of this Tennessee case: Destruction of a record is verboten, but if no record is ever made, there is nothing to disclose. Can the Constitution be so easily sidestepped? Is there a constitutional duty cast upon a prosecutor to preserve evidence, that is, to videotape a forensic interview of a child? This article proceeds with confidence on the premise that a forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise. (6) Furthermore, there are so many additional advantages from videotaping for the administration of the criminal justice system, far outweighing any suggested disadvantages, that videotaping of forensic interviews of children should become standard operating practice. But, as this article reveals, videotaping is not universally required, and, indeed, off-the-record forensic interviews of children continue to be tolerated as \"good enough for government work.\" Part II of this article presents a brief overview of the practice of videotaping forensic interviews of child victims. Part III explores the Supreme Court's evidence preservation cases and the contours of the prosecution's duties under the Due Process Clause. Part IV analyzes the nature of forensic interviewing and argues that even under the Court's current narrow interpretation of an accused's entitlements, videotaping is constitutionally mandated by fundamental fairness under the Due Process Clause. II THE PRACTICE AND BENEFITS OF VIDEOTAPING As the term is used in this article, \"forensic\" evidence is, to some degree, malleable in that it is evidence that the state can shape, as opposed to prevenient and fixed evidence that the state has collected. (7) A forensic interv","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"28 1","pages":"179-208"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90330835","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}