Boston University Law Review最新文献

{"title":"The Power of Insults","authors":"R. Colker","doi":"10.2139/ssrn.3535975","DOIUrl":"https://doi.org/10.2139/ssrn.3535975","url":null,"abstract":"Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better  Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University. I would like to thank the Center for Law, Policy, and Social Science at The Ohio State University for its generous support of this project. I would like to thank attorney and disability activist Amy Robertson for bringing this problem to my attention and helping me find examples. I would also like to thank my Moritz research assistants: MacKenzie Boyd, Stacey Dettwiller, Emily Durell, Kelsie Hendren, and Lindsey Woods. This Article has also benefited from feedback from Amna Akbar, Amy Cohen, Rosalind Dixon, Doron Dorfman, Jasmine Harris, David Levine, Arlene Mayerson, Courtlyn Roser-Jones, Marc Spindelman, and Dan Tokaji, as well as the participants at the 2019 AALS Disability Law Panel, 2019 Berkeley Center for the Study of Law and Society Workshop, 2019 Moritz Faculty Workshop, and 2019 University of New South Wales Faculty Workshop. Finally, this Article has benefited from the research assistance of Stephanie Ziegler of the Moritz Law Library and the secretarial assistance of Allyson Hennelly. 2 BOSTON UNIVERSITY LAW REVIEW [Vol. 100:1 able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down. 2020] THE POWER OF INSULTS 3","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Death of a Copyright","authors":"Paul R. Gugliuzza","doi":"10.2139/ssrn.3524899","DOIUrl":"https://doi.org/10.2139/ssrn.3524899","url":null,"abstract":"","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68602553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is patent enforcement efficient?","authors":"Mark A. Lemley, Robin C. Feldman","doi":"10.4337/9781788116633.00025","DOIUrl":"https://doi.org/10.4337/9781788116633.00025","url":null,"abstract":"Traditional justifications for patents are all based on direct or indirect contribution to the creation of new products. Patents serve the social interest if they provide not just invention, but innovation the world would not otherwise have. Non-practicing entities (“NPEs”) as well as product-producing companies can sometimes provide such innovation, either directly, through working the patent or transferring technology to others who do, or indirectly, when others copy the patented innovation. The available evidence suggests, however, that patent licensing demands and lawsuits from NPEs are normally not cases that involve any of these activities. \u0000 \u0000Some scholars have argued that patents can be valuable even without technology transfer because the ability to exclude others from the market may drive commercialization that would not otherwise occur. We demonstrate that even if various commercialization theories can sometimes justify patent protection, they cannot justify most NPE lawsuits or licensing demands.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2018-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46526533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Government of Laws and Not of Machines","authors":"E. Berman","doi":"10.2139/SSRN.3098995","DOIUrl":"https://doi.org/10.2139/SSRN.3098995","url":null,"abstract":"The technological tool du jour is known as “machine learning,” a powerful form of data mining that uses mathematical algorithms to construct computer models that provide hidden insights by extracting patterns from enormous historical data sets, often for the purpose of making predictions about the future. Machine learning is all around us — it is used for spam filters, facial recognition, the detection of bank fraud and much more — and it is immensely powerful. It can analyze enormous amounts of information and extract relationships in the data that no human would ever discover. Despite its promise, there are reasons to remain skeptical of using machine learning predictions. Existing critiques of machine learning usually focus on one of two types of concerns — one identifies and aims to address the many potential pitfalls that might result in inaccurate models and the other assesses machine learning’s consistency with norms such as transparency, accountability, and due process. This paper takes a step back from the nuts and bolts questions surrounding the implementation of predictive analytics to consider whether and when it is appropriate to use machine learning to make government decisions in the contexts of national security and law enforcement. It argues that certain characteristics of machine-learning generate tensions with rule-of-law principles and that, as a result, machine-learning predictions can be valuable instruments in some decision-making contexts but constitute a threat to fundamental values in others. The paper concludes that government actors should exploit the benefits of machine learning when they enjoy broad decision-making discretion in making decisions, while eschewing it when government discretion is highly constrained.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2018-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3098995","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45944462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Civilizing Criminal Settlements","authors":"Russell M. Gold, Carissa Byrne Hessick, F. A. Hessick","doi":"10.2139/SSRN.2944152","DOIUrl":"https://doi.org/10.2139/SSRN.2944152","url":null,"abstract":"INTRODUCTIONMost cases today are resolved by settlement. Studies suggest that over ninety percent of criminal and civil cases settle before trial.1 This high rate of settlement is necessary, it is often said, to avoid overwhelming the judicial system.Although settlements are the norm in both the criminal and civil systems, the two systems facilitate settlements in extremely different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.3 Multiple statutes create different crimes for similar misconduct, and the prosecutor has the power to pick which charges to bring against a defendant.4 Moreover, the sentences prescribed for defendants who are convicted after trial are extremely high. These high penalties are, in some instances, legislatively designed to impose the appropriate punishment only when discounted for guilty pleas. Accordingly, a prosecutor seeking to secure a guilty plea may exert significant pressure on a defendant to enter the plea by charging the defendant with an array of crimes with high sentences, and then offering to reduce or dismiss various charges in exchange for a defendant waiving her right to a trial and all of the procedural protections associated with that trial. These advantages give prosecutors the ability virtually to force defendants to enter into plea bargains.The civil system facilitates settlement in a very different way.5 It does not seek to induce settlements by giving the plaintiffthe power to recover disproportionate damages upon a jury verdict. With few exceptions, plaintiffs may recover only compensation for their harms. Instead of handing one side a bludgeon, the civil system encourages settlement through various procedures. Some of these procedures, such as rules requiring alternative dispute resolution, directly encourage settlement. Others, such as motions for summary judgment and pretrial conferences, facilitate settlement more indirectly. They do so in at least four ways. First, they improve the parties' access to information about their adversaries' case to allow for more informed bargaining. Second, they provide opportunities for the judge or another neutral arbiter to preview her view of the merits to help debias the parties' views of their case. Third, they increase the costs of litigation such that avoiding further procedure saves money for both sides and creates a bargaining range. Fourth, they create moments in which attorneys from both sides simultaneously focus on the case. In addition to facilitating settlements, these procedures help avoid trials by screening out meritless cases, thereby alleviating pressure on defendants to settle the \"wrong\" cases.The criminal system does not have similar procedures. Most jurisdictions provide no procedures, such as arbitration or mediation, to encourage or facilitate plea bargaining.6 To the contrary, many jurisdictions, including the federal sy","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2017-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46961625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Particularly Serious Exception to the Categorical Approach","authors":"F. Marouf","doi":"10.2139/SSRN.2989913","DOIUrl":"https://doi.org/10.2139/SSRN.2989913","url":null,"abstract":"IntroductionUnder the Immigration and Nationality Act (\"INA\"), a noncitizen facing deportation who demonstrates a greater than fifty percent chance of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible for a form of relief called \"withholding of removal.\"1 The Refugee Act of 1980 incorporated withholding of removal into the INA in order to comply with the international obligation of nonrefoulement under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the \"Refugee Convention\" and the \"Protocol,\" respectively).2 This obligation prohibits the United States from sending someone to a country where her life or freedom would be threatened.3 There are, however, certain exceptions to this prohibition. If it is determined that \"the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States,\" then the person is barred from withholding of removal and ordered deported despite a potentially serious risk of persecution or death.4 This statutory provision mirrors the language of the Refugee Convention and is commonly known as the \"particularly serious crime\" bar.5The test currently used by the Board of Immigration Appeals (\"BIA\") to determine whether the particularly serious crime bar applies combines an examination of the elements of a crime with an inquiry into some of the individualized facts.6 This approach is inconsistent with the categorical approach for analyzing convictions, which focuses on the elements of the crime. Several recent Supreme Court decisions have addressed the categorical approach, clarifying various splits among the courts of appeals regarding how this approach should be applied and emphasizing the importance of the statutory term \"convicted\" in triggering a categorical analysis.7 In light of these decisions, an April 2015 opinion by Attorney General Eric Holder vacated an earlier decision by Attorney General Michael Mukasey that had permitted departures from the categorical approach for crimes involving moral turpitude (\"CIMTs\"); CIMTs are both a ground of deportability and a bar to certain forms of relief from removal under the INA.8 The new opinion underscores that the word \"convicted\" requires examining the elements of a crime rather than the underlying facts.9This Article argues that the categorical approach should also be applied to the particularly serious crime bar, which uses the word \"convicted\" but, strikingly, has never been subject to this analysis. The BIA has stated in dicta that the categorical approach does not apply to the particularly serious crime determination because the latter is discretionary.10 Yet appellate courts have not consistently treated this determination as discretionary, nor have most of them explicitly addressed the question of whether the statutory language requires a cate","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49223976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Resurrecting Miranda's Right to Counsel","authors":"David Rossman","doi":"10.2139/SSRN.2970526","DOIUrl":"https://doi.org/10.2139/SSRN.2970526","url":null,"abstract":"IntroductionThe pedantic policeman's Miranda warning:OK. Listen up. I am going to read you your rights. You have the right to remain silent.1 Anything you say can be used against you.2 You have the right to an attorney.3 If you can't afford one, an attorney will be appointed for you.4Now that I've told you what the Supreme Court says I have to say, let me tell you what it really means.That right to silence I told you about, it's not exactly what it seems. It's true that I can't force you to talk. And it's certainly true that anything you say can be used against you. But not much else about it is really what it seems.For starters, I can keep asking you questions until you do make a statement.5 Unless you make it absolutely clear that you want to remain silent, by words and not by actions, nothing prevents me from keeping it up and getting you to say something that we can use in court.6 And you know what, even if you're absolutely clear about wanting to assert this socalled right to silence, I don't have to listen to you.7 I can keep on trying to get you to make a damaging statement, and according to the Supreme Court, I will have done nothing wrong.8 So long as the prosecutor doesn't use the statement itself, I will still be on the right side of the Constitution. Why would I do that? Because, even though you tried to assert your \"right to silence,\" if I ignore you and get you to tell me something that provides a lead to evidence I can use against you or the name of a person who can testify against you, I can build up my case and use what I found in court.9 Plus-and this is the icing on the cake-even if I ignore your clear and unequivocal statement that you want to remain silent and keep asking questions that finally gets you to say something useful to me, the jury will learn about your statement if you take the stand and testify in your own defense.10And if you feel a little let down because the right to silence isn't quite what it seems, boy, wait until I spell out what the right to an attorney means. The first thing I want you to know is that, just like with the right to silence, this so-called right to an attorney won't even come into play unless you are unequivocally clear about what you want.11 And even if you have the presence of mind to come out with that kind of clear statement, I can ignore what you say, just like with the right to silence.12 Yeah, if I do ignore you and keep on questioning you, we can use whatever you say if you take the stand later,13 and we can use any leads you give us to find other evidence that can be introduced at trial.14But that's not the best part about this so-called right to an attorney. Even if you make one of those clear requests for a lawyer that most suspects find so hard to make, you will never, ever get an attorney to talk to you as part of a police interrogation. The best that will happen is that we'll stop questioning you, at least until you bring up the topic of our interrogation again, at which point","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2017-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44386374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Divorce All the Way Down: Local Voice and Family Law's Democratic Deficit","authors":"Sean Williams","doi":"10.2139/SSRN.2955198","DOIUrl":"https://doi.org/10.2139/SSRN.2955198","url":null,"abstract":"Elections for local judges are parodies of democracy, and yet family court judges are tasked with making a series of value judgments in the course of exercising their broad discretion. Those idiosyncratic value judgments determine who gets custody and under what conditions. They determine who deserves more of the marital property and how much of it there is. Over the last thirty-five years, reformers have asked state legislators and appellate courts to cabin judicial discretion by imposing top-down rules that govern these issues. These reforms have uniformly failed. This Article outlines a reform strategy that is novel along two dimensions. First, it turns the attention of reformers downward, not upward. The future of family law reform is local. Second, it introduces family law reformers to a new space along the rules-standards continuum: rules of thumb. Although each of these two innovations — localism and rules of thumb — could be pursued independently, the combination yields important synergies. Empowering cities and school boards to weigh in on family law issues provides them with a new and muscular voice that can amplify the impact of communities that are excluded from existing power structures at the state level. Local influence over family law also generates much-needed policy experiments, creates new opportunities for expressive sorting, and has the potential to reinvigorate citizen engagement with local politics. Channeling this influence through local rules of thumb eliminates over and under inclusion problems and significantly mitigates fears that local politicians will be able to oppress local minorities.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2017-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2955198","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47988751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transparency and Truth during Custodial Interrogations and Beyond","authors":"S. Klein","doi":"10.2139/SSRN.2907069","DOIUrl":"https://doi.org/10.2139/SSRN.2907069","url":null,"abstract":"My goal in this symposium is not to disrespect the Warren Court Revolution. The Court's constitutionalization of the rules of criminal procedure during the 1960s were quite clearly necessary at the time they were imposed, in large measure to end the miserably unjust treatment of African Americans living in the South, and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three most famous and important decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio was critical in persuading peace officers to learn about and then protect Fourth Amendment values; the Miranda v. Arizona warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging uncompelled confessions, and the right to counsel offered in Gideon v. Wainwright was essential to separating guilty from innocent defendants. Unfortunately, and perhaps somewhat ironically, doctrine concerning the Fourth and Fifth Amendments have been contorted in their definitions and subject to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. They have come to contribute to and in fact embody the now unnecessarily adversarial and deceptive nature of many citizen-peace officer encounters. \u0000The upshot of our last fifty years of constitutional criminal procedure rules combined with certain historical events I describe below is that some citizens and law enforcement may view each other as the enemy. This is not useful to law enforcement's primary purpose of protecting us from harm and separating the innocent from the guilty. What are we to do with such a messy and quite frankly depressing state of affairs? At this juncture, it might be preferable to shape rules that are less adversarial and more inquisitorial. It certainly would be an improvement to announce transparent rules. Rather than having decision rules for cases and conduct rules for officers, we need one set of clear and well publicized rules that everyone knows and follows. And that set of rules need not be the same in every jurisdiction, so long as what officers tell citizens is the truth. \u0000Confining my remaining comments to the fifth amendment context, in Part II, I argue that the Miranda warnings, regardless of their intent and effect at the time, have become perverse and ought to be retired for five reasons. (1) They are false and deceptive. (2) They assist primarily guilty recividists and the wealthy, all other suspects waive their rights. (3) They fail to achieve either of their stated goals of \"adequately and effectively\" apprising suspects of their rights and regulating police conduct. Instead, suspects are confused and deceived, and the fact that the Miranda warnings were read essentially guarantees that any subsequent statements are admissib","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2017-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2907069","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48185033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Un)Reasonable Royalties","authors":"M. Risch","doi":"10.2139/SSRN.2884387","DOIUrl":"https://doi.org/10.2139/SSRN.2884387","url":null,"abstract":"Though reasonable royalty damages are ubiquitous in patent litigation, they are only one-hundred years old. But in that time they have become deeply misunderstood. This Article returns to the development and origins of reasonable royalties, exploring both why and how courts originally assessed them.It then turns a harsh eye toward all that we think we know about reasonable royalties. No current belief is safe from criticism, from easy targets such as the 25% “rule of thumb” to fundamental dogma such as the hypothetical negotiation. In short, the Article concludes that we are doing it wrong, and have been for some time.This Article is agnostic as to outcome; departure from traditional methods can and has led to both over- and under-compensation. But it challenges those who support departure from historic norms—all the while citing cases from the same time period—to justify new rules, many of which fail any economic justification.","PeriodicalId":47323,"journal":{"name":"Boston University Law Review","volume":null,"pages":null},"PeriodicalIF":1.7,"publicationDate":"2016-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68416806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}