Minnesota Law Review最新文献

{"title":"A Moral and Legal Imperative to Act: The Bail Bond Industry, Consumer Protection, and Public Enforcers","authors":"Brandie Burris","doi":"10.24926/265535.4360","DOIUrl":"https://doi.org/10.24926/265535.4360","url":null,"abstract":"Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access to comparative information, employ contracts with terms unreasonably favorable to the company’s interests, and conceal extreme contract terms in confusing legal jargon. As a result, common bail industry practices trap consumers in debt cycles under unconscionable bail bond contracts simply because families cannot afford the cash bail payment needed to maintain their loved ones’ pretrial freedom. For decades, the bail industry’s forceful lobbying tactics have largely blocked legislation seeking to regulate the industry or eradicate it entirely. The industry’s well-financed lobbying campaigns succeed by framing and distorting public perception to ensure harmed consumers are viewed narrowly as dangerous or likely guilty “bad guys” while bail agencies are viewed as “heroes” or scrappy small businesses surviving on thin margins in service of greater civic and public safety aims. It is under this enduring narrative that the for-profit bail bond industry has marched itself into its current reality: an underregulated and nearly risk proof industry which amasses an estimated $2 billion in profits annually by subjecting American consumers to physical, emotional, and financial harm. This Note argues state laws prohibiting unfair or deceptive acts or practices provide a powerful path to curb bail industry abuses; however, private litigation alone is an incomplete solution. Public enforcers like state attorneys general are well-suited to bolster recent private litigation efforts to regulate and control bail industry abuses at a systemic level. This Note concludes state attorneys general hold both a moral imperative and the legal authority to investigate and litigate consumer abuses perpetuated by bail bond companies under a consumer protection legal theory.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"106 3","pages":"1533-1533"},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147900068","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":"The Sound and Fury of Patent Activity","authors":"Robin C. Feldman, Mark A. Lemley","doi":"10.2139/SSRN.3195988","DOIUrl":"https://doi.org/10.2139/SSRN.3195988","url":null,"abstract":"Patent reform is a hotly contested issue, occupying the attention of Congress, the Supreme Court, and many of the most innovative companies in the world. Most of that dispute centers on patent enforcement, and in particular on the role of non-practicing entities (NPEs) or “patent trolls” – companies that don’t themselves make products but sue those that do. To technology companies, NPEs are a drag on innovation, taxing them tens of billions of dollars every year while achieving no social purpose. To NPEs and their supporters, they are enabling the first inventor to get paid and creating a working market for the transfer of technology. \u0000 \u0000Which is it? \u0000 \u0000In this paper, we present the first full empirical study of the effect of patent licensing demands on the economy. With the help of a National Science Foundation grant and experts in survey design, we sent our survey out to every US-based business with at least one employee and revenue of $1 million or more – over 45,000 companies. Our results provide important insights into the nature and limits of patent licensing demands and their role (or lack thereof) in driving innovation. \u0000 \u0000We find that NPE licensing demands almost never lead to innovation by the target firm. None of the indicia we would expect of real technology transfer were common in patent licensing demands. Moreover, NPE demands were particularly unlikely to be accompanied by the sharing of know-how or employees, the creation of joint ventures, or the development of new products. \u0000 \u0000NPEs do not seem to be a monolithic group. The results for certain types of NPEs were more promising. Federal labs that assert patents are the group most likely to transfer knowledge or drive new products when they license patents. University patent demands are more likely to drive innovation than demands by other sorts of NPEs, but most of them still don’t involve any indicia of technology transfer. We also find that the patent system works differently in different industries. Patent licensing demands almost never result in technology transfer or new innovation in the computer industry, particularly when NPEs are doing the asserting. They are somewhat more likely to be productive in the life sciences, but it is areas like energy that see the most new products resulting from patent assertions. \u0000 \u0000Finally, and perhaps most important in the long run, a significant majority of respondents simply didn’t face patent licensing demands at all. It is true that those companies may be smaller and less innovative than the ones that do face licensing demands. But given the raging debates over the patent system and its role in driving the economy, it is important to recognize that there are large swaths of American business that simply don't deal with patent licensing demands at all.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"103 1","pages":"1793"},"PeriodicalIF":1.3,"publicationDate":"2018-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3195988","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48363240","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":"Congress's Agency Coordination","authors":"Bijal Shah","doi":"10.2139/SSRN.3112844","DOIUrl":"https://doi.org/10.2139/SSRN.3112844","url":null,"abstract":"Coordination is a mechanism for administrative control. Indeed, it is well-known that the President and agencies themselves initiate it for a variety of substantive and self-interested reasons. This Article is the first to establish that Congress also creates frameworks of interagency coordination, and it bases this contention in the largest collection to date of statutes and legislative history detailing coordination requirements for federal agencies in several regulatory areas across the executive branch. By uncovering coordination legislation, which fosters an unexamined but pervasive relationship between Congress and agencies, this Article contributes to the fundamental debate regarding which political branch has sovereignty over the administrative state. \u0000 \u0000Comprehensive analysis of this original legislative dataset illustrates that statute-based administrative coordination compels agencies to engage autonomously to more effectively further legislative priorities across the executive branch. This layered dynamic is evidenced by the main qualities of most coordination legislation: first, that it is both hierarchical and expansive, thus empowering agencies favored by Congress to structure coordination with significant discretion; and second, that it is mandatory, thus giving the legislature ultimate control over the implementation of statute-based interagency coordination. Coordination legislation may be driven by many of the same incentives that motivate the President’s initiation of administrative coordination, as well as some that are unique to the legislature, including the goal of limiting politicized executive influence on agencies’ implementation of the law. \u0000 \u0000In general, the goals of statute-based coordination would benefit from the incubation of agency autonomy. Accordingly, this Article argues, coordination legislation empowers agencies to interact independently — that is, without direction from the President. For this reason, however, coordination legislation also challenges our expectations of executive hierarchy. More specifically, coordination legislation may muddy lines of executive accountability and imbue executive agencies with several qualities of independent regulatory commissions that increase their insulation from the Executive. Therefore, statute-based coordination has the potential to interfere with the President’s role as administrator-in-chief, unless it is circumscribed by executive oversight or, better still for legislative purposes, ex ante presidential involvement in interagency coordination.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"103 1","pages":"1961-2093"},"PeriodicalIF":1.3,"publicationDate":"2018-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44352052","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":"Strengthening Cybersecurity with Cyber Insurance Markets and Better Risk Assessment","authors":"J. Kesan, C. Hayes","doi":"10.2139/SSRN.2924854","DOIUrl":"https://doi.org/10.2139/SSRN.2924854","url":null,"abstract":"Cybersecurity is an increasingly important element of infrastructure and commerce. Courts are starting to shape the doctrine of third party liability for cyberattacks and data breaches. For businesses that rely on computers and the Internet, these developments affect their bottom line. There is a lot of interest in managing these emerging cyber risks and associated cyber losses, and many companies are looking to insurance policies for coverage. \u0000Unfortunately, commercial general liability policies are becoming narrower as insurers increasingly remove electronic data from the scope of coverage. Cyber insurance is becoming increasingly available, but the market for these policies is plagued by informational asymmetries, data scarcity, and high potential for moral hazard problems. \u0000In this article, we examine insurance as a risk management tool in the cybersecurity context, with special emphasis on the emerging market for cyber insurance and how to overcome the dangers to this market’s effectiveness and growth through better risk assessment. In order to understand the legal risk in policy coverage, we present an empirical study and findings regarding litigation concerning insurance coverage for cyber harms involving intangible property, digital data, and cybersecurity. Our work emphasizes the need for developing cyber-specific insurance products, instead of relying on commercial general liability (CGL) policies to cover cyber losses. We urge that collaboration between the government and private sector will be necessary to better estimate the technological risk in this cyber environment for insurance purposes. We also analogize the cyber insurance market to the Workers’ Compensation system and the National Flood Insurance Program (NFIP) and analyze the lessons that can be drawn from them.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"102 1","pages":"191-276"},"PeriodicalIF":1.3,"publicationDate":"2017-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2924854","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44669775","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 Close-Up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty","authors":"V. Amar, Alan E. Brownstein","doi":"10.2139/SSRN.3008937","DOIUrl":"https://doi.org/10.2139/SSRN.3008937","url":null,"abstract":"Like many other terms bandied about these days, “academic freedom” is something that means different things to different people, and for that reason is often misunderstood. In this Article, we focus on what, if any, special freedoms of expression are enjoyed under the First Amendment to the U.S. Constitution by students and faculty members at any of the nation’s hundreds of public universities. Analyzing key Supreme Court precedent over the last generation, and the way these cases play out in prominent recent disputes — many of which have been litigated extensively in the lower courts — we conclude that while the First Amendment affords significant protections for expression insofar as public higher educational institutions can be likened to municipalities for some purposes, university administrators have a fair degree of control over speech that can be said to be connected directly to the research, classroom teaching, and extracurricular activities that make up the heart of modern university experience. Particularly as to faculty, First Amendment freedoms may be less than many people assume; in some respects (because of the nature of their public jobs), public university faculty may enjoy less expressive latitude than non-academic employees. \u0000There are, of course, sources of support for free speech beyond the First Amendment — such as institutional tradition and policy, state law, contract law, federal due process, and public subsidy. To the extent that advocates want more — rather than less — expressive freedom for students and faculty at universities because of the special role such institutions fill in society, those non-First-Amendment sources may prove more helpful than First Amendment doctrine.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"101 1","pages":"1943-1985"},"PeriodicalIF":1.3,"publicationDate":"2017-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43440030","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":"Civil Rules Interpretive Theory","authors":"Lumen N. Mulligan, G. Staszewski","doi":"10.2139/SSRN.2814194","DOIUrl":"https://doi.org/10.2139/SSRN.2814194","url":null,"abstract":"We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"101 1","pages":"2167"},"PeriodicalIF":1.3,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68344678","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":"What Legal Authority Does the Fed Need During a Financial Crisis","authors":"E. Posner","doi":"10.2139/SSRN.2723524","DOIUrl":"https://doi.org/10.2139/SSRN.2723524","url":null,"abstract":"The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"101 1","pages":"1529"},"PeriodicalIF":1.3,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68274516","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":"Anthony Amsterdam's Perspectives on the Fourth Amendment, and What It Teaches About the Good and Bad in Rodriguez V. United States","authors":"Tracey Maclin","doi":"10.24926/265535.1119","DOIUrl":"https://doi.org/10.24926/265535.1119","url":null,"abstract":"Anthony Amsterdam’s article, Perspectives On The Fourth Amendment is one of the best, if not the best, law review article written on the Fourth Amendment. Thus, Minnesota Law Review on its hundredth anniversary fittingly recognizes and honors Professor Amsterdam’s article in its Symposium edition, “Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review.” I am flattered that the Law Review invited me to participate in this Symposium./=\"/\">/=\"/\">Specifically, my article connects two perspectives from Amsterdam’s article — the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar arbitrary and ruleless searches and seizures — to an aspect of modern American society that affects millions of people: traffic stops by the police. This past Term, the Supreme Court decided Rodriguez v. United States. At issue was whether the Fourth Amendment “tolerates a dog sniff conducted after the completion of a traffic stop.” The Court, in a 6-3 ruling, held that “a police stop exceeding the time needed to handle the matter for which the stop was made” violates the Fourth Amendment. While certainly a temporary victory for Mr. Rodriguez, I submit that Rodriguez is a vexing decision on several fronts. As I will explain, Rodriguez is a significant ruling because it rejects the argument that police can prolong a traffic stop to pursue a drug investigation. At the same time, however, Rodriguez blesses two troublesome investigative techniques that have been utilized in the country’s seemingly never-ending “War on Drugs” and that are, in my view, inconsistent with Fourth Amendment freedoms and contrary to Professor Amsterdam’s insights on the amendment./=\"/\">/=\"/\">Rodriguez v. United States explained that the Fourth Amendment tolerates certain unrelated investigations that do not lengthen a roadside detention. Rodriguez’s endorsement of police questioning was unnecessary and regrettable. It was gratuitous because the issue before the Court — whether police can detain a motorist to use a drug-sniffing canine after the completion of a traffic stop — had nothing to do with unrelated questioning during a traffic stop. The Court’s comments were lamentable for two reasons. First, the practice of questioning motorists about matters unrelated to the traffic stop is inconsistent with the same legal framework the Court relied upon to invalidate the detention and dog sniff at issue in Rodriguez. Second, there was no reason for the Court to provide its imprimatur on a criminal investigative technique that police regularly use to arbitrarily interrogate motorists during routine traffic stops./=\"/\">/=\"/\">On a deeper level, Rodriguez’s dicta about police questioning during traffic stops is disappointing for its failure to appreciate the fundamental value of the Fourth Amendment. As Professor Amsterdam has taught us, “the fourth amendment is quintessentially a regulation of the police – that, in e","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"100 5","pages":"1939-1939"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://scholarship.law.umn.edu/mlr/219","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147895482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unpacking Patent Assertion Entities (PAEs)","authors":"C. Cotropia, J. Kesan, David L. Schwartz","doi":"10.2139/SSRN.2346381","DOIUrl":"https://doi.org/10.2139/SSRN.2346381","url":null,"abstract":"There is tremendous interest in a certain type of patent litigant — the often-called non-practicing entity (\"NPE\"), patent assertion entity (\"PAE\"), patent monetization entity (\"PME\"), or simply patent troll. These NPEs are the subject of a recent GAO report, a possible FTC investigation, pending legislation before Congress, and even comments from the President of the United States. All of this commentary and activity centers on whether NPE participation in patent litigation, and the patent system in general, is detrimental or beneficial to society. But the fundamental barrier to understanding the current debate is the lack of granular and transparent data on NPE litigation behavior. Accordingly, we personally hand-coded all patent holder litigants from calendar years 2010 and 2012, and we are releasing this data to the public. In our coding, we drill down and finely classify the nature of the litigants beyond the simple NPE or non-NPE definitions. Releasing this data to the public that unpacks the definition of NPE can provide better illumination to policy makers, researchers, and others interested in the patent litigation system. The data reveals a much lower percentage of litigation brought by patent holding companies than other studies, finding no explosion in NPE litigation between 2010 and 2012. Instead, we find that most differences between the years — an increase in the number of patent holding companies and individual inventor suits — is likely explained by a change in the joinder rules adopted in 2011 as part of the America Invents Act.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"99 1","pages":"649-703"},"PeriodicalIF":1.3,"publicationDate":"2014-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2346381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68127826","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":"SlutWalking in the Shadow of the Law","authors":"Deborah Tuerkheimer","doi":"10.2139/SSRN.2009541","DOIUrl":"https://doi.org/10.2139/SSRN.2009541","url":null,"abstract":"This Article examines the convergence of two seemingly contradictory developments. One is the widespread rape of women by acquaintances, dates, and intimates, mostly without legal recourse. The other is the emergence of a generation of women who embrace a pro-sex orientation and define their sexualities accordingly. To date, legal theorists have failed to reconcile this move toward sex positivity with the ubiquity of non-stranger rape. SlutWalk – the global grassroots initiative that protests rape by embracing sex – provides a vehicle for first exploring tensions that arise when sexual agency is asserted against a backdrop of pervasive sexual violation. On analysis, sexual agency must be reconceived, which in turn exposes new perspectives on rape law and informs the next phase of reform.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"98 1","pages":"1453-1511"},"PeriodicalIF":1.3,"publicationDate":"2014-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847898","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}