Minnesota Law Review最新文献

{"title":"Disclosing Big Data","authors":"Michael Mattioli","doi":"10.2139/SSRN.2358985","DOIUrl":"https://doi.org/10.2139/SSRN.2358985","url":null,"abstract":"This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries — from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in order to serve the goal of promoting progress. Beyond this general concern, the nondisclosure of big data practices threatens innovation in unique ways that are particularly insidious. The cause of this problem, and possibly its resolution, lies in the interplay between big data and intellectual property law — a nexus that scholars have not explored until now.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2014-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137937","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 Constitutional Limit of Zero Tolerance in Schools","authors":"D. W. Black","doi":"10.2139/SSRN.2385283","DOIUrl":"https://doi.org/10.2139/SSRN.2385283","url":null,"abstract":"With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"99 1","pages":"823"},"PeriodicalIF":1.3,"publicationDate":"2014-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2385283","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165180","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":"Mind, Body, and the Criminal Law","authors":"Francis X. Shen","doi":"10.2139/ssrn.2108537","DOIUrl":"https://doi.org/10.2139/ssrn.2108537","url":null,"abstract":"Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” This Article explores the content of the bodily injury construct through the lens of cognitive neuroscience, which poses new challenges to traditional mind-body distinctions. Combining a review of bodily injury definitions in criminal assault statutes and a series of empirical analyses, the analysis finds that: (1) jury-eligible lay people exhibit much confusion and disagreement about what constitutes a “bodily” injury; (2) jury instructions, with different definitions of the term, significantly affect how lay people determine bodily injury; and (3) neuroscientific evidence, if unchecked by a limiting jury instruction, will likely expand the bodily injury concept to include injuries that have traditionally been seen as non-physical. Taken together, the findings in this Article suggest that — if the criminal law were to recognize the biological and thus physical basis for mental injury — the limits of criminal liability for harms against the person might be increasingly contested as the distinctions between mind and body for purposes of criminal liability shift. To avoid this confusion, and the potential injustices that might emerge, the Article argues that legislatures should carefully revisit bodily injury definitions. The Article provides a series of options that legislatures can employ.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"5 1","pages":"2036-2175"},"PeriodicalIF":1.3,"publicationDate":"2013-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915204","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":"Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Australia Bank","authors":"Wulf A. Kaal, Richard W. Painter","doi":"10.2139/SSRN.2029983","DOIUrl":"https://doi.org/10.2139/SSRN.2029983","url":null,"abstract":"In Morrison v. National Australia Bank, the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases involving private securities transactions in which geographic determinants of a transaction and thus applicable law are unclear, this article suggests redirecting the inquiry away from the geographic location of securities transactions towards the parties’ choice of law. In the long run, allowing parties to choose the law pertaining to private transactions could be more effective than relying on geography that is both indeterminate and easy to manipulate. Jurisdictions could then compete to induce transacting parties to bring private transactions within their jurisdictional reach by designing substantive law and procedures that parties choose ex-ante (\"Choice of Law Competition”). Recent cases expanding the jurisdictional reach of Dutch courts suggest that the Netherlands or another EU member state could engage in a different type of jurisdictional competition. Jurisdictions performing this role adjust their procedural rules to set up a forum within their borders for litigation that appeals to plaintiffs and their lawyers (\"Forum Competition\"). The U.S. engaged in some Forum Competition for extraterritorial securities litigation prior to Morrison, and the Dodd-Frank Act of 2010 empowers the SEC to continue to bring suits in the United States over securities transactions outside the United States. For many issuers and investors who do not choose the forum ex-ante, Forum Competition can be suboptimal. Depending on future developments, the acceptable outer bounds of Forum Competition between the United States and Europe may need to be defined by treaty or multilateral agreement.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"97 1","pages":"132-205"},"PeriodicalIF":1.3,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868450","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":"When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale.","authors":"Jerome H Reichman, Ruth L Okediji","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"96 4","pages":"1362-1480"},"PeriodicalIF":1.3,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3955386/pdf/nihms-419209.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32186082","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":"Our Partisan Foreign Affairs Constitution","authors":"Jide Nzelibe","doi":"10.2139/SSRN.1900155","DOIUrl":"https://doi.org/10.2139/SSRN.1900155","url":null,"abstract":"The received wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs authority, as efficiency enhancing constraints imposed on political actors that were originally negotiated and are currently being interpreted behind a benign veil of ignorance. In this picture, since the net distributive effects of the foreign affairs powers on specific societal groups are considered to be uncertain and unpredictable, the incentive by such groups to engage in an instrumental or self-serving interpretation of such powers is presumably blunted. This Paper suggests, on the contrary, that partisan groups can often reasonably predict ex ante or determine ex post how an expansive or constrained interpretation of specific foreign affairs powers is likely to affect their material or ideological objectives. The issue of interpretative choice in foreign affairs powers usually involves the outcome of the struggle between right and left leaning groups in which each side attempts to increase the number of veto points (or constitutional constraints) on issues that favor the opposition, and decrease the number of veto points on issues that benefit their favored constituencies. Using this framework, this Paper analyzes how postwar partisan conflict between Republican and Democratic leaning constituencies on issues like human right treaties and war powers has both spawned and restricted the scope of foreign affairs authority in the United States. In the early post WWII era, when the New Deal politics of guns and butter were complementary, progressive Democratic constituencies were supportive of a proactive military agenda and favored greater executive branch flexibility in both war powers and in the ratification of human rights treaties, whereas Republican leaning constituencies (and conservative Democrats) were against. Starting in the late-1960s, as fallout of the Vietnam War, the positions of the Republican and Democrat Parties started to switch gradually on war powers. By the1980s, when President Reagan created a cleavage between the politics of guns and butter, in which the growth of the growth of the national security state was decoupled from that of the welfare state, Republican leaning constituencies cemented their support of greater executive branch flexibility in war powers but not in human rights treaty ratification, whereas progressive Democratic constituencies largely adopted an opposite set of institutional preferences. Finally, this Article concludes by critically examining the normative implications of using increased judicial oversight to counteract the effects of foreign affairs partisanship.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"97 1","pages":"838-906"},"PeriodicalIF":1.3,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67775604","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":"Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases","authors":"Elsa M. Bullard","doi":"10.24926/265535.1366","DOIUrl":"https://doi.org/10.24926/265535.1366","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"95 5","pages":"1867-1867"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1465&context=mlr","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147907928","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":"Special Incentives to Sue","authors":"M. Lemos","doi":"10.2139/SSRN.1474923","DOIUrl":"https://doi.org/10.2139/SSRN.1474923","url":null,"abstract":"In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. This dynamic has been neglected in the academic commentary to date, which has focused on litigant behavior alone while ignoring the role that judges play in any enforcement regime that depends on litigation. I show that caseload pressures and concerns about excessive litigation have driven judges to adopt procedural rules that dampen the effects of fee shifts and damage enhancements. Furthermore, judges have offset incentives to sue by narrowly interpreting the relevant substantive provisions of federal law.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":"782"},"PeriodicalIF":1.3,"publicationDate":"2010-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185232","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":"Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?","authors":"Gerard N. Magliocca","doi":"10.31228/osf.io/bgjd4","DOIUrl":"https://doi.org/10.31228/osf.io/bgjd4","url":null,"abstract":"94 Minnesota Law Review 102 (2009)","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"94 1","pages":"102-139"},"PeriodicalIF":1.3,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639722","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":"Reclaiming International Law from Extraterritoriality","authors":"Austen L. Parrish","doi":"10.2139/SSRN.1013740","DOIUrl":"https://doi.org/10.2139/SSRN.1013740","url":null,"abstract":"A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2008-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125552","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}