Stanford Law Review最新文献

{"title":"The Interbellum Constitution: Federalism in the Long Founding Moment","authors":"Alison L. LaCroix","doi":"10.2139/SSRN.2228335","DOIUrl":"https://doi.org/10.2139/SSRN.2228335","url":null,"abstract":"Today, the mechanism of the spending power drives the gears of the modern federal machine. But early nineteenth century constitutional debates demonstrate that the spending power is essentially a workaround, and a recent one at that – a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. This “interbellum” period was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, and the anticommandeering principle of the Tenth Amendment. As a historical matter, political and legal actors in the early nineteenth century believed themselves to be living in what this Article argues was a long founding moment, in which the fundamental terms of the federal-state relationship were still open to debate. Constitutional scholars have mistakenly overlooked the constitutional creativity of the period. As a normative matter, I argue for an approach to millennial constitutional interpretation that recognizes the ever-changing nature of the landscape of constitutional permissibility, and that offers documentary evidence of the precise contours of that change. Studying the evolution of the spending power over time, especially where the text itself remains constant, demonstrates that ideas about federal structure are not fixed. Therefore, constitutional federalism itself is not fixed – a particularly important insight in an area of constitutional doctrine that is dominated by originalist approaches.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"67 1","pages":"397"},"PeriodicalIF":4.9,"publicationDate":"2014-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2228335","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68008171","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Compulsory sexuality.","authors":"Elizabeth F Emens","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Asexuality is an emerging identity category that challenges the common assumption that everyone is defined by some type of sexual attraction. Asexuals--those who report feeling no sexual attraction to others--constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a category of analysis, an object of empirical study, and a phenomenon of medical science. It then offers a close examination of the growing community of self-identified asexuals. Asexual identity has revealing intersections with the more familiar categories of gender, sexual orientation, and disability, and inspires new models for understanding sexuality. Thinking about asexuality also sheds light on our legal system. Ours is arguably a sexual law, predicated on the assumption that sex is important. This Article uses asexuality to develop a framework for identifying the ways that law privileges sexuality. Across various fields, these interactions include legal requirements of sexual activity, special carve-outs to shield sexuality from law, legal protections from others' sexuality, and legal protections for sexual identity. Applying this framework, the Article traces several ways that our sexual law burdens, and occasionally benefits, asexuals. This Article concludes by closely examining asexuality's prospects for broader inclusion into federal, state, and local antidiscrimination laws.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 2","pages":"303-86"},"PeriodicalIF":4.9,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32195666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Compulsory sexuality.","authors":"Elizabeth F. Emens","doi":"10.2139/ssrn.2218783","DOIUrl":"https://doi.org/10.2139/ssrn.2218783","url":null,"abstract":"Asexuality is an emerging identity category that challenges the common assumption that everyone is defined by some type of sexual attraction. Asexuals--those who report feeling no sexual attraction to others--constitute one percent of the population, according to one prominent study. In recent years, some individuals have begun to identify as asexual and to connect around their experiences interacting with a sexual society. Asexuality has also become a protected classification under the antidiscrimination law of one state and several localities, but legal scholarship has thus far neglected the subject. This Article introduces asexuality to the legal literature as a category of analysis, an object of empirical study, and a phenomenon of medical science. It then offers a close examination of the growing community of self-identified asexuals. Asexual identity has revealing intersections with the more familiar categories of gender, sexual orientation, and disability, and inspires new models for understanding sexuality. Thinking about asexuality also sheds light on our legal system. Ours is arguably a sexual law, predicated on the assumption that sex is important. This Article uses asexuality to develop a framework for identifying the ways that law privileges sexuality. Across various fields, these interactions include legal requirements of sexual activity, special carve-outs to shield sexuality from law, legal protections from others' sexuality, and legal protections for sexual identity. Applying this framework, the Article traces several ways that our sexual law burdens, and occasionally benefits, asexuals. This Article concludes by closely examining asexuality's prospects for broader inclusion into federal, state, and local antidiscrimination laws.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 2 1","pages":"303-86"},"PeriodicalIF":4.9,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2218783","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68000741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"BIOMEDICAL PATENTS AT THE SUPREME COURT: A PATH FORWARD.","authors":"Arti K Rai","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 ","pages":""},"PeriodicalIF":4.9,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4161141/pdf/nihms548533.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32667919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Exergen and Therasense Effects","authors":"R. D. Swanson","doi":"10.2139/SSRN.2271837","DOIUrl":"https://doi.org/10.2139/SSRN.2271837","url":null,"abstract":"This Article empirically investigates the effects of the Federal Circuit’s Exergen and Therasense decisions. It makes three main findings: First, the rate at which accused infringers won a final merits determination of inequitable conduct was 0.23 immediately preceding Exergen, dropping to 0.12 for cases between Exergen and Therasense, and then declining to 0.09 for cases post-Therasense. Second, inequitable conduct was plead in approximately 17 percent of patent cases before Exergen, 14 percent of cases between Exergen and Therasense, and 7.5 percent of cases after Therasense. Third, when courts decline to find inequitable conduct, they most often hold that proof of intent, rather than proof of materiality, is lacking. Based on these results, this Article argues that the Federal Circuit went too far in Therasense. A better formulation of inequitable conduct doctrine would be the test advocated by the dissent in Therasense, which embraced the PTO’s Rule 56 definition of materiality.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 1","pages":"695"},"PeriodicalIF":4.9,"publicationDate":"2013-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68049761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Attorney Advertising and the Contingency Fee Cost Paradox","authors":"N. Engstrom","doi":"10.2139/SSRN.2259302","DOIUrl":"https://doi.org/10.2139/SSRN.2259302","url":null,"abstract":"It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of Arizona. And, in the decades following Bates, courts, commentators, the ABA, and the FTC have followed suit, frequently touting advertising’s ability to cut consumer costs. The price effect of attorney advertising is thus both seemingly settled and also deeply embedded in its judicial justification.But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared. This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled” attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"65 1","pages":"633"},"PeriodicalIF":4.9,"publicationDate":"2013-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2259302","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68039081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When pregnancy is an injury: rape, law, and culture.","authors":"Khiara M Bridges","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"65 3","pages":"457-516"},"PeriodicalIF":4.9,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"31375565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Front-End Fiduciaries: Pre-Certification Duties and Class Conflict","authors":"Nick Landsman-Roos","doi":"10.2139/SSRN.2155365","DOIUrl":"https://doi.org/10.2139/SSRN.2155365","url":null,"abstract":"On August 31, 2012, the Supreme Court granted certiorari in Standard Fire Insurance v. Knowles to decide whether named plaintiffs may defeat removal under the Class Action Fairness Act of 2005 by filing 'binding stipulations' with complaints in state court, capping a class’s recovery at under $5 million (the jurisdictional threshold for removal). The case presents an opportunity to address an issue under-theorized in the existing literature on class actions: what fiduciary duties, if any, are owed by a plaintiff's attorney to potential absent class members in a class action prior to certification? What are the contours or scope of such a pre-certification fiduciary duty? This paper fills two gaps in the literature about fiduciary duties (or more broadly conflicts of interest) in class actions. First, there has been little scholarly treatment of the scope and contours of an attorney’s fiduciary duty to class members prior to class certification - that is, outside the strictures of Rule 23. Pre-certification conflicts are far more difficult to address because no federal rules-based framework exists for addressing pre-certification conduct. Second, this is the first academic treatment of means-based decision making in class actions. Unlike post-certification inquiries into conflicts of interest concerning settlements, this inquiry is particularly complicated because there is often inadequate information about likely outcomes when certain means are employed. Conceivably, there is considerably more grey area surrounding means-related decision making. In the pre-certification stage, without information about how the litigation will run its course, attorneys make decisions that could credibly be defended as in the best interest of the class, or as in breach of the attorney’s fiduciary obligations to those class members. In discussing pre-certification fiduciary duties, this paper investigates the legitimacy of 'binding stipulations' as a case study. In addition to this specific analysis, this paper offers a specific formulation of the scope of attorneys’ pre-certification fiduciary duties: an attorney breaches his fiduciary duty to class members when he makes a decision that prejudices the substantive legal rights of absent class members without notice and opportunity for objection. When an action potentially prejudices or does prejudice a substantive legal right of absent class members, an attorney should have an opportunity to offer a good faith defense - that the course of conduct was undertaken in a good faith belief that it would maximize the class’s recovery. That defense, in turn, can be evaluated in terms of whether it is legitimate, genuine, or pretextual.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"65 1","pages":"817"},"PeriodicalIF":4.9,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67956417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ghost that slayed the mandate.","authors":"Kevin C Walsh","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. The Supreme Court has placed limits on statutory subject matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law--precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by states to federal law. This Article identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"64 1","pages":"55-88"},"PeriodicalIF":4.9,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30485183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State sovereign standing: often overlooked, but not forgotten.","authors":"Kenneth T Cuccinelli,&nbsp;E Duncan Getchell,&nbsp;Wesley G Russell","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Critics of Virginia's challenge to the constitutionality of the Patient Protection and Affordable Care Act have asserted that Virginia lacked standing to even raise the issue. Such criticism is inconsistent with foundational understandings of the role of states in providing a check on federal power and with the modern standing jurisprudence of the Supreme Court, especially as reflected in the Court's decisions regarding a state's sovereign interest in defending its code of laws. This Article demonstrates that, as a matter of constitutional design and history, as well as under relevant precedents, Virginia clearly had and has standing to bring its challenge.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"64 1","pages":"89-124"},"PeriodicalIF":4.9,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30484541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}