California Law Review最新文献

{"title":"The Not-Quite-Accidental Genius of EBCLC’s Consumer Justice Clinic: Lessons for Legal Services Providers","authors":"T. Mermin","doi":"10.15779/Z38XD0QX7Z","DOIUrl":"https://doi.org/10.15779/Z38XD0QX7Z","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"547"},"PeriodicalIF":2.4,"publicationDate":"2018-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45580341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking Intellectual Property into Their Own Hands","authors":"A. Adler, Jeanne Fromer","doi":"10.15779/Z38KP7TR8W","DOIUrl":"https://doi.org/10.15779/Z38KP7TR8W","url":null,"abstract":"When we think about people seeking relief for infringement of their intellectual property rights pursuant to copyright and trademark laws, we typically assume they will operate within an overtly legal scheme of cease-and-desist letters, notice-and-takedown requests, litigation, or settlement. Quite by contrast are those who assert extralegal norms within a tight-knit community to remediate copying of creative works like tattoos, recipes, jokes, roller derby pseudonyms, and magic, which lie outside the subject matter—or at least the heartland—of these intellectual property laws. In recent years, however, there has been a growing third category of relief-seekers: those taking intellectual property into their own hands as a way to seek relief outside the legal system for copying of works well within the heartland of copyright or trademark laws, such as visual art, music, and fashion. Moreover, they can do so successfully across different artistic communities or in the absence altogether of any discrete community—that is, without the backdrop of a single close-knit community, which legal scholars tend to see as a prerequisite to enforcing extralegal norms. They exercise intellectual property self-help in a constellation of related ways. Most frequently, they use shaming, principally through social media or a similar platform to call out perceived misappropriations. Other times, they reappropriate perceived misappropriations, therein generating yet new creative works. This Essay identifies, illustrates, and analyzes this phenomenon using a diverse array of recent examples, including the Suicide Girls’ retaking of Richard Prince’s copies of their Instagram photos, Gucci’s hiring of street artist GucciGhost for a recent fashion collaboration, a number of intellectual property diss songs at the center of hip hop, James Turrell’s calling out of Drake for using artwork reminiscent of Turrell’s in a popular music video, and Instagram phenomenon Diet Prada, which devotes itself to shaming copycats in fashion. Aggrieved creators can use self-help of the sorts we describe to accomplish much of what they could hope to derive from successful infringement litigation: collect monetary damages, insist on attribution to them of their work, and correct potential misattributions to them of a misappropriation. We evaluate how to assess the benefits and demerits of intellectual property self-help, as compared with more traditional intellectual property enforcement. We hold out more hope for the promise of self-help through retaking of copies than through social media shaming. Reappropriations, at their core, provide society with new artistic creations. Reappropriators turn the intellectual property paradigm on its head, by seeing infringement as a moment for creativity, rather than as a block to creativity. Social media shaming gives far less to the public, at least artistically.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"1455"},"PeriodicalIF":2.4,"publicationDate":"2018-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48485409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Detaining Families: A Study of Asylum Adjudication in Family Detention","authors":"Ingrid V. Eagly, Steven Shafer, J. Whalley","doi":"10.15779/Z38WH2DF26","DOIUrl":"https://doi.org/10.15779/Z38WH2DF26","url":null,"abstract":"The United States currently detains more families seeking asylum than any nation in the world, but little is known about how these families fare in the immigration court process. In this Article, we analyze government data from all immigration court cases initiated between 2001 and 2016 to provide the first empirical analysis of asylum adjudication in family detention. We find that families have been detained in remote locations, have faced language barriers in accessing the courts, and, despite valiant pro bono efforts to assist them, have routinely gone to court without legal representation. Only half of the family members who remained detained found counsel, fewer than 2% spoke English, and 93% had their hearings in detention adjudicated remotely over video conference, rather than in a traditional face-to-face courtroom setting. In addition, the evidence we uncover documents the important, and underappreciated, role that immigration courts have played in limiting the overdetention of migrant families by immigration authorities at the border. During the period studied, immigration judges reversed half of the negative credible fear decisions of asylum officers and systematically lowered the bond amount set by detention officers. We also find high compliance rates among family members who were released from detention: family members seeking asylum attended their immigration court hearings in 96% of cases since 2001. Finally, we document significant regional variation in case outcomes among family members who were released from detention, including whether family members obtained attorneys and won their asylum cases. These and other findings are meaningful to current policy debates regarding the role of immigration courts in maintaining due process in asylum proceedings and the appropriate use of detention to manage the migration of families fleeing violence in their home countries.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"785-868"},"PeriodicalIF":2.4,"publicationDate":"2018-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44117514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Saving Governance-By-Design","authors":"D. Mulligan, K. Bamberger","doi":"10.15779/Z38QN5ZB5H","DOIUrl":"https://doi.org/10.15779/Z38QN5ZB5H","url":null,"abstract":"Author(s): Mulligan, DK; Bamberger, KA | Abstract: © Copyright 2018 California Law Review. Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship has discussed individual skirmishes over the political impact of technical choices-from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that \"governance-by-design\"-the purposeful effort to use technology to embed values-is becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill-equipped to prevent that phenomenon from subverting public governance. Far from being a panacea, governance-by-design has undermined important governance norms and chipped away at our voting, speech, privacy, and equality rights. In administrative agencies, courts, Congress, and international policy bodies, public discussions about embedding values in design arise in a one-off, haphazard way, if at all. Constrained by their structural limitations, these traditional venues rarely explore the full range of other values that design might affect, and often advance, a single value or occasionally pit one value against another. They seldom permit a meta-discussion about when and whether it is appropriate to enlist technology in the service of values at all. And their policy discussions almost never include designers, engineers, and those that study the impact of socio-technical systems on values. When technology is designed to regulate without such discussions-as it often is-the effects can be even more insidious. The resulting technology often hides government and corporate aims and the fundamental political decisions that have been made. In this way, governance-by-design obscures policy choices altogether. Such choices recede from the political as they become what \"is\" rather than what politics has determined ought to be. This Article proposes a detailed framework for saving governance-by-design. Through four case studies, the Article examines a range of recent battles over the values embedded in technology design and makes the case that we are entering an era of policymaking by \"design war.\" These four battles, in turn, highlight four recurring dysfunctions of governance-by-design: First, governance-by-design overreaches by using overbroad technological fixes that lack the flexibility to balance equities and adapt to changing circumstances. Errors and unintended consequences result. Second, governance-by-design often privileges one or a few values while excluding other important ones, particularly broad human rights. Third, regulators lack the proper tools for governance-by-design. Ad","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"697-784"},"PeriodicalIF":2.4,"publicationDate":"2018-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41999816","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Nothing Less Than the Dignity of Man: Women Prisoners, Reproductive Health, and Unequal Access to Justice Under the Eighth Amendment","authors":"Estalyn Marquis","doi":"10.15779/Z38S46H59R","DOIUrl":"https://doi.org/10.15779/Z38S46H59R","url":null,"abstract":"Much of the literature on women prisoners’ inadequate access to healthcare has focused on the relative rarity of women in prison before the age of mass incarceration. This may explain why prisons initially were poorly equipped to provide healthcare to women, but the gendered nature of Eighth Amendment jurisprudence has allowed prisons to remain so. This Note argues the Supreme Court’s standard for prisoners’ claims of inadequate medical care under the Eighth Amendment denies women equal access to justice in the wake of inadequate reproductive healthcare. By implicitly requiring that women prisoners compare their medical needs to those of men, the current standard for evaluating prisoners’ claims of inadequate medical care, though gender-neutral on its face, creates barriers for women that do not exist for men. In the context of reproductive healthcare, this requirement presents an often-insurmountable obstacle for women prisoners seeking justice under the Eighth Amendment.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"203"},"PeriodicalIF":2.4,"publicationDate":"2018-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41531655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Aérospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and What Foreign States Can Do About It","authors":"M. Hoda","doi":"10.15779/Z38BZ6181D","DOIUrl":"https://doi.org/10.15779/Z38BZ6181D","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"231"},"PeriodicalIF":2.4,"publicationDate":"2018-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42559399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Remedial Convergence and Collapse","authors":"Leah M. Litman","doi":"10.15779/Z382V2C96D","DOIUrl":"https://doi.org/10.15779/Z382V2C96D","url":null,"abstract":"This Article describes and interrogates a phenomena of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability of writs of habeas corpus to challenge criminal convictions, damages against government officials, the exclusion of evidence in criminal trials, and causes of action to sue federal officials for damages. The convergence results in considerable tension in the doctrine and notable effects in practice. For example, courts frequently deny one remedy on the ground that another remedy is available and preferable to the remedy that a party has sought. But when the same standard governs the availability of remedies that are supposed to substitute for one another, courts eliminate all remedies when they deny one of them. The remedial doctrines discussed in this article primarily address executive violations of constitutional rights, particularly violations that occur in the course of policing. Denying the availability of remedies in cases that involve policing and executive power replicates the racialized effects of policing in the federal courts and forsakes oversight and accountability in an area where it might be particularly needed.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"1477"},"PeriodicalIF":2.4,"publicationDate":"2018-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43162137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trade and the Separation of Powers","authors":"Timothy Meyer, Ganesh Sitaraman","doi":"10.2139/SSRN.3136086","DOIUrl":"https://doi.org/10.2139/SSRN.3136086","url":null,"abstract":"There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic economics paradigm dominated in the nineteenth century, and the foreign affairs paradigm from the mid-twentieth century. \u0000Since the end of the Cold War, however, trade law and policy has become increasingly divisive and contentious. Trade law and policy entered a new era of liberalization, characterized by international organizations (like the WTO) and a shift to mini-lateral free trade agreements. By 2016, backlash was in full force, with candidates Donald Trump, Bernie Sanders, and Hillary Clinton all coming out against the Trans-Pacific Partnership (TPP). Since taking office, President Trump has instituted high tariffs on solar panels, threatened to withdraw from NAFTA, and sparked concern about a trade war with China. \u0000This Article makes three contributions. First, we argue that the current discontent over trade is not just a matter of the distribution of economic gains and losses but a matter of the distribution of constitutional powers. We provide a thorough descriptive account of the two paradigms for trade within our constitutional system and show that trade has migrated from a domestic to a foreign affairs matter – and ultimately that it has becoming unhooked even from specific foreign affairs objectives. As trade drifted further away from the balance struck by our separation of powers and became increasingly rooted in the Presidency, agreements liberalizing trade rules became more viable – but at the cost of the political sustainability that comes with greater congressional involvement. \u0000Second, we make a normative case for rebalancing trade within the constitutional structure. We argue that trade shares few similarities with other foreign affairs and national security areas in which the President is seen to have a functional advantage, and perhaps surprisingly given the conventional wisdom, that the parochial interests of Congress present strong benefits to trade policymaking that are widely undervalued. \u0000Finally, we apply this rebalanced framework for trade law and policy to a variety of contemporary debates, including the role of fast track authority in negotiating and approving trade agreements, the President’s power to declare trade wars, the scope of the President’s authority to withdraw from trade agreements, the use of unorthodox internatio","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"583"},"PeriodicalIF":2.4,"publicationDate":"2018-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3136086","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44398360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New World of Agency Adjudication","authors":"Christopher J. Walker, Melissa Wasserman","doi":"10.2139/SSRN.3129560","DOIUrl":"https://doi.org/10.2139/SSRN.3129560","url":null,"abstract":"In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. \u0000 \u0000In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. \u0000 \u0000This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"107 1","pages":"141"},"PeriodicalIF":2.4,"publicationDate":"2018-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47578673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wrong Turn on the Ex Post Facto Clause","authors":"Paul D. Reingold, Kimberly A. Thomas","doi":"10.2139/SSRN.3126467","DOIUrl":"https://doi.org/10.2139/SSRN.3126467","url":null,"abstract":"The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause. Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken. \u0000Parole is an integral part of punishment: it determines how much time people will serve on their sentences. Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners. If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only. Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees. Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences. \u0000In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause. In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"593"},"PeriodicalIF":2.4,"publicationDate":"2018-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41901284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}