Cornell Law Review最新文献

{"title":"Empowering Individual Plaintiffs","authors":"Gideon Parchomovsky, Alex Stein","doi":"10.31228/osf.io/gmwe2","DOIUrl":"https://doi.org/10.31228/osf.io/gmwe2","url":null,"abstract":"The individual plaintiff plays a critical — yet, underappreciated — role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have become a rare phenomenon, if not virtual impossibility. The architecture of liability, by making causes of action more complex and difficult to prove, while equipping defendants with multiple defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare, medical, and consumer finance sectors.To address this growing problem, we propose a full-fledged legal reform that encompasses substantive, procedural, evidentiary, and remedial measures. Substantively, we explain how civil liability should be redesigned to give a fairer chance to individual plaintiffs. Specifically, we call for the simplification of causes of action and the elimination of cumbersome elements that doom many individual lawsuits. Procedurally, we propose a fast-track litigation course that would enable courts to resolve disputes expeditiously. As we show, the introduction of this new procedure would deprive corporate defendants of one of their most critical advantages: the ability to extend litigation over long periods of time and make it more costly than it should. Evidentially, we recommend that lawmakers shift the burden of proof of certain disputed elements from plaintiffs to defendants and explain how this could be done. Finally, as far as remedies are concerned, we make a case for a new preliminary remedy — a partial payment order — define the conditions under which it should be awarded, and argue for a more extensive use of statutory damages and damage multipliers. Implementing our proposed reform will go a long way toward restoring the pride of place individual plaintiffs traditionally held in our legal system.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"1319-1365"},"PeriodicalIF":2.5,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640068","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 School Segregation","authors":"Erika K. Wilson","doi":"10.31228/osf.io/yrqtu","DOIUrl":"https://doi.org/10.31228/osf.io/yrqtu","url":null,"abstract":"The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980’s, schools in the South eventually became among the most desegregated in the country. An important but often under appreciated tool that aided in the fight to desegregate schools in the South was the strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities, and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially- and economically-segregated municipal boundary lines. Affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law. This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race neutral proxy to create segregated school systems that are immune from legal challenge. It concludes by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically, and decentralized public education governance structures more broadly.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"139"},"PeriodicalIF":2.5,"publicationDate":"2016-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69641356","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":"'Voluntariness with a Vengeance' the Coerciveness of Police Lies in Interrogations","authors":"A. Hritz","doi":"10.2139/SSRN.2762425","DOIUrl":"https://doi.org/10.2139/SSRN.2762425","url":null,"abstract":"In this note, I analyze the philosophical, legal and psychological literature regarding police lies to suspects in interrogations. I argue that all forms of police lies to suspects in custody are coercive and all confessions resulting from these lies should not be admitted in court.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"487"},"PeriodicalIF":2.5,"publicationDate":"2016-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68299784","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":"Striking the Right Chord: A Theoretical Approach to Balancing Artists' Intellectual Property Rights on Remix Audio-Sharing Platforms","authors":"Nicole Greenstein","doi":"10.31228/osf.io/rq5cx","DOIUrl":"https://doi.org/10.31228/osf.io/rq5cx","url":null,"abstract":"INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 R I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 R A. The Rise of Remix Culture and the Copyright Backlash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 R B. Licensing Sampling-Based Music . . . . . . . . . . . . . 218 R C. Remixes and the Fair Use Defense . . . . . . . . . . . . 219 R II. A REMIXER’S LABOR OF LOVE: LOCKEAN THEORY OF INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 R A. An Introduction to Locke’s Labor Theory . . . . . . 221 R B. A Lockean Approach to Intellectual Property and Remix Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 R C. The Law of Accession and the Improving Remixer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 R III. FOSTERING MUSICAL CREATION: UTILITARIAN THEORIES OF INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . 229 R A. The Tragedy of the Free Rider . . . . . . . . . . . . . . . . . 229 R B. The Freedom in the Commons . . . . . . . . . . . . . . . . 232 R IV. THE SOUL BEHIND THE SONGS: PERSONHOOD THEORY OF INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . 234 R A. An Introduction to Personhood Theory . . . . . . . . 234 R B. The Personhood Right in Remix Culture . . . . . . . 235 R CONCLUSION: SOLVING THE REMIX RIGHTS STALEMATE . . . . . . . . 237 R","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"211"},"PeriodicalIF":2.5,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640592","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":"Assembled Products: The Key to More Effective Competition And Antitrust Oversight in Health Care.","authors":"William M Sage","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article argues that recent calls for antitrust enforcement to protect health insurers from hospital and physician consolidation are incomplete. The principal obstacle to effective competition in health care is not that one or the other party has too much bargaining power, but that they have been buying and selling the wrong things. Vigorous antitrust enforcement will benefit health care consumers only if it accounts for the competitive distortions caused by the sector's long history of government regulation. Because of regulation, what pass for products in health care are typically small process steps and isolated components that can be assigned a billing code, even if they do little to help patients. Instead of further entrenching weakly competitive parties engaged in artificial commerce, antitrust enforcers and regulators should work together to promote the sale of fully assembled products and services that can be warranted to consumers for performance and safety. As better products emerge through innovation and market entry, competition may finally succeed at lowering medical costs, increasing access to treatment, and improving quality of care.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"101 3","pages":"609-700"},"PeriodicalIF":2.5,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34387719","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 Return of Lochner","authors":"Thomas B. Colby, Peter J. Smith","doi":"10.2139/SSRN.2594015","DOIUrl":"https://doi.org/10.2139/SSRN.2594015","url":null,"abstract":"For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. Our second claim is that this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought. That intellectual framework has been evolving for decades, and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. These developments are revealing about how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the twentieth century. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. Whereas liberal judges created constitutional doctrine in the absence of a metatheory of constitutional interpretation — essentially building the house before the architectural blueprints were completed — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"100 1","pages":"527"},"PeriodicalIF":2.5,"publicationDate":"2015-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68215407","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":"Breaking the Vicious Cycle of Patent Damages","authors":"Douglas Melamed, William F. Lee","doi":"10.2139/SSRN.2577462","DOIUrl":"https://doi.org/10.2139/SSRN.2577462","url":null,"abstract":"Patent law is implicitly, and sometimes explicitly, based upon a story of patent infringement in which technology users are presumed to be able to discover relevant patents in advance and either design around them or negotiate patent licenses before using the patented technology. That story does not hold true in many fields today, in which the scope and diffusion of potentially relevant patents renders such preclearance both infeasible as a practical matter and undesirable as a matter of economic policy. But patent damages law continues to apply this outmoded paradigm. As a result, current doctrine perpetuates a vicious cycle of excessive, socially harmful remedies. We propose a number of ways for patent law to adapt to this new reality. First, reasonable royalty rates should be based on the market value of the patent before infringement and should exclude post-infringement considerations such as lock-in that infect current doctrine and lead to exaggerated damages awards. Second, patent remedy law should distinguish between infringers in the paradigmatic story, who can be regarded as guilty infringers, and innocent infringers for whom preclearance was not practicables; and it should further distinguish between patent holders that were willing to license their patents before infringement and those that had resolved to maintain their patent monopoly. In effect there are four combinations — innocent/willing, innocent/unwilling, guilty/willing, and guilty/unwilling. Remedies should depend on which combination is at issue, and injunctions should be available only for unwilling licensors. In the innocent/unwilling scenario, the patent holder should be able to obtain an injunction only if it agrees to bear the innocent infringer’s costs of switching to a non-infringing alternative.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"101 1","pages":"3"},"PeriodicalIF":2.5,"publicationDate":"2015-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68210763","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":"Bait and Switch: Why United States v. Morrison Is Wrong About Section 5","authors":"K. Roosevelt","doi":"10.2139/SSRN.2393649","DOIUrl":"https://doi.org/10.2139/SSRN.2393649","url":null,"abstract":"As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by — indeed, “controlled by” — precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation of private individuals suggests that it cannot be defended on its own merits. Thus, the article urges that Morrison be overruled.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"100 1","pages":"603"},"PeriodicalIF":2.5,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175871","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":"Reanalyzing reverse payment settlements: a solution to the patentee's dilemma.","authors":"Zhenghui Wang","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"99 5","pages":"1227-58"},"PeriodicalIF":2.5,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32575770","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":"Visual gut punch: persuasion, emotion, and the constitutional meaning of graphic disclosure.","authors":"Ellen P Goodman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The ability of government to \"nudge\" with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to challenge textual disclosure requirements (such as county-of-origin labeling) as unconstitutional. Graphic warning and the increasing reliance on regulation-by-disclosure present new free speech quandaries related to consumer autonomy, state normativity, and speaker liberty. This Article examines the distinct goals of product disclosure requirements and how those goals may serve to vindicate, or to frustrate, listener interests. I argue that many disclosures, and especially warnings, are necessarily both normative and informative, expressing value along with fact. It is not the existence of a norm that raises constitutional concern but rather the insistence on a controversial norm. Turning to the means of disclosure, this Article examines how emotional and graphic communication might change the constitutional calculus. Using autonomy theory and the communications research on speech processing, I conclude that disclosures do not bypass reason simply by reaching for the heart. If large graphic labels are unconstitutional, it will be because of undue burden on the speaker, not because they are emotionally powerful. This Article makes the following distinct contributions to the compelled commercial speech literature: critiques the leading precedent, Zauderer v. Office of Disciplinary Counsel, from a consumer autonomy standpoint; brings to bear empirical communications research on questions of facticity and rationality in emotional and graphic communications; and teases apart and distinguishes among various free speech dangers and contributions of commercial disclosure mandates with a view towards informing policy, law, and research.</p>","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"99 3","pages":"513-69"},"PeriodicalIF":2.5,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32272970","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}