Ucla Law Review最新文献_第2页

Gun Control after Heller: Threats and Sideshows from a Social Welfare Perspective 海勒之后的枪支管制:从社会福利的角度看威胁和杂耍

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2009-02-06 DOI: 10.2139/SSRN.1338927

P. Cook, J. Ludwig, Adam M. Samaha

{"title":"Gun Control after Heller: Threats and Sideshows from a Social Welfare Perspective","authors":"P. Cook, J. Ludwig, Adam M. Samaha","doi":"10.2139/SSRN.1338927","DOIUrl":"https://doi.org/10.2139/SSRN.1338927","url":null,"abstract":"What will happen after Heller? We know that the Supreme Court will no longer tolerate comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and perhaps only at the time of, self-defense. But the judiciary could push further, if nothing else by incorporating Heller's holding into the Fourteenth Amendment and enforcing it against states and municipalities. In fact, the majority opinion offered little guidance for future cases. It presented neither a purely originalist method of constitutional interpretation nor a constraining doctrinal framework for evaluating other regulation - even while it gratuitously suggested that much existing gun control is acceptable. In the absence of more information from the Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare. We conclude that some of the most salient legal arguments after Heller have little or no likely consequence for social welfare based on available data. For example, the looming fight over local handgun bans - an issue on which we present original empirical data - seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening. Taxation and regulation targeted especially at firearms might be presumptively disfavored by judges in the future, along the lines of free speech doctrine. This could have serious consequences. In addition, Second Amendment doctrine might generally dampen enthusiasm for innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit policy experimentation ranging from micro-stamping on shell casings, to pre-market review of gun design, to so-called personalized firearms, and beyond.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2009-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165555","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}

引用次数: 71

The iPhone Meets the Fourth Amendment iPhone遇到了第四修正案

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2008-01-15 DOI: 10.2139/SSRN.1084503

Adam M. Gershowitz

引用次数: 9

Place-Based Theory of Standing, A 基于地点的站立理论

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2007-09-08 DOI: 10.2139/SSRN.1013084

D. Farber

{"title":"Place-Based Theory of Standing, A","authors":"D. Farber","doi":"10.2139/SSRN.1013084","DOIUrl":"https://doi.org/10.2139/SSRN.1013084","url":null,"abstract":"issue of law and that a plaintiff should have something beyond a generalized interest in law enforcement. While respecting these views that underlie current doctrine, the place-based approach seeks to implement them in a doctrinally simpler way. Although less sweeping in legal terms, the place-based approach speaks to a more fundamental point than its alternatives. It asks us to see individuals, not just as legal actors who have the capacity to file law suits, but as people who live in a physical space and develop very real connections to their surroundings.2\"6 It asks courts, in short, to develop a sense of place. Although standing law relates to a technical if not arcane aspect of federal jurisdiction, it also provides the setting in which courts bless certain individual interests as legitimate and others as ethereal. It is time for the courts to recognize that we all have an interest in the environmental integrity of our surroundings, rather than treating the environment as presumptively irrelevant to our lives and requiring individualized proof to the contrary. 216. As Mark Sagoff says, A natural landscape becomes a place-\"a shape that's in your head\"-when it is cultivated, when it constrains human activity and is constrained by it, when it functions as a center of felt value because human needs, cultural and social as well as biological, are satisfied in it.... This contrasts entirely with the attitude of the outsider... for whom \"[n]othing has a drift or relation; nothing has a history or a promise. Everything stands by itself, and comes and goes in its turn, like the shifting scenes of a show, which leaves the spectator where he was.\" Mark Sagoff, Settling America or The Concept of Place in Environmental Ethics, 12 J. ENERGY NAT. RES. & ENvTL. L. 349, 358 (1992) (quoting MARK TWAIN, LIFE ON THE MISSISSIPPI 38 (1911); JOHN HENRY NEWMAN, THE IDEA OF A UNIVERSITY 99 (Frank M. Turner ed., 1996)). Sagoff also presents an evocative quote from Alan Gussow: \"'A place is a piece of the whole environment that has been claimed by feelings.\"' Id. at 359. 1558 HeinOnline -55 UCLA L. Rev. 1558 2007-2008","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2007-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125636","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}

引用次数: 1

The Convergence of Good Faith and Oversight 诚信与监督的融合

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2007-08-14 DOI: 10.2139/SSRN.1006097

Stephen M. Bainbridge, S. Lopez, Benjamin Oklan

{"title":"The Convergence of Good Faith and Oversight","authors":"Stephen M. Bainbridge, S. Lopez, Benjamin Oklan","doi":"10.2139/SSRN.1006097","DOIUrl":"https://doi.org/10.2139/SSRN.1006097","url":null,"abstract":"In Stone v. Ritter, 911 A.2d 362 (Del. 2006), two important strands of Delaware corporate law converged; namely, the concept of good faith and the duty of directors to monitor the corporation's employees for law compliance. As to the former, Stone puts to rest any remaining question as to whether acting in bad faith is an independent basis of liability under Delaware corporate law, stating that although good faith may be described colloquially as part of a 'triad' of fiduciary duties that includes the duties of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty that stands on the same footing as the duties of care and loyalty. Only the latter two duties, where violated, may directly result in liability, whereas a failure to act in good faith may do so, but indirectly. 911 A.2d at 370. Nevertheless, this holding may not matter much, because the Stone court makes clear that acts taken in bad faith breach the duty of loyalty. As a result, instead of being split out as a separate fiduciary duty, good faith has been subsumed by loyalty. In this sense, Stone looks like a compromise between those scholars and jurists who wanted to elevate good faith to being part of a triad of fiduciary duties and those who did not, with the former losing as a matter of form, and the latter losing as a matter of substance. As to the duty of oversight, Stone confirmed former Chancellor William Allen's dicta in Caremark Int'l Inc. Deriv. Litig., 698 A.2d 959 (Del. Ch. 1996), that the fiduciary duty of care of corporate directors includes an obligation for directors to take some affirmative law compliance measures. In Stone, the Delaware Supreme Court confirmed that Caremark articulates the necessary conditions for assessing director oversight liability. Stone, 911 A.2d at 365. This article argues that the convergence of good faith and oversight is one of those unfortunate marriages that leaves both sides worse off. New and unnecessary doctrinal uncertainties have been created. This article identifies those uncertainties and suggests how they should be resolved.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2007-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68121625","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}

引用次数: 7

The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines 遵循布雷克利的结构化量刑的持续活力:自愿准则的有效性

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2005-12-13 DOI: 10.2139/SSRN.869977

John F. Pfaff

{"title":"The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines","authors":"John F. Pfaff","doi":"10.2139/SSRN.869977","DOIUrl":"https://doi.org/10.2139/SSRN.869977","url":null,"abstract":"This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors. Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2005-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847996","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}

引用次数: 19

Why we need the independent sector: the behavior, law, and ethics of not-for-profit hospitals. 为什么我们需要独立部门:非营利性医院的行为、法律和道德。

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2003-08-01

Jill R Horwitz

引用次数: 0

Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations. 离婚后处理冷冻胚胎:一种旨在保持双方期望的合同方法。

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2003-04-01

Sara D Petersen

{"title":"Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations.","authors":"Sara D Petersen","doi":"","DOIUrl":"","url":null,"abstract":"The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as divorce. Few courts have resolved such disputes, and those that have appear to uphold the rights of the party seeking to prevent implantation in the absence of a written agreement specifying otherwise. In this Comment, Sara Petersen proposes that courts should draw upon contract law principles in determining whether the parties to such conflicts actually reached agreements regarding embryo disposition in the event of divorce. After analyzing existing precedent, the author assesses proposed approaches for deciding which party's interests should prevail and concludes that these methods are inherently ineffective. She then argues that, in an effort to preserve party expectations and to provide fair results, courts instead should examine whether the parties executed binding contracts or achieved mutual assent. Furthermore, she suggests that couples undergoing cryopreservation will be more likely to contemplate and to provide for various outcomes if they know that courts will look at evidence of their conversations and thought processes prior to cryopreserving their excess embryos.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24692857","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}

引用次数: 0

Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs 运用纠纷制度设计方法促进法院调解项目的诚信参与

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2003-02-05 DOI: 10.2139/SSRN.358420

J. Lande

{"title":"Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs","authors":"J. Lande","doi":"10.2139/SSRN.358420","DOIUrl":"https://doi.org/10.2139/SSRN.358420","url":null,"abstract":"This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. These policies include collaborative education about good mediation practice, pre-mediation consultations and submission of documents, a limited and specific attendance requirement, and protections against misrepresentation. If faithfully implemented, these policies will enhance the integrity of mediation programs and satisfy the interests of the stakeholder groups without the problems caused by good-faith requirements.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2003-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.358420","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68609358","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}

引用次数: 34

The Camel's Nose is in the Tent: Rules, Theories and Slippery Slopes 骆驼的鼻子在帐篷里:规则、理论和滑坡

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2002-11-15 DOI: 10.2139/SSRN.352981

M. Rizzo, D. Whitman

引用次数: 59

Conceiving harm: disability discrimination in assisted reproductive technologies. 怀孕危害:辅助生殖技术中的残疾歧视。

IF 2.4 1区社会学

Ucla Law Review Pub Date : 2002-10-01

Carl H Coleman

{"title":"Conceiving harm: disability discrimination in assisted reproductive technologies.","authors":"Carl H Coleman","doi":"","DOIUrl":"","url":null,"abstract":"Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with reproduction by individuals with disabilities. On the other hand, patients' disabilities may sometimes have potentially devastating implications for any child resulting from treatment, including the possibility that the child will be born with life-threatening or seriously debilitating impairments. Some physicians have strong ethical objections to helping patients become pregnant in the face of such risks. In this Article, Professor Coleman develops a framework for applying the ADA to disability-based denials of ARTs that addresses these competing considerations. In recognizing risks to the future child as a potential defense to a disability discrimination claim, Professor Coleman rejects the view of some commentators that such risks are relevant to reproductive decisions only if the child is likely to suffer so much that he or she would prefer not to exist. Instead, he proposes that, when a patient's disabilities create significant risks to the future child, the question should not be whether the child's life is likely to be so awful that nonexistence would be preferable, but how the risks and benefits of the requested treatment compare to those associated with other available reproductive and parenting options. Professor Coleman provides a theoretical justification for adopting this comparative framework, and examines how ADA precedents developed in other contexts should be applied to decisions about ARTs.","PeriodicalId":53555,"journal":{"name":"Ucla Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24536588","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}

引用次数: 0