William and Mary law review最新文献

{"title":"Whose Constitution Is It? Why Federalism and Constitutional Positivism Don't Mix","authors":"James A. Gardner","doi":"10.2139/SSRN.559426","DOIUrl":"https://doi.org/10.2139/SSRN.559426","url":null,"abstract":"It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the polity that creates a constitution must be unique, determinate, and self-constructed. These are exactly the conditions that American state polities fail to satisfy, and which cannot be satisfied by any subnational unit in a system of true federalism. In such a system, subnational units are autonomous sovereigns for some purposes but not for others, and thus are simultaneously both independent, autonomously self-governing entities and hierarchically subordinate dependencies of the national government. As a result, national norms are part of the constituting matrix of the state polity, and consequently of its constitution. This in turn means that interpretation of state constitutions inevitably will require at least some resort to national norms and sources of national constitutional meaning. Yet constitutional positivism prohibits such a move, for it forbids the interpretation of one constitution by reference to sources of meaning established by some other polity and appearing in some other constitution. It is telling that one of the most common phenomena in state constitutional law today is so-called \"lockstep\" interpretation, in which state courts construe provisions of state constitutions to have precisely the same meaning as similar provisions of the U.S. Constitution. For this they have been routinely criticized. My argument here suggests that this criticism is not necessarily well founded.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 1","pages":"1245-1271"},"PeriodicalIF":0.0,"publicationDate":"2004-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67763459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gaps, inexperience, inconsistencies, and overlaps: crisis in the regulation of genetically modified plants and animals.","authors":"Gregory N Mandal","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The regulation of genetically modified products pursuant to statutes enacted decades prior to the advent of biotechnology has created a regulatory system that is passive rather than proactive about risks, has difficulty adapting to biotechnology advances, and is highly fractured and inefficient--transgenic plants and animals are governed by at least twelve different statutes and five different agencies or services. The deficiencies resulting from this piecemeal approach to regulation unnecessarily expose society and the environment to adverse risks of biotechnology and introduce numerous inefficiencies into the regulatory system. These risks and inefficiencies include gaps in regulation, duplicative and inconsistent regulation, unnecessary increases in the cost of and delay in the development and commercialization of new biotechnology products. These deficiencies also increase the risk of further unnecessary biotechnology scares, which may cause public overreaction against biotechnology products, preventing the maximization of social welfare. With science and society poised to soar from first-generation biotechnology (focused on crops modified for agricultural benefit), to next-generation developments (including transgenic fish, insects, and livestock, and pharmaceutical-producing and industrial compound-producing plants and animals), it is necessary to establish a comprehensive, efficient, and scientifically rigorous regulatory system. This Article details how to achieve such a result through fixing the deficiencies in, and risks created by, the current regulatory structure. Ignoring many details, the solutions can be summarized in two categories. First, statutory and regulatory gaps that are identified must be closed with new legislation and regulation. Second, regulation of genetically modified products must be shifted from a haphazard model based on statutes not intended to cover biotechnology to a system based upon agency expertise in handling particular types of risks.</p>","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 5","pages":"2167-259"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25740730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patent first, ask questions later: morality and biotechnology in patent law.","authors":"Margo A Bagley","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article explores the U.S. \"patent first, ask questions later\" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on \"anything under the sun made by man,\" and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created \"moral utility\" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not \"useful.\" The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the \"patent first\" approach, and considers the benefits and disadvantages of the \"ask questions first, patents later\" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.</p>","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 2","pages":"469-547"},"PeriodicalIF":0.0,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24835914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Technological Evolution and the Devolution of Corporate Financial Reporting","authors":"Donald C. Langevoort","doi":"10.2139/SSRN.480704","DOIUrl":"https://doi.org/10.2139/SSRN.480704","url":null,"abstract":"The role of technological evolution as a potential causal factor in the recent financial scandals has not yet been fully explored. This paper looks at technology-induced changes in the issuers' marketplace environment, in the trading behavior of investors and in the tools employed by technology-oriented firms to make the case that motive, opportunity and the potential for rationalization of less-than-candid financial reporting were intensified by these trends. In particular, these forces suggest that some sizable portion of financial misreporting was not selfish on the part of managers but a predictable feedback loop generated by competitive forces. If so, there are important lessons to be learned with respect to the appropriate forms of (and forums for) deterrence, as well as with respect to on-going debates about the philosophy of financial reporting.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746689","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Voter Knowledge and Constitutional Change: Assessing the New Deal Experience","authors":"I. Somin","doi":"10.2139/SSRN.458700","DOIUrl":"https://doi.org/10.2139/SSRN.458700","url":null,"abstract":"This Article is the first to empirically test the theory that voters' knowledge of politics increases during periods of major constitutional change, enabling them to exercise greater control over policy outcomes by disciplining political leaders. Previous research has repeatedly shown that most voters have very low political knowledge levels during times of normal politics. It is therefore important to determine whether such dangerous ignorance persists even during periods when massive constitutional change is on the political agenda. Sadly, the evidence presented here shows that it does. Scholars such as Bruce Ackerman and Akhil Amar have argued that the supermajority amendment requirements of Article V of the Constitution should be set aside because in periods of constitutional change, voters pay heightened attention to politics, increase their levels of political knowledge, and force politicians to conform to the popular will. Article V is seen as inhibiting the will of the majority. These arguments are the latest in a 200-year history of criticism of Article V's supermajority requirements. Ackerman's heightened attention hypothesis is opposed by the theory of rational ignorance, which predicts that voter knowledge of politics should remain low at virtually all times because the insignificance of any one vote to electoral outcomes makes it irrational to invest large amounts of time and effort in the acquisition of political knowledge for the purpose of becoming a better-informed voter. Voter Knowledge and Constitutional Change uses evidence from the New Deal era of constitutional change to test the two theories against each other. The New Deal period was the most significant era of constitutional change in the last 100 years of American history, and is cited by Ackerman and other scholars as a key test of the heightened attention theory. I look at both survey evidence of voter knowledge and qualitative evidence of the degree of constraint from public opinion experienced by political leaders. Both types of evidence strongly support the rational ignorance hypothesis and contradict the heightened attention theory. Survey data shows that voter knowledge increased very little or not at all during the 1930s. Qualitative evidence from three major New Deal policy initiatives that challenged existing constitutional constraints on federal government power show that these policies were developed by political leaders who perceived no increase in constraint by public opinion and in fact saw the voters as largely ignorant. These results cast doubt on both the empirical validity of the heightened attention hypothesis and the normative validity of the major criticisms of Article V. If most of the electorate remains severely ignorant of politics even during periods of massive constitutional upheaval, Article V's supermajority requirements may be necessary to ensure that constitutional change is not enacted through the manipulation of voter ignorance. A superma","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 1","pages":"595"},"PeriodicalIF":0.0,"publicationDate":"2003-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Pattern-Oriented Approach to Fair Use","authors":"M. J. Madison","doi":"10.2139/SSRN.442441","DOIUrl":"https://doi.org/10.2139/SSRN.442441","url":null,"abstract":"More than 150 years into development of the doctrine of \"fair use\" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional \"case-by-case\" application of the statutory fair use \"factors\" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 1","pages":"1525"},"PeriodicalIF":0.0,"publicationDate":"2003-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68788878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lessons from the Rise and (Possible) Fall of Chinese Township-Village Enterprises","authors":"Brett H. Mcdonnell","doi":"10.2139/SSRN.439041","DOIUrl":"https://doi.org/10.2139/SSRN.439041","url":null,"abstract":"The success of Chinese township-village enterprises (TVEs) poses a puzzle for a property rights approach to the theory of the firm, since no one really holds well-defined, transferable property rights to control and claim the residual profits of TVEs. TVEs also pose a second puzzle: in the last five or seven years, they have started to experience serious problems, despite reforms which have improved TVEs from a property rights perspective. This paper takes ideas from property rights and institutional approaches to economics and examines whether those ideas can help explain both of these puzzles. As to the first puzzle, reforms in the seventies and eighties created product market competition and gave local governmental officials and TVE managers enough of a stake in the success of the enterprises to encourage investment in them. TVEs were less imperfect than their leading alternatives, state-owned enterprises and private enterprises, the latter of which faced much discrimination. As to the second puzzle, although property rights reforms have improved TVE performance, reforms reducing the discrimination against private enterprises have made them more attractive. The paper also draws four general lessons from the TVE experience about the relationship between property rights and economic development. First, defining property rights properly is important to development, but other institutions (e.g. norms, financial institutions, capital markets, labor markets, political structure) are also quite important. Second, would-be reformers need to carefully consider the political constraints facing proposed changes in property rights. Third, property rights reforms are at least as much the effect of economic development as they are its cause. Fourth, the development path followed may affect the end states which can be feasibly reached.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 1","pages":"953"},"PeriodicalIF":0.0,"publicationDate":"2003-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.439041","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68785624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Solving Problems V. Claiming Rights: The Pragmatist Challenge to Legal Liberalism","authors":"William H. Simon","doi":"10.2139/SSRN.459325","DOIUrl":"https://doi.org/10.2139/SSRN.459325","url":null,"abstract":"Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and \"new accountability\" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past 50 years. That view - Legal Liberalism - is less a creature of academic theory than an implicit popular jurisprudence of practicing lawyers. It consists of a cluster of ideas associated with the Warren Court, the ACLU, the NAACP Legal Defense Fund, Ralph Nader, and the legal aid and public defender movements. This essay seeks to reconsider Legal Liberalism in the light of the Pragmatist approach and to offer a tentative appraisal of the newcomer. It begins by explicating the sometimes - tacit premises of Legal Liberalism and exploring its shortcomings. It then introduces the contrasting premises of the Pragmatist approach as they appear in a variety of recent works of legal scholarship. It illustrates the Pragmatist approach with a discussion of two case studies - one of drug courts and one of \"second generation\" employment discrimination remedies. It concludes with some comments about ambiguities and limitations of Legal Pragmatism.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"46 1","pages":"127"},"PeriodicalIF":0.0,"publicationDate":"2003-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67737975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine","authors":"Maxwell L. Stearns","doi":"10.2139/SSRN.416301","DOIUrl":"https://doi.org/10.2139/SSRN.416301","url":null,"abstract":"While the commerce clause neither mentions federal courts nor expressly prohibits the exercise of state regulatory powers that might operate concurrently with Congressional commerce powers, the Supreme Court has long used the dormant commerce clause doctrine to limit the power of states to regulate across a diverse array of subject areas in the absence of federal legislation. Commentators have criticized the Court less for creating the doctrine than for applying it in a seemingly inconsistent, or even haphazard, way. Past commentators have recognized that a game theoretical model, the prisoners' dilemma, can be used to explain the role of the dormant commerce clause doctrine in promoting cooperation among states by inhibiting a regime of mutual defection. This model, however, provides at best a partial account of existing dormant commerce clause doctrine, and sometimes seems to run directly counter to actual case results. The difficulty is not the power of game theory to provide a positive account of the cases or to provide the dormant commerce clause doctrine with a meaningful normative foundation. Rather, the problem has been the limited choice of models drawn from game theory to explain the conditions in which states rationally elect to avoid mutually beneficial cooperative strategies with other states. Professor Stearns shows how a state might avoid cooperation in a situation not captured in the prisoners' dilemma account to disrupt a multiple Nash equilibrium game, thus producing an undesirable mixed strategy equilibrium in place of two or more available pro-commerce, Nash equilibrium outcomes. At the same time, the defecting state secures a rent that only became available as a consequence of the Nash equilibrium, pro-commerce strategies of surrounding states, and that is closely analogous to quasi rents described in the literature on relational contracting. The combined game theoretical analysis, drawing upon the prisoners' dilemma and multiple Nash equilibrium games, not only explains several of the most criticized features of the dormant commerce clause and several related doctrines, but also underscores the proper normative relationship between the dormant commerce clause doctrine and various forms of state law rent seeking.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"45 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2003-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68714107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?","authors":"R. M. Cassidy","doi":"10.2139/SSRN.401220","DOIUrl":"https://doi.org/10.2139/SSRN.401220","url":null,"abstract":"In this article, the author discusses the important and previously unexplored topic of whether the law should recognize a future harms exception to the clergy-penitent privilege, similar to that recognized in the area of psychotherapist-patient and attorney-client privileges. After tracing the origins and current application of the clergy-penitent privilege in America, the author discusses how the privilege as currently applied in most states admits of no exceptions, and is unnecessarily expansive in breadth. Using the hypothetical of a homicidal spouse who reveals to his minister an intent to murder his wife, the article compares the ethical and legal duties of a minister with those of an attorney and a psychotherapist. The author concludes that the state's compelling interest in protecting public safety in such a situation outweighs the parties' interests in confidentially, and urges adoption of a limited exception to the privilege for communications pertaining to future violent crimes. In the last section of the article, the author argues that such a dangerous person exception to the clergy-penitent privilege would not contravene either the Establishment Clause or the Free Exercise Clause of the First Amendment.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"44 1","pages":"1627"},"PeriodicalIF":0.0,"publicationDate":"2003-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68679313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}