Santa Clara law review最新文献

{"title":"Essay: A \"safety model\" perspective can aid diagnosis, prevention, and restoration after criminal justice harms","authors":"James M. Doyle","doi":"10.2139/SSRN.3171542","DOIUrl":"https://doi.org/10.2139/SSRN.3171542","url":null,"abstract":"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"59 1","pages":"107-134"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68568523","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":"Making Sense of Secondary Effects Analysis After Reed v. Town of Gilbert","authors":"L. Jacobs","doi":"10.2139/SSRN.2962674","DOIUrl":"https://doi.org/10.2139/SSRN.2962674","url":null,"abstract":"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"57 1","pages":"385"},"PeriodicalIF":0.0,"publicationDate":"2017-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2962674","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47174513","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":"Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?","authors":"Orhun Hakan Yalincak","doi":"10.2139/ssrn.2293449","DOIUrl":"https://doi.org/10.2139/ssrn.2293449","url":null,"abstract":"In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, and in fact, sometimes required to increase a defendant’s sentence based on relevant conduct, of which he was acquitted at trial, or conduct for which he was never charged. This article highlights the issues that arise from the use of acquitted conduct sentencing under the now advisory U.S. Sentencing Guidelines. The use of acquitted conduct under the relevant conduct provisions of the Guidelines has resulted in substantially longer prison sentences with a disparate impact on racial and ethnic minorities. Acquitted conduct sentencing treats the offense admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as only the starting point in calculating a defendant’s sentence; the modified real offense approach, which incorporates relevant conduct and mandates consideration of acquitted conduct, determines the end sentence. This article concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this article to offer a comprehensive solution or alternative to the use of acquitted conduct at sentencing, the key observation is that since the common thread linking the constitutional and normative issues arise from the fragmented nature of U.S. sentencing policy, the solution must start with re-conceptualizing the theories underlying sentencing in the United States.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"54 1","pages":"676"},"PeriodicalIF":0.0,"publicationDate":"2014-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2293449","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68071730","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":"Constitutional Theory and the Activismometer: How to Think About Indeterminacy, Restraint, Vagueness, Executive Review, and Precedent","authors":"Christopher R. Green","doi":"10.2139/SSRN.2232453","DOIUrl":"https://doi.org/10.2139/SSRN.2232453","url":null,"abstract":"Constitutional theory is bedeviled by five persistent controversies: (1) what to do when historical evidence is difficult to assess and does not readily resolve particular disputes; (2) how to define judicial activism and decide how much of it is proper; (3) how to deal with vagueness and borderline cases; (4) how to understand the relationship of judicial review and executive review; and (5) how to reconcile interpretive theory with possibly-erroneous precedent. This article contends that these problems can be solved, or at least framed to make a solution possible, by understanding the relationship of knowledge to the Constitution. I defend three principles regarding our knowledge of the Constitution, all consistent with either originalist or non-originalist constitutional ontologies. First, assertions about the Constitution require knowledge; agnostics may not legitimately impose constitutional judgments on others. Second, constitutional knowledge, like knowledge about anything, requires more evidence as stakes increase; the weightier we deem judicial review, the more certainty it demands. Third, those in a position to speak authoritatively about the Constitution — which is not all officials at all times — should not ignore relevant evidence. These three principles can put our five controversies on the road to solution: (1) The independence of these knowledge-related principles from the relationship of the Constitution to history explains why the prospect of constitutional ignorance neither requires nor undermines originalism. (2) Improper judicial activism is using too low a standard for knowledge about the Constitution, speaking despite agnosticism, or defining one’s role in constitutional conversation too broadly. Improper judicial passivity is using too stringent a standard, suppressing evidence relevant to satisfying it, or defining one’s role in constitutional conversation too narrowly. (3) Combined with these principles, an epistemic view of vagueness — which posits precise, but unknown, boundaries to concepts — means staying far enough away from uncertain constitutional boundaries given the current stakes. (4) Principles of restraint govern legislative and executive action as well as judicial action, but the stakes may differ. Enforce-but-don’t-defend policies like the Obama Administration’s approach to DOMA are justified if executive review is a higher-stakes context than judicial review and the evidence falls between their respective knowledge thresholds — akin to a compensate-but-don’t-imprison policy when proof falls between civil and criminal standards. Further, if executive review requires proof at all, then executive officials must sometimes must enforce laws whose constitutionality they doubt, passing the constitutional buck back to Congress on a “not always my job to enforce the Constitution” rationale. That rationale is independently plausible in an intrabranch form for subordinate executive or judicial officials. (5) If inter","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"54 1","pages":"403"},"PeriodicalIF":0.0,"publicationDate":"2014-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2232453","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68013095","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":"Incarceration's Incapacitative Shortcomings","authors":"Kevin Bennardo","doi":"10.2139/SSRN.2191128","DOIUrl":"https://doi.org/10.2139/SSRN.2191128","url":null,"abstract":"Incapacitation is the removal of an offender’s ability to commit further crime. This essay identifies two distinct types of incapacitative effects: offense-specific incapacitation and victim-specific incapacitation. The former focuses on limitations on the offender’s range of conduct. The latter focuses on limitations on the offender’s access to particular populations. As a punishment, incarceration incapacitates quite incompletely. Because imprisonment does not render inmates totally unable to commit crime, it fails to achieve complete offense-specific incapacitation. And, because it merely substitutes one set of potential victims for another, imprisonment fails on the total victim-specific incapacitation front as well. Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations. When the incapacitative benefit of incarceration is discussed, however, it is not usually described in such a circumscribed way. Rather, imprisonment is often said to fully achieve incapacitation by removing offenders from “society.” By excluding the victims of prison crimes from the relevant measuring population, such statements imply that the sentencing authority possesses no interest in such crimes. To avoid such erroneous discounting, this essay endeavors to accurately describe the offense-specific and victim-specific incapacitative benefits and limitations of incarceration.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"54 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67977881","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":"Three-Dimensional Sovereign Immunity","authors":"Sarah L. Brinton","doi":"10.2139/ssrn.2228377","DOIUrl":"https://doi.org/10.2139/ssrn.2228377","url":null,"abstract":"The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"54 1","pages":"237"},"PeriodicalIF":0.0,"publicationDate":"2014-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68008229","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":"Take Off the [Color] Blinders: How Ignoring the Hague Convention’s Subsidiarity Principle Furthers Structural Racism Against Black American Children","authors":"D. Gossett","doi":"10.2139/SSRN.2400603","DOIUrl":"https://doi.org/10.2139/SSRN.2400603","url":null,"abstract":"The Hague Convention on Intercountry Adoption, to which the United States subscribes, was established to stem the tide of corruption in international adoption. It sets adoption practice standards for member countries and, through its subsidiarity principle, provides for international adoption as a child’s best interest only when intra-country adoption is not available. However, the United States currently allows its citizens to adopt from countries that refuse to adhere to the Hague Convention, creating a two-system approach to international adoption, and intra-country adoption avenues are not being exhausted prior to U.S. international adoptions. The United States is currently the largest “receiving country” in international adoption, but even as the globalization of the adoption industry has led to a more culturally diverse American population, the United States is certainly not colorblind in its approach to adoption. Despite adherence to post-racial thought, the children aging out of foster care unadopted are disproportionately black, and race still negatively influences industry standards. What is more, the United States has become known as a “sending country,” as it ships many of its black and biracial foster care children abroad to find homes, leading some to call the practice of international adoption “covert racism.” This Article suggests, just as Derrick Bell’s Interest Convergence Theory argued that colorblindness was co-opted through Brown v. Board of Education to serve the interests of white elites, that the best interests of the child standard has been co-opted in adoption merely to satisfy predominantly white demands for children. The Children in Families First Act has even been introduced to circumvent the Hague’s subsidiarity principle and to provide more children for international adoption. However, the Article concludes that the United States should not allow international adoptions – whether to or from the United States – until all domestic placement efforts have been exhausted, in line with the Hague’s subsidiarity principle. The Article ultimately calls for abolishment of the current U.S. two-system approach to international adoption that circumvents Hague protocols and protections and contributes to the structural racism against black American children.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"55 1","pages":"261"},"PeriodicalIF":0.0,"publicationDate":"2014-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182147","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":"\"Offer to Sell\" As a Policy Tool","authors":"Lucas S. Osborn","doi":"10.2139/ssrn.2026941","DOIUrl":"https://doi.org/10.2139/ssrn.2026941","url":null,"abstract":"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2026941","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67864991","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":"Federal Disability Discrimination Law and the Toxic Workplace: A Critique of ADA and Section 504 Case Law Addressing Impairments Caused or Exacerbated by the Work Environment","authors":"John Rumel","doi":"10.2139/SSRN.2771316","DOIUrl":"https://doi.org/10.2139/SSRN.2771316","url":null,"abstract":"This article examines a line of cases addressing the toxic workplace under the ADA and Section 504, which hold that, where an impairment is caused solely by the work environment and substantially limits major life activities other than working, the question of whether a worker is disabled must be evaluated under so-called foreclosure or class-based analysis. The article discusses the framework for traditional disability discrimination analysis, and then tracks the line of cases deviating from the traditional analysis. Ultimately, the article rejects the holding in these cases, demonstrating that the courts’ focus on causation (a) runs contrary to Congressional intent, (b) is illogical and improperly requires additional issues of proof, and (c) prematurely truncates ADA and Section 504 analysis by resolving cases at the disability stage and not evaluating reasonable accommodation issues. The article concludes that the appropriate fix should come from future judicial decisions, not Congress.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"51 1","pages":"515"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68308498","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":"An Economic Defense of Flexibility in IPR Licensing: Contracting Around 'First Sale' in Multilevel Production Settings","authors":"A. Layne-Farrar","doi":"10.2139/SSRN.1734865","DOIUrl":"https://doi.org/10.2139/SSRN.1734865","url":null,"abstract":"The legal doctrine of first sale (or exhaustion for patents) dictates that the first sale of any good (intermediate or final) that embodies licensed IPR exhausts the holder’s rights. Thus, a patent holder is held to licensing just one party in a good’s production chain and an original copyright holder cannot affect the resale of a copyrighted good. The Supreme Court’s decision in the Quanta case strengthened the patent exhaustion rule, but the ruling appears to leave open the possibility that the parties could contract around patent exhaustion. In this paper, I present an economic argument in support of such contractual flexibility in situations involving intermediate production goods. In particular, I argue that under several real world circumstances the ability to license more than one party in a vertical production process makes economic sense and does not result in anticompetitive harm. Concerns such as \"double dipping,\" raised during Quanta, do not hinge on multi-level licensing. Thus, as long as the parties involved can be presumed to understand the terms and conditions, they should be free to contract around a default \"first sale\" rule.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"51 1","pages":"1149"},"PeriodicalIF":0.0,"publicationDate":"2010-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67729806","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}