Santa Clara law review最新文献

{"title":"Legal Aspects of Autonomous Driving","authors":"Sven Beiker, Ryan Calo","doi":"10.2139/SSRN.2767899","DOIUrl":"https://doi.org/10.2139/SSRN.2767899","url":null,"abstract":"Autonomous driving and autonomous vehicles are among the most intensively researched and publicly followed automotive technologies. This technology could dramatically improve safety, efficiency, and mobility by taking the driver out of the loop and relying on vehicles to navigate themselves through traffic.As automobiles are becoming more self-reliant in making mission-critical driving decisions, public policies, tort law, and technical standards need to be revisited to prepare courts and the public for the new realities of traffic with autonomous vehicles. This short paper assesses the current situation, gives an outlook of the technical evolution, and proposes first steps in the legal realm.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"52 1","pages":"1145"},"PeriodicalIF":0.0,"publicationDate":"2010-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2767899","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68305387","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":"Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law","authors":"G. S. Gordon","doi":"10.2139/SSRN.2006348","DOIUrl":"https://doi.org/10.2139/SSRN.2006348","url":null,"abstract":"Can singing a song constitute incitement to genocide? A 2009 decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Hutu extremist pop singer Simon Bikindi said it can. But in convicting Bikindi, it failed to apply, much less develop, the incitement law framework it had established, albeit in a piecemeal fashion, through a string of prior opinions (most notably in the famous 'Media Case'). That framework asks judges to consider the purpose, text, context, and relationship between the speaker and subject to determine if a speech constitutes criminal incitement. Critics have pointed to the test's piecemeal development, its supple contours, and the Tribunal's desultory application of it and proposed replacing it with an entirely new test. As African dictators have supposedly cited the ICTR framework to justify stifling legitimate dissent, such a drastic solution is necessary, they argue, to promote freedom of speech and prevent genocide. This Article acknowledges these concerns but proposes a middle-ground approach instead. Given doctrinal glitches in the proposed new tests, the existing framework should be preserved but elements of the new tests should be incorporated as 'evaluative factors' within the 'context' analysis. At the same time, additional contextual reference points (such as the outbreak of war and the personal history of the speaker) should be appended to the existing test. An entirely new element, 'channels of communication,' should be tacked on as well to help distinguish between written versus broadcast media (given that the latter is more effective at provoking imminent lawless violence). Similarly, as suggested by the Bikindi decision, two additional elements - temporality (was the speech uttered within the proper contextual time frame?) and instrumentality (was the speaker responsible for the speech's dissemination) - should be appended to the existing framework. Finally, an incitement-technique typology, which would explicitly recognize various indirect incitement methods (such as 'accusation in a mirror' and 'victim-sympathizer conflation'), should also be integrated into the analysis. This compromise approach will provide the necessary flexibility to permit nuanced incitement analysis while insuring greater degrees of normative coherence, free expression and, most importantly, effective genocide prevention.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"50 1","pages":"607"},"PeriodicalIF":0.0,"publicationDate":"2010-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67846351","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":"Thug Life: Hip Hop's Curious Relationship with Criminal Justice","authors":"A. cummings","doi":"10.2139/SSRN.1434838","DOIUrl":"https://doi.org/10.2139/SSRN.1434838","url":null,"abstract":"I argue that hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States. At base, hip hop lyrics and their cultural accoutrements turns U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment. Prison and punishment philosophy in the U.S. is based on clear principles of retribution and incapacitation, where prison time for crime should serve to deter individuals from engaging in criminal behavior. In addition, the stigma that attaches to imprisonment should dissuade criminals from recidivism. Hip hop culture denounces crime and punishment in the United States in a way that essentially defies the underlying crime and punishment philosophy adopted and championed by U.S. legislators for decades. Hip hop artists, since the inception of hip hop as a musical genre, have rhymed in a narrative format that starkly informs all listeners and fans that the entire foundational regime of prison for crime in the United States is suspect, illegitimate and profane. As U.S. criminal law and punishment is profane and illegitimate to many, as hip hop artists fiercely argue, then the primary foundational underpinnings of U.S. criminal justice is lost on the hip hop generation, that of deterrence and stigma. Because, as hip hop aggressively describes, crime and punishment in the U.S. is fundamentally unfair, inequitable and biased against people of color and the poor, then punishment for committing certain crimes in America is viewed by the hip hop nation as illegitimate and imprisonment for committing suspect crimes is unaffecting. Hip hop culture has engendered in the global hip hop generation a tradition of exposing racial inequality and social injustice throughout the world, but particularly within the United States. To that end, this Essay argues that much like Critical Race Theory espouses a tradition of 'looking to the bottom,' that American purveyors of crime and punishment law consider the viewpoint of the hip hop nation, which espouses a better, more equitable theory of punishment and justice in the United States.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"29 1","pages":"515"},"PeriodicalIF":0.0,"publicationDate":"2009-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1434838","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68181261","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":"Money, Is That What I Want?: Competition Policy & the Role of Behavioral Economics","authors":"M. Stucke","doi":"10.2139/SSRN.1419751","DOIUrl":"https://doi.org/10.2139/SSRN.1419751","url":null,"abstract":"Although the behavioral economics and happiness economic literature are hot areas in legal and economic scholarship, the U.S. policymakers, until recently, have not embraced the literature. That is changing with the financial crisis. Policymakers are re-examining the assumptions underlying many neoclassical economic theories embedded in their policies. This article addresses one cornerstone of neoclassical economic theory, namely that rational consumers pursue their economic self-interests. It is commonly associated with Adam Smith’s famous statement: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own interest.” This assumption of self-interest has had profound policy implications as it pervades many areas of the law.The article first outlines how this assumption of self-interest has shaped U.S. competition policy over the past thirty years. It next surveys the behavioral experiments, which show that many individuals do not solely pursue their self-interest. Indeed, appealing to self-interest, as several of these experiments demonstrate, may lead to suboptimal outcomes. The assumption also disregards the important effect of social, ethical, and moral norms on human behavior. Because the assumption of self-interest is not descriptive, the article next addresses whether governmental policies should advocate the pursuit of self-interest. Using the recent findings from the happiness economic literature, the article shows why appealing to self-interest may make citizens more, not less, miserable. It then discusses the risks if governmental policies prime individuals to pursue their self-interest. The article has broad implications for U.S. economic and legal policies, as the assumption of self-interest implicates, among other things, environmental concerns, consumerism, the problems Americans face in a debt economy, and privacy concerns.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"50 1","pages":"893"},"PeriodicalIF":0.0,"publicationDate":"2009-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1419751","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68178248","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":"Business, the Roberts Court, and the Solicitor General: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much","authors":"B. Joondeph, Srikanth Srinivasan","doi":"10.1093/ACPROF:OSO/9780199859344.003.0002","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780199859344.003.0002","url":null,"abstract":"It has almost become cliche to call the Roberts Court a friend of American business. Nonetheless, especially during the 2007-2008 term, the Court has also handed down a number of decisions favoring plaintiffs (such as employees or consumers) at the expense of business litigants. One complication in drawing firm conclusions about the Roberts Court's approach to business issues is that the current group of Justices has served together for only three years. A more fundamental complication is that other explanatory variables - influences other than a decision's import for American businesses - are certainly at play. In this essay, we explore one such variable that may have been especially significant over the past three years: the content of the arguments presented to the Court by the Solicitor General. To do so, we present an empirical examination of the full universe of the Roberts Court's decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. But when those two positions diverged - most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs - the Roberts Court overwhelmingly sided with the government. How are we to understand this pattern? Does it suggest that the Roberts Court is actually more pro-government than pro-business? Alternatively, does it reflect a meaningful moderation in the Court's sympathy for business interests? Or does it signify something else still? We suggest that the answer may be all or none of the above - in essence, that these decisions leave much unrevealed. Specifically, given the Bush administration's well-known reputation as a strong ally of business, its arguments against the interests of business likely carried a great deal of credibility with the Court. Consequently, decisions by the Roberts Court siding against business litigants, but in favor of the Solicitor General, may show only that the arguments of business litigants in those cases went beyond what the law could permit. At the same time, the Court's siding with the government in business cases may not illustrate the Solicitor General's influence per se as much as it reflects the general agreement between the Justices and the Bush administration on how best to resolve the legal questions at issue. Hence, the decisions may not tell us much about the Roberts Court's underlying attitudes towards business or the federal government-that is, whether, and the extent to which, it is enduringly \"pro-business\" or \"pro-government.\"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"49 1","pages":"1103"},"PeriodicalIF":0.0,"publicationDate":"2009-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60653620","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":"Something Old, Something New - Something Borrowed, Something Blue","authors":"J. Pickerill","doi":"10.5553/eelc/187791072016001001001","DOIUrl":"https://doi.org/10.5553/eelc/187791072016001001001","url":null,"abstract":"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"49 1","pages":"1063"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71039671","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":"The One-Size Fits All Family","authors":"M. Brinig, S. Nock","doi":"10.2139/SSRN.997903","DOIUrl":"https://doi.org/10.2139/SSRN.997903","url":null,"abstract":"Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either in foster homes or in informal substitute caregiving situations, policymakers react by enacting legislation like the Adoption and Safe Families Act and streamlining (within constitutional limits) the procedures for terminating parental rights. One reaction to this phenomenon is to enact default rules that cover the majority of cases, hoping that people who want to do something else will contract their way around the rules. First, policy makers need to choose the right default rules (and arguably do not do so). Still, perhaps this approach is a saner one than the chaos of tailoring family law to fit all our sizes and shapes. But the three examples in the preceding paragraph (marriage, divorce, and child welfare policy) all point to instances that are not good candidates for contracting. The current inquiry reexamines some of what we might call universalist assumptions, concluding that despite good intentions and concern for equal rights, even these big and important policies do not always work the same way for all groups, at least in terms of their effects on children. As long as the laws' effects are not pernicious - that is, they do not adversely affect groups of children in their wake, perhaps there is nothing wrong with promoting these policies. But when they make things better for some children and worse for others, we do think someone should take another look. Sometimes the situation calls for exceptions to statutes, or sometimes further careful empirical studies. We offer evidence to suggest that similar circumstances involving adults' legal relationships have very different consequences for children of different races and genders. We have also shown that foster care (and 'kinship care') have different implications depending on children's race. In these and other situations, social science suggests that law applied equally will have different consequences.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"49 1","pages":"137"},"PeriodicalIF":0.0,"publicationDate":"2007-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67934921","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":"Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States","authors":"Alexa Koenig, Jonathan M. Stein","doi":"10.2139/SSRN.968495","DOIUrl":"https://doi.org/10.2139/SSRN.968495","url":null,"abstract":"This article provides a national overview of the legal status of state-recognized American Indian tribal governments - specifically, those tribes that have been recognized by their respective states, but not the federal government. Part One discusses how state recognition functions within our federalist system and why it has become increasingly important for states and tribes. Part Two categorizes the various state recognition schemes into state law, administrative, legislative and executive recognition processes. Part Three lists the tribes recognized by each state and summarizes each state's regulatory approach to tribal-state relations. Part Four concludes with a brief argument in favor of greater rights on the part of state tribes.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"64 1","pages":"79"},"PeriodicalIF":0.0,"publicationDate":"2007-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915436","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":"Age Matters: Class, Family Formation, and Inequality","authors":"J. Carbone","doi":"10.2139/SSRN.1103603","DOIUrl":"https://doi.org/10.2139/SSRN.1103603","url":null,"abstract":"Age matters. It matters legally - in giving consent for a contract, a marriage or enlistment in the armed forces. It matters practically - for renting a car, securing favorable insurance rates, choosing a date. It certainly matters biologically - we are on the cusp of understating the age-related changes in emotion and cognition. And, I will argue in this article, it matters socially. The age of assumption of adult responsibilities, because of the interaction of physical changes with social structures, may be an important marker of inequality. This article will examine the emergence of class-based differences in the pathways to adulthood through the lens of the new biological studies on brain maturity. Accordingly, it will begin with a section that summarizes the research results suggesting that decision-making after the mid-twenties may be qualitatively different from the decisions of those in their teens and early twenties. Second, it will link the new research on brain development to changing family practices that postpone marriage and childbearing for the middle class into the late twenties and early thirties, while concentrating childbearing, if not always in marriage, in the early twenties for the rest of the population. Third, it will consider the societal support for the different family models by examining the misplaced fight over welfare reform, declining accessibility to contraception and abortion, the unequal nature of workplace support for parents, and the often hidden class subtext of debates over family values. It will end by sketching the implications for a legal research agenda attentive to the implications of age and class.","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"48 1","pages":"901"},"PeriodicalIF":0.0,"publicationDate":"2007-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139915","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":"The fate of stem cell research and a proposal for future legislative regulation.","authors":"Lauren Thuy Nguyen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82640,"journal":{"name":"Santa Clara law review","volume":"46 2","pages":"419-49"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26586759","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}