Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law最新文献

{"title":"Patents and the First Amendment","authors":"D. Burk","doi":"10.2139/SSRN.3119362","DOIUrl":"https://doi.org/10.2139/SSRN.3119362","url":null,"abstract":"Patents are intended as a means of promoting innovation through private pecuniary incentives. But the patent system has for some time been on a collision course with guarantees of expressive freedom. Surprisingly, no one has ever subjected patent doctrine to a close First Amendment analysis. In this paper I show, first, that patents clearly affect expressive freedom, second that patents are subject to legal scrutiny for their effect on expressive rights, and third that patents are not excused from scrutiny by virtue of constituting property rights or by virtue of private discretion. After examining the patent system in terms of familiar First Amendment metrics such as strict scrutiny, narrow tailoring, governmental interest, and least restrictive means, I conclude that even though many patents may survive First Amendment analysis, many will not.","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"41 1","pages":"197-263"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90540228","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":"Retaining Life Tenure: The Case for a Golden Parachute","authors":"David R. Stras, R. Scott","doi":"10.2139/SSRN.783367","DOIUrl":"https://doi.org/10.2139/SSRN.783367","url":null,"abstract":"The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional. Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"08 1","pages":"1397-1467"},"PeriodicalIF":0.0,"publicationDate":"2005-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86021699","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":"Your Money or Your Speech: The Children's Internet Protection Act and the Congressional Assault on the First Amendment in Public Libraries","authors":"Steven D. Hinckley","doi":"10.2139/SSRN.413361","DOIUrl":"https://doi.org/10.2139/SSRN.413361","url":null,"abstract":"This article examines the inherent conflict between two Congressional approaches to public access to the Internet - the provision of federal funding support to schools and public libraries to ensure broad access to online information regardless of financial means, and federal restrictions on children's use of school and public library computers to access content that the government feels could be harmful to them. It analyzes the efficacy and constitutionality of the Children's Internet Protection Act (CIPA), Congress's attempt to use its powers of the purse to control objectionable online content in the very institutions it has used to promote equality of Internet access, particularly for children. The article looks first at Congress's early attempts to directly control categories of online speech through the passage of the Communications Decency Act (CDA) and the Child Online Protection Act (COPA), two statutes that proved to be so insensitive to classic First Amendment principles that they were essentially dead on arrival at the courthouse. The article then focuses on Congress's strategic shift away from direct proscriptions of online content and toward control of Internet speech indirectly through the use of its spending power. CIPA attempts to regulate online content by making the distribution of Universal Service Fund (E-Rate) and related federal school and library technology funds contingent upon the recipient institution's agreement to place filtering software on all Internet-accessible computers. The article examines the history of Congress's use of its spending power as a regulatory tool, and takes issue with Congress's description of CIPA's funding conditions as a routine use of that power immune from First Amendment constraints. Arguing that public libraries are limited public forums subsidized by the government for the express purpose of facilitating broad private expression, the article recommends judicial review of CIPA based on the same strict scrutiny principles used by the Supreme Court in Rosenberger and Velazquez to invalidate similar government funding decisions that forced viewpoint and content-based regulation of private speech. The article contends that Congress has not met its burden under strict scrutiny of showing that Internet filtering in public libraries is constitutionally necessary to achieve the government's interests in protecting children, and argues that software filters cannot possibly be applied without compromising a great deal of library patrons' constitutionally protected online speech. The article concludes that, stripped of the facade of an innocent use of Congress's spending power, the Children's Internet Protection Act is merely the Computer Decency Act and the Child Online Protection Act in disguise - yet another clumsy congressional attempt to censor Internet content without sufficient concern for the damage it will do to the First Amendment rights of library patrons, many of whom use libraries as the","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"29 1 1","pages":"1025-1099"},"PeriodicalIF":0.0,"publicationDate":"2003-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89298061","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":"From conception until birth: exploring the maternal duty to protect fetal health.","authors":"Moses Cook","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"80 4","pages":"1307-40"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24536586","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 allure and peril of genetics exceptionalism: do we need special genetics legislation?","authors":"S. Suter","doi":"10.2139/SSRN.276875","DOIUrl":"https://doi.org/10.2139/SSRN.276875","url":null,"abstract":"Genetics discrimination has become a large concern among scholars, scientists, the media, and the public. In the rush to confront serious and legitimate concerns about potential abuses of genetic information, policy makers and commentators often fail to ask whether these concerns are unique. Most scholarship on genetics, explicitly or implicitly, adopts a \"genetics exceptionalism\" perspective, i.e., a view that genetic information is qualitatively different from other medical information and therefore raises unique social issues. This article challenges genetics exceptionalism and argues that protections against abuse of information should not be limited to genetic information, but should extend to other medical information. The article begins by describing the allure of genetics exceptionalism among the popular culture, media, scientists, and policy makers. This perspective has inspired forty-four states to enact genetics legislation and numerous genetic bills at the federal level. Attempts to define genetic information for legislative purposes, however, demonstrate the inherent difficulty in trying to distinguish genetic information from medical information. Moreover, genetic information is an under- and over-inclusive category with respect to the policy concerns motivating genetics legislation. Not all genetic information requires protective legislation, making genetics legislation over-inclusive. More important, a great deal of other medical information shares many of the features of genetic information that have inspired this legislation, making it dramatically under-inclusive. This under-inclusiveness is problematic because it results in inequities between similarly situated individuals and, worse, because it exacerbates class inequities. While genetic risks transcend socio-economic class, non-genetic risks frequently do not. The poor and minorities face a disproportionate degree of non-genetic, environmental risks and, therefore, are disproportionately disadvantaged by laws that protect against discrimination based only on genetic risks. This article asserts that the resulting inequities of genetics legislation raise questions about important, though under-enforced, constitutional values and norms embodied in the Equal Protection Clause. Although genetics legislation would probably survive judicial review, equal protection theory, nevertheless, offers normative policy reasons why legislators should find the inequities of genetics legislation morally problematic. In order to avoid those inequities, the article concludes by offering suggestions for more comprehensive protections that extend beyond genetic information. In the wake of the recent privacy regulations promulgated by the Department of Health and Human Services, which set a national \"floor\" of privacy standards, states must begin to evaluate the relationship between their genetics privacy statutes and the HIPAA privacy regulations. This provides an opportune moment for state legisl","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"79 3 1","pages":"669-748"},"PeriodicalIF":0.0,"publicationDate":"2001-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.276875","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68306739","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 conceptual framework for genetic policy: comparing the medical, public health, and fundamental rights models.","authors":"L B Andrews","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"79 152","pages":"221-85"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25636667","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 allure and peril of genetics exceptionalism: do we need special genetics legislation?","authors":"S M Suter","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"79 3","pages":"669-748"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22379927","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":"Surpassing the material: the human rights implications of informed consent in bioprospecting cells derived from indigenous people groups.","authors":"A O Wu","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"78 3","pages":"979-1003"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25679452","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":"Sacrificing patients for profits: physician incentives to limit care and ERISA fiduciary duty.","authors":"A K Marsh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"77 4","pages":"1323-42"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25679451","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":"AIDS and the blood supply: an analysis of law, regulation, and public policy.","authors":"S R Salbu","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83486,"journal":{"name":"Washington University law quarterly. Washington University (Saint Louis, Mo.). School of Law","volume":"74 4","pages":"913-80"},"PeriodicalIF":0.0,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25679450","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}