3394 research outputs found
Sort by
Point/Counterpoint on the Miranda Decision: Should It Be Replaced or Retained?
Get PDFIn this point/counterpoint exchange, Professors Paul Cassell and Amos Guiora debate the U.S. Supreme Court’s decision in Miranda v. Arizona. Cassell challenges the decision, arguing that it has had harmful effects on American law enforcement efforts. Cassell cites evidence that the decision led to reduction in crime clearance rates and urges that the restrictions in the decision be replaced by a requirement that the police videotape interrogations. Cassell urges prosecutors to consider arguing that modern tools like videotaping creates a legal regime that allows the technical Miranda rules to be regarded as superseded relics of an outmoded and harmful prophylactic regime. Guiora responds that the Miranda decision was required to protect vulnerable suspects during inherently coercive police interrogation. Guiora reviews the language Chief Justice Warren used in the Miranda decision, noting that Warren was concerned to ensure that a suspect’s basic constitutional rights were respected by law enforcement while conducting custodial interrogation. Guiora concludes that the decision remains as important today as it was when handed down in 1966
Jurisdiction-Specific Wrongful Conviction Rate Estimates: The North Carolina and Utah Examples
Get PDFDetermining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in this country much lower than the rates commonly suggested in other wrongful conviction literature. This Reply underscores the important point of convergence between Thomas’s estimate and my estimates: both are much lower than the conventional wisdom on the subject suggests
The Purpose (and Limits) of the University
Get PDFScholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is in some ways unsurprising. Limits on expressive liberties have always set the boundaries of expression for political communities, and the university is a kind of political community. These boundaries reflect something about a community’s goals, values, and—ultimately—its purpose.
Part I sets forth a normative framework for the university as what the philosopher Alasdair MacIntyre terms a “place of constrained disagreement.” The paradigmatic university under this framework reflects three characteristics: it is dialogical, it is democratic, and it is residential. Part II builds upon this understanding of the university by considering its intersection with five contemporary First Amendment issues: academic freedom, public employee speech, public forums, safe spaces, and religious pluralism
Equal Protection and Scrutinizing Scrutiny: The Supreme Court’s Decision in Sessions v. Morales-Santana
Get PDFThis Note attempts to synthesize the cases on 8 U.S.C. § 1409(c) and provide a workable framework for intermediate scrutiny in the equal protection realm. Intermediate scrutiny, like all levels of scrutiny, is an ends-means balancing test. Under intermediate scrutiny, the ends must be “important.” The interest cannot be “hypothetical” or “invented post hoc in response to litigation.”234 Instead, it must be the actual reason behind the statutory classification and this must be clearly demonstrated by the government. On the other side, the means must “substantially relate” to the asserted interest. The means chosen cannot result from overbroad assumptions about the way men and women are. But they do not have to be the leastdiscriminatory means possible, as in strict scrutiny. As long as the means relate to real physical differences, the means are likely to “substantially relate” to its objectives. In short, the means have to work, but they do not have to be the only ones that would
Broken Promises: How Debt-financed Higher Education Rewrote America’s Social Contract and Fueled a Quiet Crisis
Get PDFThe U.S. student loan market stands at $1.5 trillion—the second largest consumer debt market in the country. Despite the vast size of this market and the far-reaching spillover effects of student loan debt on individuals and communities, the American higher education system increasingly relies on debt financing as the predominant mechanism by which American families pay for college. Furthermore, student loans still lack a comprehensive twenty-first century consumer protection infrastructure. Researchers and policymakers are only now beginning to acknowledge the threat runaway student debt poses to the American social contract - even as millions of borrowers across the country struggle with the consequences of this quiet crisis
The Economics of American Higher Education in the New Gilded Age
Get PDFStudent debt is a function of three factors: the cost of higher education, the extent to which that cost is subsidized through sources other than students and their families, and the percentage of nonsubsidized revenue that is supplied via loans rather than out-of-pocket payments.
The first factor is a product of how much money colleges and universities choose to spend. The second is determined by total value of the many sources of subsidization upon which higher education draws. The third is a function of the relative wealth or poverty of the people who make up the student bodies at American higher education institutions.
This Article will focus on the first two factors, while addressing the increasingly common claim that, in recent years, higher education in America has been “defunded.
Federal Student Aid: Can We Solve a Problem We Do Not Understand?
Get PDFAt over $1 trillion, with more than 8 million borrowers in default, the federal student loan program is in trouble. There is no question that policymakers will do their best to fix it in the coming years. The only question is whether they will have the evidence they need to make informed judgments about what ails our student loan program, and what can cure it.
In the coming years, advocates, policymakers, and researchers should focus on gathering data and information on all possible causes of the failures in the student loan program. As the previous Part describes, the public has a number of tools at its disposal to procure more data and information. Individual organizations may, of course, use these tools on their own, but there are compelling reasons to think more broadly.
By pooling their capacity to make requests and sharing the results, advocates and researchers can move toward a broader base of information for the entire higher education policy field. A collective effort toward improved information on the student loan program might include a narrow set of “research” questions—or areas of inquiry—that organizations will pursue together, and an independent repository that stores the results of these inquiries in an easily searchable format
Much Ado About Holdup
Get PDFThe policy debate surrounding patent hold-up in markets for standardized products is now well into its second decade with no end in sight. Fundamental questions including the definition of hold-up, whether it exists in the marketplace, and what impact it has on innovation, continue to bedevil scholars, policy makers and industry. Yet it is not clear that this debate needs to continue. Patent hold-up is a pattern of market behavior, not a legally-cognizable wrong. Whether it is commonplace or rare is largely irrelevant to liability in any given case. To the extent that hold-up behavior constitutes an abuse of market power, with resulting harms to competition, longstanding doctrines of antitrust and competition law exist to sanction it. To the extent that hold-up impedes the efficient operation of standard-setting processes, SDOs can, and have, adopted internal procedures, including disclosure and licensing requirements, to curtail that behavior. Thus, the ongoing hunt for empirical evidence of systemic patent hold-up in standardized product markets, or a lack thereof, seems a fruitless academic exercise. The absence of systemic hold-up actually tells us little about individual firm behavior that can and should be sanctioned by the law, and it may thus be time to close the debate over the systemic prevalence of this form of behavior
Cleaning Up Our Toxic Coasts: A Precaution and Human Health-Based Approach to Coastal Adaptation
Get PDFHurricanes in the United States in 2005, 2012, and 2017 have all revealed an insidious problem for coastal climate change adaptation: toxic contamination in the coastal zone. As sea levels rise and violent coastal storms become increasingly frequent, this legacy of toxic pollution threatens immediate emergency response, longer term human health, and coastal ecosystems’ capacity to adapt to changing coastal conditions.
Focusing on Hurricane Harvey’s 2017 devastation of Houston, Texas, as its primary example, this Article first discusses the toxic legacy still present in many coastal environments. It then examines the existing laws available to clean up the coastal zone—CERCLA, RCRA, and the Coastal Zone Management Act at the federal level, land use planning, and state tort law—both to identify ways in which states and the federal government could more effectively implement existing law and to suggest improvements to these existing laws to more emphatically prioritize the elimination of toxic coastal legacies. It concludes with three specific recommendations that precautionarily prioritize human health considerations in coastal management as a means of reducing coastal toxicity in the Anthropocene
The Effect of FRAND Commitments on Patent Remedies
Get PDFThis chapter addresses a special category of cases in which an asserted patent is, or has been declared to be, essential to the implementation of a collaboratively-developed voluntary consensus standard, and the holder of that patent has agreed to license it to implementers of the standard on terms that are fair, reasonable and non-discriminatory (FRAND). In this chapter, we explore how the existence of such a FRAND commitment may affect a patent holder’s entitlement to monetary damages and injunctive relief. In addition to issues of patent law, remedies law and contract law, we consider the effect of competition law on this issue