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The Bystander During the Holocaust
Get PDFThe German people today have embraced their sense of collective responsibility. They have accepted the seamless case of genocide and its implications are part of the national soul. They have come to full reckoning, determined to remember a difficult past and not repeat it. The Austrians, the Dutch, and the Poles have yet to reach the point of confession or even an awareness of responsibility. Perhaps the most remarkable symbol of national responsibility is the grassroots Stolperstein or Stumble Stone project, which began in Germany in 1992 with the goal to remember the victims of the Holocaust individually. Cobblestone-size concrete squares bearing a brass plate inscribed with the names and birth and death dates of victims are set in the sidewalk at the victim’s last place of chosen residence prior to deportation. To date, more than 50,000 markers have been laid in eighteen European countries. This is an intimate reminder of the Holocaust. It recalls the taking of neighbors from their homes and their unjust deaths. It rebuilds the fabric of community. Explicit in this is the message that there are no innocent bystanders
Still Handcuffing the Cops? A Review of Fifty Years of Empirical Evidence of Miranda\u27s Harmful Effects on Law Enforcement
Get PDFThe fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review the FBI’s nationwide data on crime clearance rates to shed light on any changes in the ability of police to solve crimes. Specifically, we report the results of regression equations on crime clearance rates from 1950 to 2012, controlling for factors apart from Miranda that might be responsible for changes in clearance rates. Even controlling for these factors, we find statistically significant reductions in crime clearance rates after Miranda for violent and property crimes, as well as for robbery, larceny, and vehicle theft. We also quantify the number of lost clearances that appear to be due to Miranda. We also briefly conclude by encouraging the Supreme Court, as well as commentators and policy makers, to consider alternative ways of regulating police interrogation that do not have such detrimental effects on police efforts to apprehend potentially dangerous criminals
It\u27s Not Just an Offshore Wind Farm: Combining Multiple Uses and Multiple Values on the Outer Continental Shelf
Get PDFMarine aquaculture and marine-based alternative energy, especially offshore wind, are increasingly competing for space on the Outer Continental Shelf and the water column above it with each other and with more traditional ocean uses. The laws governing this increasingly crowded space need to become better aware of changing uses of and values for the ocean and to promote rational planning of how this space is used in the future.In one approach, various regions of the U.S. coast are actively engaged in comprehensive marine spatial planning. Marine spatial planning is a process designed to prioritize, balance, and rationally allocate the wide variety of values that a number of interested communities place on the ocean. It is, to be sure, a complex endeavor, but it currently offers the best process available for identifying, negotiating, and ameliorating value and use conflicts in the ocean.However, technology is increasingly offering other options. Planned multiple use is a familiar concept for terrestrial public lands, but it has a less robust history in the marine realm. New technologies allow the potential for some of the more creative designs in offshore renewable energy, especially offshore wind, to alleviate several possible conflicts by allowing multiple uses (energy production, aquaculture, potentially recreation and living space) in the same physical space, freeing up other areas of the ocean for environmental and cultural protection. Permitting laws and regulations need to evolve to recognize and promote these multiple-use marine technologies, streamlining the multijurisdictional bureaucracy that exists to govern offshore structures
Enemy Construction and the Press
Get PDFWhen the president of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave. This article examines the fuller components of that enemy construction, beyond the overt use of the label. It offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. It then explores the potential motivations for and consequences of enemy construction. We argue that enemy construction is particularly alarming when the press, rather than some other entity, is the constructed enemy. Undercutting the watchdog, educator, and proxy functions of the press through enemy construction leaves the administration more capable of delegitimizing other institutions and constructing other enemies—including the judiciary, the intelligence community, immigrants, and members of certain races or religions—because the viability and traction of counter-narrative is so greatly diminished
The Supreme Court\u27s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?
Get PDFSince 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights. The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other
Choosing Corporations Over Consumers: The Financial Choice Act of 2017 and the CFPB
Get PDFThe Financial Choice Act of 2017 is appropriately named in at least one sense: its proposed restrictions on the authority of the Consumer Financial Protection Bureau reflect a choice by the House of Representatives to protect financial companies at the expense of consumers. This choice is borne out by the data. As this empirical review of CFPB enforcement cases demonstrates, nearly all of the relief provided to American consumers in CFPB enforcement cases arose where a bank, credit union, or other finance company deceived their customers about a material aspect of their product or service. Between 2012 and 2016, the CFPB’s enforcement efforts generated 73 million in consumer relief and $28 million dollars in civil money penalties. Between the Choice Act’s elimination of UDAAP claims and its proposed exemption for payday lenders, had the Act been in effect from 2012 to 2016, many consumers would have lost out on billions of dollars of relief, and even more would have fallen prey to unchecked violations of numerous consumer protection laws. This empirical comparison of the proposed Choice Act’s provisions to the CFPB’s law enforcement track record leaves little doubt that if the bill passes, meaningful consumer law enforcement will grind to a halt within the rebranded Consumer Law Enforcement Agency. Indeed, the Choice Act’s renaming of the CFPB as the Consumer Law Enforcement Agency is ironic and misleading. The Choice Act makes a stark and unapologetic choice favoring corporate wrongdoing and lawlessness over consumers
The Conflation of Patent Eligibility and Obviousness: Alice\u27s Substitution of Section 103
Get PDFoai:dc.law.utah.edu:onlaw-1000Since the birth of the abstract ideas concept, the judiciary has struggled to define abstract idea and analyze what is patentable under this exception to Section 101. The Supreme Court’s decision in Alice has not clarified the complexities that have arisen from the abstract ideas category. Instead, it falls in line with the warnings of the dissent in Flook, where Justice Stewart advises against the majority’s use of “inventive application” because it conflates the Section 101 and Section 103 inquiries. In order to avoid such conflation, the Alice framework cannot be adopted. Step one of the framework should be eliminated because all inventions embody patent ineligible matter at some level, and it is too difficult to identify an abstract idea without a definitional or categorical understanding of what an abstract idea is. Step two of the framework must be reworked to prevent the courts from adopting an obviousness analysis under Section 101. Rather than using the “inventive concept” language, the Court should address step two as a question of preemption, asking whether the claims in the patent are overly broad and prevent other inventors from building upon the underlying principle. If this suggestion is not possible, the Court should create a bright line rule, at a minimum, to prevent the statutory constraint on the obviousness analysis from being ignored. That is, the courts should not be allowed to break down the claim to determine whether it is conventional. The courts must analyze the claim as a whole to determine if the claim adds enough to transform the underlying idea into a patentable claim
Technical Standards, Standards-Setting Organizations and Intellectual Property: A Survey of the Literature (with an Emphasis on Empirical Approaches)
Get PDFImportant theoretical work relating to standards has been done in the areas of SSO dynamics, firm behavior, market effects of patents, and royalty pricing. This work has been supplemented by a significant body of research and empirical data on the acquisition and disclosure of patents within SSOs, particularly in the ICT sector. Several important catalogs and analyses of SSO patent policies now exist, together with rich databases of SSO membership and policy data. Despite this large body of literature, there are numerous areas at the confluence of intellectual property and standardization that warrant further investigation. These include: the influence and internal organization of consortia and other informal standards groups; the prevalence and market impact of de jure and de facto royalty-free standards; the effect of patents on standardization in growing fields outside of ICT including clean technology, medical devices and automotive infrastructure; the interaction of technology standards with open source software; the impact of product certification and certification marks on technology products and markets; and the institutional, legal and policy landscape of standardization outside of North America and Europe, particularly in China and other Asian economies. In addition, more public data is needed regarding patent licensing and royalty rates for standardized technologies. The data that currently exists is gleaned largely from public sources such as litigation records, government licenses and public securities filings. This data, however, represents only the tip of the iceberg. The largest and most meaningful accumulation of data concerning patent licensing is locked within the files of private firms, subject to strict confidentiality restrictions, and beyond the reach of researchers, policy makers, enforcement agencies and courts. Greater public access to this data has the potential to lower licensing transaction costs, reduce the number of disputes regarding FRAND royalty rates, improve the accuracy of judicial damages determinations, inform agency enforcement decisions, and improve policy making. As such, it is in the interest of all participants in the standardization ecosystem to contribute to the growing public data resources in this important area of economic activity
Handcuffing a Third Grader? Interactions Between School Resource Officers and Students with Disabilities
Get PDFThe expansion of police involvement at schools has had serious implications for students with disabilities. By enacting IDEA, Congress recognized that these students deserve special protections and entitlements. In the most recent amendments to this federal law, Congress included important guidelines regarding functional behavioral assessments (FBAs) and behavior intervention plans (BIPs) to outline how school personnel must respond to undesired behavior of students with disabilities. Recognizing the special behavioral needs of students with disabilities is one way to reduce the current reality where students with disabilities are suspended, expelled, restrained, and secluded at much higher rates than their peers.
Although SROs can play a valuable role in the school environment, SROs also must recognize the unique needs and legal protections of students with disabilities. The existing case law reveals two important points. First, SROs can act reasonably towards students with disabilities where safety concerns exist. Second, SROs also can overreact and respond in punitive ways when responding to behavioral incidents involving students with disabilities. Of concern, a few of these recent cases have involved SROs mistreating young children with disabilities.
These cases reveal the need for a comprehensive training program for SROs, clear delineation of the scope of—and limitations on—the SROs’ duties, and strict adherence by both school personnel and the SROs to their respective roles. Ultimately, we hope that this article will increase the awareness of this significant issue and result in a multi-prong approach that involves a variety of stakeholders, including school administrators, teachers, SROs, and parents of students with disabilities
A New Perspective on FRAND Royalties: Unwired Planet v. Huawei
Get PDFIn Unwired Planet v. Huawei, Mister Justice Colin Birss of the UK High Court of Justice (Patents) has issued a detailed and illuminating opinion regarding the assessment of royalties on standards-essential patents (SEPs) that are subject to FRAND (fair, reasonable and non-discriminatory) licensing commitments. Among the important and potentially controversial rulings in the case are: (1) there is but a single FRAND royalty rate applicable to any given set of SEPs and circumstances, (2) neither a breach of contract nor a competition claim for abuse of dominance will succeed unless a SEP holder’s offer is significantly above the true FRAND rate, (3) FRAND licenses for global market players are necessarily global licenses and should not be limited to a single jurisdiction, and (4) the “non-discrimination” (ND) prong of the FRAND commitment does not imply a “hard-edged” test in which a licensee may challenge the FRAND license that it has been granted on the basis that another similarly situated licensee has been granted a lower rate, so long as the difference does not distort competition between the two licensees