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Brenda V. Smith, Margo Schlanger, Sheila Bedi, David M. Shapiro, and Lynn S. Branham
In the age of American mass incarceration, a complex legal regime governs prison conditions and presents a host of controversial questions at the intersection of constitutional liberty, statutory interpretation, administrative regulation, and public policy. This is a completely overhauled, re-titled, and much-expanded version of the leading casebook about incarceration. It addresses both pretrial and post-conviction incarceration, presenting Supreme Court and leading lower court case law, statutes, litigation materials, professional standards, academic commentary, and prisoner writing. Topics include conditions of confinement, civil liberties, particular prisoner populations and relevant legal issues (race and national origin discrimination, the particular issues/law governing treatment of incarcerated women, LGBTQ people, and people with disabilities). Litigated remedies (injunctive litigation, damages, the Prison Litigation Reform Act, and criminal prosecution of prison staff), are also covered in detail, as is non-litigation oversight. The casebook is supplemented by an open-access website that offers additional resources and sources for further reading.
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Thomas Williams
No volume on reproductive justice could be complete without addressing the seminal case of Skinner v. Oklahoma. Skinner is the first Supreme Court decision to subject a law limiting reproduction to stringent scrutiny, and it achieves this result by entwining constitutional protection of reproductive liberty with equality. Unlike the reproductive rights framework, which focuses upon the individual’s right to make reproductive choices free from government regulation, reproductive justice emphasizes the political context within which race, gender, class, and other identities intersect to result in reproductive oppression. Skinner foreshadows this broader analysis, by striking down a state sterilization statute not because it interfered with individual liberty but based upon the recognition that governmental power to draw lines regarding who could reproduce and who could not posed the threat of “invidious discriminations … against groups or types of individuals” in violation of the constitutional guarantee of equality.
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Jonas Anderson
Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Patent prosecutors devote substantial effort to crafting patent claims so as to maximize the scope of their right without “reading on” prior art (and thereby defeating novelty). Businesses seeking to enter a technology marketplace must be careful to avoid encroaching patent claims. Thus, when patentees enforce their rights, the interpretation of claim boundaries guides both validity and infringement analysis.
Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court,” district judges began the practice of construing patent claims in advance of trial following so-called “Markman” hearings. These constructions became subject to appellate review after the trial or summary judgment ruling.
The Markman decision thus opened a valuable window into an important facet of patent law and the litigation process. This has led to a wide range of empirical studies examining: (1) reversal rates; (2) the sources and methodologies that judges employ in construing patent claims; and (3) appellate behavior generally. This chapter examines the hypotheses underlying these studies, the data used, the empirical methods deployed, and the principal results. It also suggests directions for further research.
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Jonathan Baker and Andrew Gavil
This essay, written for a volume in honor of Judge Douglas H. Ginsburg, explores the evolution of the rule of reason and its development into a common structured, burden shifting approach guiding judicial decisions under Sections 1 and 2 of the Sherman Act and under Section 7 of the Clayton Act. It highlights the influential role that Judge Ginsburg and the Court of Appeals for the D.C. Circuit, on which he served, played in that evolution.
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Michael W. Carroll
My goal in this chapter is to advance the argument that access denied to resources in digital form is a more serious, and more solvable, problem than one might glean from the literature. Digital networks make access possible to a degree that would have been unimaginable in the analog era. What was once a mix of technological and economic constraints on access is now reduced to legal, rather than technological, constraints. The library community should more explicitly commit itself to the goal of ubiquitous access to digital content.
The role of the library in public life should be to minimize or eliminate these legal barriers to access and use through a mixture of creative and fair licensing arrangements, and policy advocacy on behalf of those currently denied access. To begin to solve this problem, libraries should develop a more robust network consciousness, by which I mean they should realign institutional priorities and resources to explicitly position individual libraries and consortia as network nodes through which patrons can access networked resources or as a site of publication of networked resources. This argument recognizes that a network consciousness should not be the sum total of a library’s attentional focus. For the library has also been, and remains, an intensely local institution whose physicality through its architecture, geography, and relation to its analog resources are as important to library patrons as ever. I am convinced that libraries are capable of meeting the challenges of balancing their local and global roles if institutional leaders make this a priority.
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Michael W. Carroll
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Jennifer C. Daskal
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Christine Farley
This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.
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Andrew Guthrie Ferguson
Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.
This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.
This chapter then examines predictive policing technology as a choice about policing theory and how the purchase of a particular predictive tool becomes – intentionally or unintentionally – a statement about police role. Interestingly, these strategic choices map on to existing policing theories. Three of the traditional policing philosophies – hot spot policing , problem-oriented policing, and community-based policing have loose parallels with new place-based predictive policing technologies like PredPol, Risk Terrain Modeling (RTM), and HunchLab. This chapter discusses these leading predictive policing technologies as illustrative examples of how police can choose between prioritizing additional police presence, targeting environmental vulnerabilities, and/or establishing a community problem-solving approach as a different means of achieving crime reduction. -
Rebecca Hamilton and Molly K. Land
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Benjamin Leff
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Ezra Rosser
This is the introduction to Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019). The table of contents for the book, with links to the other chapters, can be found below: Introduction (this document) Ezra Rosser Part I: Welfare and Federalism Ch. 1 Federalism, Entitlement, and Punishment across the US Social Welfare State Wendy Bach Ch. 2 Laboratories of Suffering: Toward Democratic Welfare Governance Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed Ch. 3 The Difference in Being Poor in Red States versus Blue States Michele Gilman Part II: States, Federalism, and Antipoverty Efforts Ch. 4 States’ Rights and State Wrongs: Supplemental Nutritional Assistance Program Work Requirements in Rural America Rebecca H. Williams and Lisa R. Pruitt Ch. 5 State and Local Tax Takeaways Francine J. Lipman Ch. 6 Early Childhood Development and the Replication of Poverty Clare Huntington Ch. 7 States Diverting Funds from the Poor Daniel Hatcher Ch. 8 States’ Evolving Role in the Supplemental Nutritional Assistance Program David A. Super Part III: Advocacy Ch. 9 Federalism in Health Care Reform Nicole Huberfeld Ch. 10 Poverty Lawyering in the States Andrew Hammond Ch. 11 Conclusion: A Way Forward Peter Edelman
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Ezra Rosser
Native nation economies have long been dominated by public sector activities - government programs and services and tribal government-owned businesses - which do not generate the same long-term benefits for local communities that the private sector does. In this work, editors Robert Miller, Miriam Jorgensen, Daniel Stewart, and a roster of expert authors address the underdevelopment of the private sector on American Indian reservations, with the goal of sustaining and growing Native nation communities, so that Indian Country can thrive on its own terms. Chapter authors provide the language and arguments to make the case to tribal politicians, Native communities, and allies about the importance of private sector development and entrepreneurship in Indigenous economies. This book identifies and addresses key barriers to expanding the sector, provides policy guidance, and describes several successful business models - thus offering students, practitioners, and policymakers the information they need to make change.
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Susana SáCouto and Chanté Lasco
Introduction:
An estimated 20,000 girls and women and an unknown number of men and boys were victims of sexual violence during the war in the former Yugoslavia. This sexual violence took many forms and occurred in many different contexts: in victims ‘own homes when soldiers came to the door; in perpetrators’ homes, with victims sometimes being held for months as sexual slaves; and in detention centres and police stations in the context of interrogations and imprisonment. Since 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) has prosecuted some of these violations, along with other serious war crimes, crimes against humanity and acts of genocide. Yet only a fraction of these crimes – including the widespread sexual and gender-based violence (SGV) that occurred during the war – have been addressed by the ICTY. In light of the tribunal's mandate to complete its work within a limited timeframe, since 2003, the ICTY has focused on the prosecution ‘of the most senior leaders suspected of being most responsible for crimes within the ICTY's jurisdiction and transferr[ed] cases involving those who may not bear this level of responsibility to competent national jurisdictions‘, meaning the vast majority of serious crimes that occurred during the war remain to be addressed by domestic criminal justice systems in the former Yugoslavia, including in Bosnia and Herzegovina (BiH). Although an internationally supported special War Crimes Section was established over a decade ago within the national judicial system of the BiH to deal with such cases, a significant backlog remains, in particular with respect to cases involving SGV. This chapter explores the issues faced by justice system actors trying these cases. While some of the challenges relate to evidentiary difficulties, others stem from the withdrawal of international support of the War Crimes Section, rendering accountability efforts vulnerable to attack by domestic actors opposed to such efforts.
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Padideh Ala'i and David Gantz
This is Chapter 14 of the book entitled "Research Handbook on Intellectual Property and Climate Change", edited by Joshua D. Sarnoff and published in Spring 2016 by EE Elgar. The co-authors are Professors of Law specializing in International Trade Law.
The chapter aims to identify some of the major sources of tension between climate change-related measures proposed or implemented on the national level and the trading rules as they have been applied by the WTO dispute settlement bodies over the past nearly 20 years. The chapter first describes three categories of national approaches to climate change, and highlights the potential competitiveness concerns raised by each. It then discusses selected WTO provisions that are most likely to be used to evaluate WTO treaty-compliance of the three categories of national measures. These include an analysis of Articles of the General Agreement on Tariffs and Trade 1994 (GATT 1994), other Annex 1A Agreements addressing trade in goods, and a brief discussion of the General Agreement on Trade in Services (GATS). Finally, the chapter focuses on WTO and US trade remedy laws, as countries may utilize these provisions and mechanisms to address competitiveness issues that will inevitably come about, such as from subsidizing green technologies. The chapter ultimately discusses the importance of reaching an international agreement on reducing tariffs on international trade in environmentally friendly goods, and of reducing greenhouse emissions so that national actions are less likely to be unilateral measures.
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Jonathan Baker
In 2013, a federal district court found that Apple had orchestrated a cartel agreement involving it and five major book publishers three years earlier, when Apple opened the iBookstore in conjunction with the introduction of its iPad tablet computer. According to the court, Apple organized collective action by the publishers to take away ebook pricing authority from Amazon, an aggressive discounter, and to raise the retail prices of ebooks.
This chapter describes the case from an economic point of view. It examines the competing views of the government and Apple over the competitive impact of various provisions in the iBookstore’s distribution agreements with the publishers, evaluates possible economic reasons why competition may not have been harmed even if Apple’s conduct led to higher ebook prices, and considers what Apple could have done differently to enter without harming competition.
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Janie Chuang
In the decades following the globalization of the world economy, trafficking, forced labor and modern slavery have emerged as significant global problems. States negotiated the Palermo Protocol in 2000 under which they agreed to criminalize trafficking, primarily understood as an issue of serious organized crime. Sixteen years later, leading academics, activists and policy makers from international organizations come together in this edited volume and adopt an inter-disciplinary, multi-stakeholder approach to revisit trafficking through the lens of labor migration and extreme exploitation and, in the process, rethink the law and governance of trafficking. This volume considers many key factors, including the evolving international law on trafficking, the relationship between trafficking, slavery, indenture and domestic migration law and policy as well as newly emergent techniques of governance, including indicators, all with a view to furthering prospects for lasting economic justice in a globalized world.
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Jennifer C. Daskal
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Roger Fairfax
Policing the Black Man explores and critiques the many ways the criminal justice system impacts the lives of African American boys and men at every stage of the criminal process, from arrest through sentencing. Essays range from an explication of the historical roots of racism in the criminal justice system to an examination of modern-day police killings of unarmed black men. The contributors discuss and explain racial profiling, the power and discretion of police and prosecutors, the role of implicit bias, the racial impact of police and prosecutorial decisions, the disproportionate imprisonment of black men, the collateral consequences of mass incarceration, and the Supreme Court’s failure to provide meaningful remedies for the injustices in the criminal justice system. Policing the Black Man is an enlightening must-read for anyone interested in the critical issues of race and justice in America.
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Amanda Frost
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Jacqueline Lainez-Flanagan
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Benjamin Leff
Social enterprises are business enterprises that seek to pursue social goals. In order to do that, they need to be able to make binding commitments to a variety of stakeholders that they will indeed pursue such goals. At least since Henry Hansmann wrote his seminal works on nonprofit organizations in the early nineteen eighties, it has been widely understood that a significant value of the nonprofit organizational structure is the ability of the "nondistribution constraint" to serve as just such a commitment mechanism. In the case of for-profit social enterprises, where the nondistribution constraint does not apply, what mechanisms might we expect to be useful or necessary for the organization to make commitments to stakeholders?
This chapter applies some insights from Hansmann's "agency theory" to the for-profit social enterprise context. It observes that very different commitment mechanisms are useful depending on which stakeholders the organization wants to commit to. It also distinguishes between negative and positive commitments and why the distinction between the two is so important to the likely success of any commitments mechanism. -
Benjamin Leff
It is conventional to think of not-for-profit organizations as inhabiting a sector distinct from the private business sector on one side and the government sector on the other. One of the traditional goals of law in the nonprofit sector has been to distinguish entities in the nonprofit sector from those in the business sector--to define and police the boundary, both so governmental benefits can be provided to not-for-profit entities and so stakeholders can understand which organizations are bound by the nondistribution constraint. Therefore, when there are legal reforms that complicate or alter the boundary, these reforms should be evaluated not only with respect to whether they adequately protect the government's interest in providing benefits to worthy enterprises, but also whether the new reforms promote or detract from the sector's ability to communicate clearly with stakeholders.
This chapter (i) introduces the two primary ways that the law of nonprofit organizations attempts to regulate the boundary between the nonprofit and business sectors, (ii) roots commercial activity by nonprofits in the long history of fee-for-service nonprofit organizations that operate very much like for-profit businesses, and (iii) introduces and evaluates a number of new legal forms created for for-profit social enterprises.
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