What is an abstract idea? Is it merely an idea that cannot exist in concrete form? Or is there more to it? The term “abstract” is generally defined as “existing in thought or as an idea but not having a physical or concrete existence.” If this is the correct definition, then how can something physical be abstract? For almost five years now, the United States Patent and Trademark Office (USPTO), the courts, and even some of the most experienced patent practitioners have wrestled with this question. the and was a narrow issue before the Court, unexpectedly what most scholars might consider to be the most disruptive Supreme Court decision regarding subject-matter eligibility in the history of the U.S. patent laws.
Prompted by the National Conference of Commissioners on Uniform State Laws through its Uniform Parentage Acts, and by the American Law Institute through its Family Dissolution Principles and its Restatement Draft on Children and the Law, recently U.S. state legislators and judges have spurred a revolution in parentage laws. In particular, lawmakers have expanded parental custody opportunities and parental support obligations for those without biological (actual or presumed) or formal adoptive ties by recognizing ever-increasing forms of legal parentage by consent. Lawmakers have revolutionized parentage in some startling ways, as by deeming women to be parents under written paternity laws (including laws on marital paternity presumptions and on voluntary paternity acknowledgements). Unfortunately, U.S. state lawmakers have not always acted in ways compatible with constitutional (federal and state) constraints. This article is the first to review comprehensively the constitutional issues arising from the new state laws on parentage by consent, including residency/hold out parentage; spousal parentage; de facto parentage; voluntary acknowledgment parentage; and assisted reproduction parentage. These issues most often arise when forms of “presumed consent” are employed, meaning there is neither earlier actual nor apparent consent to justify impositions of shared (if not eliminated) child custody upon expecting or existing legal parents who then object, or to justify impositions of child support upon those then nonparents who then object. Presumed consent, unlike “common authority” in Fourth Amendment search cases, should not generally operate in parentage by consent settings. If it does operate, public awareness should be enhanced by education initiatives so that important Due Process interests are not lost without at least some prior notice of the revolutionary parentage laws sweeping across the United States.
In the twenty-first century, unions need to organize workplaces in traditionally anti-union battlegrounds to survive. But as the United Auto Workers' momentous defeats in recent years at foreign manufacturers located in the Deep South have shown, this mission becomes virtually impossible when anti-union forces — here, everything from business groups to private interests to conservative elected officials — may unite and campaign at will against a union's organizing efforts. This Article argues that the National Labor Relations Board should expand its laboratory conditions doctrine to encompass anti-union community pressure as coercive activity worthy of overturning NLRB election results. Otherwise, large-scale corporations like Nissan are free to continue recruiting regional and national anti-union forces to flout the untainted experiment that industrial democracy requires to measure employees' freedom of choice.
Since its popular reemergence in the 1980s, courts have not placed significant restrictions on the use of solitary confinement. One small exception has appeared. Lower courts have held that placing prisoners with preexisting severe mental illness in solitary confinement violates the Cruel and Unusual Punishment Clause. Can this relatively limited rule be expanded to abolish solitary confinement altogether? This Comment argues that it can. A large body of diverse research demonstrates that prolonged solitary confinement causes severe mental illness in most prisoners, regardless of their medical history. And because there is no principled basis — in law or in fact — for distinguishing between preexisting and confinement-induced mental illness, solitary confinement must end for all prisoners.
This article is about the future of Muslims in the American constitutional democracy. How this future will look like depends highly on how the dominant majority as well as those sitting in the political, executive and judicial branches of power will deal with the emergence of Islamophobia. This article explores the roots of American fear of Muslims and their faith and reflects on what Islamophobia and its reinforcement bring for the future of American democracy. This article contends that the American anxiety about Islam will create huge disparities and advance a political agenda tainted with animus toward Muslims. This insidious dis-invitation to Muslims to participate in the American democracy needs to be halted to cleanse the American political scene from anxiety, bigotry and exclusion.
Social media cannibalizes its users. Social media platforms like Twitter, Facebook, and Instagram are fraught with traps at every turn, which can cause even their most religious adherents to burn out or self destruct. These dangers run the gamut from the irritations of misinterpreted posts to combating those on a sole mission to goad co-users, to the career-ending, offensive statements that users regret for years-- or will seek penance for years from now. The perils of social media are something of a running joke among users who often comment that the best wisdom is to “never tweet” or who reply disapprovingly to a post with a curt “delete your account.” Notwithstanding the ironic title and the severe pitfalls associated with social media use, this essay stands to praise these platforms’ ability to democratize the law and encourages members of the legal community to harness its power to educate the public responsibly. It is the goal of this short symposium contribution to square the ideals associated with legal practice and social media use. The essay will then offer some basic norms for legal professionals’ consideration while using social media to communicate to the public.
I. TEMPORARY INVESTIGATORY STOPS BEFORE TERRY .................................... 514 II. TERRY V. OHIO .............................................................................................. 517 A. The Terry Stop ..................................................................................... 520 B. Sibron v. New York Inconsistency ....................................................... 522 III. STRETCHING TERRY ..................................................................................... 523 A. Mendenhall and Royer ........................................................................ 523 B. INS v. Delgado ..................................................................................... 525 C. Florida v. Bostick ................................................................................. 526 IV. ILLINOIS V. WARDLOW ................................................................................ 528 A. High Crime Area .................................................................................. 528 B. Wardlow’s “High Crime Area,” and Police Discretion ......................... 532 V. NEW YORK CITY POLICE AND STOP-AND-FRISK............................................ 536 VI. AN ATTEMPT TO END RACIAL PROFILING ................................................... 539 VII. CONCLUSION .............................................................................................. 541
In this article celebrating the 50th anniversary of Terry v. Ohio, I argue that the criminal justice system is not an integrated system, but a fragmented one. One way it is fragmented, the Terry Court recognizes, is between crime control and public-order policing. Crime control has high-judicial visibility, allowing illegally-gained evidence to be excluded at trial. Public-order policing has low-judicial visibility. What happens on the street stays on the street, and rarely makes it to the courtroom. Read this way, Terry tells lawyers something uncomfortable. In a fragmented criminal justice system, there are some forms of police misconduct that the Court, and the exclusionary rule, just cannot remedy. Doing social activism through law is not enough. The Fourth Amendment lacks the resources to protect us from race-based policing. For the most part, the race-based criticism of Terry focuses, understandably enough, on the Court’s failure to engage with a race-conscious approach to the problems of race-based policing. Many of these critiques are urgent and important. However, in an attempt to place the blame for subsequent doctrinal novelties at the feet of the Terry Court, they generally embargo and explain away the Court’s explicit discussion of race-based policing and the Court’s references—express and implied—to the recently published Challenge of Crime in a Free Society. To reclaim a sense of Terry’s powerful engagement with race and reasonableness, I want to separate out Terry from its progeny and suggest that the Court was engaged in a conversation with the 1967 President’s Commission Report, The Challenge of Crime in a Free Society. I begin by discussing the President’s Commission’s radical critique of race-based policing and its even more radical recommendations for reform: recommendations that have largely been ignored and unfulfilled. I then explain how Terry’s approach to stop and frisk responds to race-based harassment by, not only adopting, but rendering more stringent, the President Commission’s recommendations on the use of stops and frisks. I suggest that Terry’s precise, rule-like approach to stop-and-frisk policing precludes its use as a device for low-level racial harassment and limits its use to investigating crimes of violence. This precision enabled the Court to tackle head-on a problem identified by both the Terry Court and the Report: the central place occupied by physical displays of police authority—often called “command presence”—to dominate racial minorities. I conclude by suggesting that critics, frustrated at the way the reasonable suspicion standard has been co-opted by a pro-police agenda, miss the Court’s central regulatory claims. Three claims are particularly important: (1) that there is not one criminal justice system, but many overlapping systems; (2) that the police conduct is highly visible in minority communities; but (3) that same conduct is low visibility in the courts that are supposed to regulate their behavior. Constitutional litigation is thus a limited resource against the sort of low-visibility policing that remains separate from the process of criminal prosecution and so incapable of judicial oversight.
There is an inherent conflict of interest in the American justice system aris-ing out of the intimate police-prosecutor relationship that has evolved in the United States over the last forty years. While police and prosecutors formerly operated as independent units, a concerted effort to join forces has resulted in close working relationships. These relationships have increasingly led law enforcement to employ perjury and unethical tactics to obtain unjust convictions against criminal defendants. In addition, they have allowed law enforcement to commit atrocious acts without fear of punishment. And, because police and prosecutors enjoy immunity under 42 U.S.C. § 1983 for almost any conduct, victims and their families are often left without recourse in either a criminal or civil forum — even when law enforcement officials commit criminal, malicious, or bad faith acts against them. But there is hope yet. This Comment proposes a larger degree of separation between officers and prosecutors. It also proposes that law enforcement officials be held accountable for purposefully failing t o report each other’s misconduct and criminal acts. Finally, it suggests that immunity doctrines should be limited to exclude malicious and bad faith acts. These modifica-tions will result in a more trustworthy and predictable criminal justice system — one that stifles the insidious behavior that leads to unjust criminal convictions, and provides § 1983 plaintiffs a better chance at recovery when law enforcement officials violate their rights.
The sole direction in the Wilderness Act of 1964 concerning commercial livestock grazing in wilderness is forty words long: “Within wilderness areas in the national forests designated by this Act...the grazing of livestock, where established prior to September 3, 1964, shall be permitted to continue subject to such reasonable regulations as are deemed necessary by the Secretary of Agriculture.” We discuss just what these words mean in the context of the law and the subsequent so-called Congressional Grazing Guidelines, and examine recent agency misinterpretations of this direction.
This Short Essay was written in response to an invitation by the Idaho Law Review to participate in its Symposium entitled, “Terry v. Ohio at 50: Considering the Past, Present, and Future of Stop-and-Frisk.” The Essay explores the confusion surrounding an officer’s ability under Terry to conduct a protective frisk of a lawfully armed civilian solely because that individual possesses a firearm. Under well-established Fourth Amendment jurisprudence, an officer may lawfully stop an individual if she reasonably suspects that individual of engaging in criminal activity. However, the officer may only initiate a frisk if she separately develops reasonable suspicion that the individual is armed and dangerous. Courts disagree on whether this second prong of the Terry analysis is conjunctive or, alternatively, whether an armed individual is per se dangerous and subject to a protective frisk. This Essay suggests a thought experiment: rather than employing an overly-formalistic reading of the Terry test, what if courts employed traditional tort law risk-assessment principles in determining whether an officer is justified in conducting a protective frisk? With reference to the iconic Hand Formula, this Essay suggests that, in most situations, the probability of harm to officers and the nearby public from an armed individual (P), combined with the magnitude of that potential harm (L), justifies the “precaution” of a protective frisk (B). The Essay concludes by intentionally not providing a definitive answer to this thought experiment, but merely by making preliminary observations designed to provoke further thought and discussion.
Canons of construction serve as a set of ground rules that judges rely on in interpreting statutes. Substantive canons of construction, in particular, are principles and presumptions that point judges in a specific policy direction in order to serve underlying public values. Many of these substantive canons share a common justification: judges have developed them to mitigate threats of irreversible harm to vulnerable and underrepresented interests and to incentivize clarity in the legislative process. This Article argues that environmental interests—the interests of present and future generations in maintaining ecological conditions that support life—merit similar protection. Therefore, judges should employ an environmental canon of construction: whenever possible, statutes must be read in a manner that best promotes ecological integrity and sustainability for present and future generations. The Article examines several common substantive canons and concludes that environmental interests and values justify a similar canon. An environmental canon of construction also finds support in the National Environmental Policy Act (NEPA), which provides that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with” the environmental policies listed in the statute. Recognizing a substantive environmental canon would place ecological concerns on the same level, legally and rhetorically, with other fundamental rights and concerns—granting legitimacy to the consideration of environmental impacts in judicial reasoning and bringing our legal system in line with scientific understanding of our role and responsibility in an ecologically interdependent world.
This article discusses the regulation of hydrocarbon emissions, including the emissions of methane, a potent greenhouse gas, from the oil and gas industry in the western United States. It covers the regulations of the Environmental Protection Agency, the Bureau of Land Management, and other Federal agencies. It also discusses the state laws of the major oil and gas producing western states: California, Colorado, New Mexico, Utah, and Wyoming. It covers operations on public, state, and private lands, but it does not cover oil and gas operations on Indian lands that are the subject of the author’s previous article.
The development of driving support and cruise assist systems in the automotive industry has been astonishing, accelerating dramatically in the last ten years: since the first DARPA Urban Challenge field tests have multiplied in the US – in California alone, there are currently 39 companies testing self-driving cars – and the once remote prospect of “driverless” vehicles becoming commercially available (coming to market) (in the next future) might not be so far from reality. A broad range of scientific studies suggests the implementation of fully automated driving systems may come soon. Highly Automated Vehicles (HAVs) are likely to profoundly transform our social habits, and to revolutionize our way of interacting with the surrounding environment; in addition, legal scholars have already outlined how automated vehicles create a multi-level challenge in terms of regulation, capable of impacting on different areas of the law. One of the areas where research is much needed is tort liability: in addressing the regulation of accidents caused by automated cars, jurists must assess whether tort liability rules – as they are currently shaped – are suited to govern the “car minus driver” complexity, while simultaneously holding on to their theoretical basis. Whether the current framework proves itself to be inadequate and irreparably “out of tune” with the new circulation dynamics, the only alternative will be to amend or renew it. In light of these considerations, our aim is to present a hypothetical system for liability arising from road accidents caused by driverless cars. This model should be interpreted as a theoretical guideline, which must be adapted and declined in accordance with the specific attributes entailed within each legal system. Consistently with this premise, the article is outlined as such: in Part I we set out (and argue in favour of) some assumptions on which analysis rests. The main postulates that we embrace are that: a) we will ultimately reach a degree of technology that is capable of entirely substituting the human driver on the road; b) a fully automated driving system will be able to manage the “behaviour” of the vehicle safer than its “organic” counterparty; and c) the most promising strategy in addressing the HAVs regulation is to focus primarily on investigating the risks involved in the circulation of “totally” automated cars – where the human driver has no role – rather than addressing already existent (or forthcoming) intermediate support technologies. In Part II, we present the main options available to lawmakers in allocating liability for road accidents caused by HAVs. Traditionally, four leading “players” have been traditionally considered – in the academic debate as well as in the regulatory proposals enacted by governmental and independent bodies – “potentially responsible” in case of road accidents involving HAVs: the driver of the car; its owner; the government (or, widely speaking, the general public) and the manufacturer of the vehicle: after analysing each potential figure, we conclude that the manufacturer is the most appropriate figure to be held liable in the case of road accident involving driverless cars. Part III of the article investigates, on the basis of the background established in Part II, the most widely preferred solutions proposed to regulate a hypothetical liability system for manufacturers: on one hand, we consider the role that rules on product liability can play, devoting our attention both to the EU and to the US regulation; on the other hand, we evaluate the impact of different strict liability options. In particular, as for the latter, we then proceed to a specific investigation of the hypothetical system proposed by Kenneth Abraham and Robert Rabin in their article “Automated Vehicles And Manufacturer Responsibility For Accidents: A New Legal Regime For A New Era” (2017). In Part IV, after “laying down the ground” through the analysis of previous solutions for regulating tort liability in accidents caused by Highly Automated Vehicles, and after underlining how none of them seems entirely satisfactory, we present our proposal for allocating risks in the driverless car world. We will illustrate, in particular, how a “two-steps” system – operating through a negligence assessment and a reward fund – represents an optimal solution to mediate amongst the conflicting needs in the regulation of driverless vehicles. In Part V, finally, we draw some Conclusions on the basis of the various aspects addressed in our analysis, and present some alternatives we considered (and excluded) in developing our system.
