Supra Note Research Articles

Have Arguments For and Against Medical Aid in Dying Stood the Test of Time?

Have Arguments For and Against Medical Aid in Dying Stood the Test of Time?

A BETTER WAY

A BETTER WAY

The Toronto Municipal Election: Judicial Failure to Protect the Structure of the Canadian Constitution

In Toronto (City) v Ontario (AG),1 a recent decision on the legality of legislative interference in the Toronto 2018 municipal election, the Ontario Court of Appeal makes an alarming attempt to rewrite the Canadian Constitution. The subject of this revision is the legitimate role of unwritten principles in constitutional interpretation. Robin Elliot maintains, in a leading scholarly treatment of the subject, that unwritten principles can inform constitutional interpretation in two main ways: first, they can provide an independent basis on which to overrule impugned legislation; second, they can assist in interpreting constitutional text.2 Elliot qualifies the former usage by limiting it to those principles that “can fairly be said to arise by necessary implication from provisions of the text of the Constitution … since they have the same legal status as the text.”3 The Court of Appeal, however, states that unwritten principles cannot be used as a stand-alone basis on which to overrule legislation.4
 In this article, I draw on numerous Supreme Court of Canada decisions to argue that the Ontario Court of Appeal’s view of the Constitution is, with respect, fundamentally flawed. Unwritten principles inform the structure of a democratic constitution and thereby provide legislation with its claim to legitimacy. Legislation that violates foundational unwritten principles is, of necessity, subject to judicial challenge. I also argue that the Court of Appeal’s doctrinally unsustainable approach to unwritten principles led to a flawed ruling on the legality of Ontario’s interference in the 2018 Toronto election. In Reference re Senate Reform, the Supreme Court of Canada unanimously states that “constitutional interpretation must be informed by the foundational principles of the Constitution.”5 The Court of Appeal failed to provide any detailed consideration of the democratic principle, and thereby failed to recognize the constitutional imperative that protects the integrity of the electoral process.
 *PhD in Constitutional and Administrative Law, Queen’s University. Principal of Public Law Solutions, a research firm in Toronto.[1] 2019 ONCA 732 [Toronto v Ontario (CA 2019)].[2] “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can Bar Rev 67 at 83-86, 141-42, and generally 86-98.[3] Ibid at 95. See also 83-84.0[4] Toronto v Ontario (CA 2019), supra note 1 at para 89.[5] 2014 SCC 32 at para 25 [Senate Reference].

Terrorism and Insurance Markets: A Role for the Government as Insurer?

Since September 11, 2001, insurance markets have been struggling to adjust to new information about the magnitude of risks posed by terrorism, and to the loss of tens of billions of dollars in reserves because of claims relating to the September 11 attacks. Insurance coverage for terror-related losses has become more expensive and for some risks difficult or impossible to obtain. As a result, various interest groups have called for the Federal government to provide coverage for terrorism losses, and proposals for increased government involvement are moving forward in Washington. We question the wisdom of any further measures of this sort. They are likely to come too late to address short-term market disruption, and in the long run may well supplant or distort desirable market responses to the new information about terrorism risk. The terrorist attacks on the United States in September 2001 created chaos in the insurance industry. Insurers immediately refused to sell more than minimal coverage to any airline for ground damage, placing airlines in difficulty with both creditors and regulators. Property and casualty reinsurers, who will bear the brunt of the $50 billion or more in claims resulting from the destruction of the World Trade Center, announced that they would no longer sell coverage for acts of terrorism. The insurance industry responded by announcing that acts of terrorism would be excluded from coverage under commercial policies in future renewals, a state of affairs that might place the owners of some commercial properties in breach of loan covenants and may leave commercial lenders hesitant to make new loans. The Bush administration quickly obtained temporary authority for the Federal Aviation Administration to provide insurance coverage to airlines for ground damage, a Northwestern University, Kellogg School of Business. University of Chicago Law School. “Airlines Plan to Create Insurance Company, Coverage,” USA Today, March 7, 2002, p. 2B. “Insurers See Terror Coverage Delays Unless U.S. Helps,” Washington Post, January 18,2002, p. E3. “Insurance Chief Warns U.S. Business of Cover Loss: Terror Attacks Widespread Disruption and Breaches of Loan Covenants Predicted Unless Legislation Passed,” Financial Times (London), December 6, 2001, The Americas: p. 12. “Airlines Plan to Create Insurance Company, Coverage,” supra note 1.

CONTEXT MATTERS: LUCK AND THE PARADOX OF SKILL

CONTEXT MATTERS: LUCK AND THE PARADOX OF SKILL

Religion as a Means of Maintaining Legitimacy in the Canadian State


 
 
 “[I]f a system of rules is to be imposed by force on any, there must be a sufficient number who accept it voluntarily. Without their voluntary co-operation, thus creating authority, the coercive power of law and government cannot be established” 1 – H.L.A. Hart
 “For a domination...justification of its legitimacy is much more than a matter of a theoretical or philosophical speculation; it rather constitutes the basis of very real differences in the empirical structure of domination. The reason for this fact lies in the generally observable need of any power, or even of any advantage of life, to justify itself.”2 – Max Weber
 I. Introduction
 In the above quotes, Hart and Weber both point to a requisite element that all nation states share in their quest to maintain a stable order. To appear legitimate, a state must represent itself in a way that is palatable to its citizens. Put differently, a state must convince its populace that the power it wields is rightly wielded. If the majority of its citizens do not accept the legitimacy of the state, then the very stability of the state is undermined; generally, it is only a matter of time before this state is overthrown or reconfigured in a fashion agreeable to the citizenry.3 This issue of legitimacy forms the basis of this study. With a focus on Canada, the following will consider a means by which legitimate status is presented and maintained by the state.
 1 H.L.A Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 201 [Hart]. 2 Max Weber, On Law in Economy and Society. Trans. Edward Shils (Massachusetts: Harvard University Press, 1969) at 335 [Weber]. It is important to note that Weber devotes a significant amount of discussion to the definition of ‘domination’. Broadly speaking, Weber states, “in our terminology domination shall be identical with authoritarian power of command. To be more specific, domination will thus mean the situation in which: The manifested will (command) of the ruler or rulers is meant to influence the conduct of one or more others (the ruled) and actually does influence it in such a way that their conduct to a socially relevant degree occurs as if the ruled had made the content of the command the maxim of their conduct for its very own sake” (Weber at 328). 3 Hart, supra note 1 at 201.
 
 

Farmers’ Market Fraud: California’s Approach and What It Means for Farmers’ Market Regulation

The United States Department of Agriculture (“USDA”) defines a farmers’ market as “a multi-stall market at which farmer-producers sell agricultural products directly to the general public at a central or fixed location, particularly fresh fruit and vegetables (but also meat products, dairy products, and/or grains).”[1] The recent resurgence in the popularity of farmers’ markets represents a return to days past where local producers were the predominant source for fresh produce and agricultural goods. With the most farmers’ markets of any state,[2] California has a large interest in the success of its farmers’ markets. In furtherance of this interest, California endeavors to protect its farmers’ markets from fraud.[3] Prior to 2015, California had one of the strictest farmers’ market regulatory programs in the United States.[4] Even so, the California legislature decided that more needed to be done in order to prevent farmers’ market fraud and on September 26, 2014 enacted Assembly Bill 1871 (“A.B. 1871”).[5] The primary function of this Note is to analyze A.B. 1871 and develop an understanding of the California model for regulation of farmers’ markets. This model will be compared to the approaches taken by New York and Michigan (states with the second and third most farmers’ markets)[6] to develop a greater understanding of the various approaches to farmers’ market regulation. The goal of this Note is to serve as a policy guide for farmers’ market regulation. Following this introduction, this Note will proceed in six parts. Part I will discuss the recent history of farmers’ markets with a particular emphasis on the economic and social impact that farmers’ markets have on the communities in which they operate. Part II addresses the nature of farmers’ market fraud and some general ways that states and farmers’ market vendors and operators combat fraud. Part III will provide a comprehensive analysis of A.B. 1871 and its components. Part IV will provide a comparative analysis of the regulatory approaches taken by New York and Michigan. Part V outlines four general factors for states to consider before enacting statewide regulations for farmers’ markets. Finally, Part VI concludes with guidance on state policy regarding regulation of farmers’ markets.[1] What is a Farmers’ Market?, USDA Food & Nutrition Serv., (May 27, 2015), http://www.fns.usda.gov/ebt/what-farmers-market. This Note will adhere to this definition of “farmers’ market,” and any reference to “farmers’ market,” unless specifically stated otherwise, is intended to reference this definition. [2] National Farmers Market Directory, USDA Agric. Mktg. Serv., http://search.ams.usda.gov/farmersmarkets/ (last visited February 1, 2015). As of January 2015, California had over 760 farmers’ markets registered with the USDA. The USDA’s Agricultural Marketing Service (“AMS”) collects farmers’ market information and numbers through voluntarily submitted data. Id.[3] For the purposes of this Note, farmers’ market “fraud” indicates whenever a vendor sells something that the vendor did not produce, cultivate, or harvest himself/herself and/or a vendor misrepresents something as being from a local area. A discussion on the nature of farmers’ market fraud is contained infra, Part II.[4] Samuel R. Wiseman, Emerging Issues in Food Law: Fraud in the Market, 26 Regent U. L. Rev. 367, 386 (2013-2014) (discussing California’s previous system of farmers’ market regulation).[5] A.B. 1871, 2014 Cal. State Assemb., Reg. Sess. (Cal. 2014).[6] National Farmers Market Directory, supra note 2.

Hong Yen Chang, Lawyer and Symbol

Hong Yen Chang, Lawyer and Symbol Gabriel J. Chin * In March 2015, the California Supreme Court admitted Hong Yen Chang to the bar; in 1890, the Court denied him admission because of his race. 1 The Court acted on the petition of the UC Davis Asian Pacific American Law Students Asso- ciation, 2 with me as faculty advisor, represented by our pro bono counsel, Munger, Tolles & Olson. Hong Yen Chang was admitted to the New York State Bar in 1888, making him the first Chinese American lawyer in the United States. 3 He came to America in 1872 as a participant in the Chinese Educational Mission, a group of young men sent from China to receive Western educations. The goal was to create a cadre of professionals familiar with Western knowledge and practices. 4 Chang was twelve years old when he came to the United States. He graduated from Phillips Andover Academy in 1879, and then attended Yale College until 1881. 5 However, China cancelled the mission in 1881, and Chang was recalled to China. However, Chang returned to the United States on his own in 1882. 6 He attended Columbia Law School, where he was the only Asian student on campus, and he graduated in 1886. 7 At Commencement, the Dean of Columbia mentioned Chang specifically: I would like to add a word of special greeting to one of your number who has come here from a far distant land, pressed by an irresistible desire to acquire a Martin Luther King Jr. Professor of Law & Affiliated Faculty, Aoki Center for Critical Race & Nation Studies, UC Davis School of Law. This article is based on remarks made at the 2016 NAPABA Annual Meeting, at the Asian Bar Association of Sacramento, and at William “Mac” Taylor Inn of Court in Dallas. 1. In re Chang, 344 P.3d 288 (2015), overruling In re Chang, 24 P. 156 (1890). 2. The APALSA members participating in the project include: Christopher Alvarez ’13, Caspar Chan’13, Sue Chang ’15, JoAnne Jennings ’13, Jocelyn Koo ’15, Robert Marcelis ’13, Kian Magana ’14, Matthew Peng ’13, Sally Son ’13, Erin Tanimura, ’14, Steven Vong ’16, Tina Wang ’14, Tammy Weng ’13, and Elaine Won ’16. 3. Li Chen, Pioneers in the Fight for Inclusion of Chinese Students in American Legal Education and Legal Profession, 22 A sian A m . L.J. 5, 31–32 (2015). Most of the details of Hong Yen Chang’s life and career are drawn from this excellent work, as well as from L ani A y T ye F arkas , B ury M y B ones in A merica : T he S aga of a C hinese F amily in C alifornia , 1852–1966 (1998). 4. Origins of the Chinese Educational Mission, C hinese E duc . M ission C onnections , http://www. cemconnections.org/index.php?option=com_content&task=view&id=29&Itemid=34&limit=1&limit- start=0. 5. Chen, supra note 3, at 16. 6. Id. 7. Id. at 19. © 2016 Gabriel J. Chin. All rights reserved.

Method and Madness in Copyright Law

M ETHOD AND M ADNESS IN C OPYRIGHT L AW Dan L. Burk* I. I NTRODUCTION Copyright law is a source of nearly endless scholarly fascination because of the paradoxes, the absurdities, the contradictions in its doctrines. Lewis Carroll’s White Queen had nothing on copyright law. 1 Copyright asks us to accept far more than six impossible, almost nonsensical assertions as part of its standard doctrine. Copyright asks us to believe, for example, that creative works have an existence independent of their embodiment; 2 that corporations, rather than people, can author documents; 3 that computer code is a literary work, like poetry or novels; 4 that artists have a special propensity to bungle their business affairs. 5 The list seems nearly endless. Perhaps we do not have to believe all of copyright’s impossibilities before breakfast. But those of us who deal with copyright have to believe them, or at least pretend to accept them, all day long, day in and day out. As the Queen pointed out to Alice, believing impossible things takes practice. 6 With enough practice, the impossible becomes commonplace. When that happens, when we stop seeing the impossibility in the impossible, we seldom stop to question, or at least marvel, over the exceptional ideas that we have come to accept. And when this happens in copyright, we overlook or ignore some truly startling assumptions that are foundational to the copyright system. In this essay, I want to exercise the scholarly prerogative to examine one of those unexamined assumptions that lies at the center of a cluster of fundamental copyright doctrines. My subject is implicit in the way that copyright treats methods or processes, and we shall see that copyright has very special rules regarding methods or processes. Every student of copyright knows about these special rules, but the logic behind the rules, and the implications of that logic, have gone largely unexamined. I will look, hopefully with a fresh eye, at the assumptions about causality in copyright’s treatment of methods, systems, and processes. I shall do so through the lens of a relatively recent series of cases dealing with copyright in * © 2006 by Dan L. Burk, Oppenheimer, Wolff & Donnelly Professor of Law, University of Minnesota. This article was originally delivered as the 2006 Clyde Lecture at the University of Utah S.J. Quinney College of Law. I wish to thank Professors Hillary Greene and John Tehranian, Professor and former Dean Scott Matheson, and their colleagues for the opportunity to develop the ideas presented here. See L EWIS C ARROLL , Through the Looking-Glass and What Alice Found There, in T HE A NNOTATED A LICE 167, 251 (Martin Gardner ed., 1960). 17 U.S.C. §§ 101, 202 (2006). 17 U.S.C. § 201(b). H.R. R EP . N O . 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667. See Stewart v. Abend, 495 U.S. 207, 207 (1990). See C ARROLL , supra note 1, at 251.

All Together Now: Using Principles of Group Dynamics to Train Better Jurors

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies 1 suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same 2 time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups, to various cognitive biases and errors. Moreover, jurors are often at a 3 disadvantage because most of them have never served on a jury and many of them have never worked with a group to reach a decision about a complex problem. Compounding these issues, jurors are not typically given instructions 4 or training on working in a group or on effective decisionmaking strategies. Although there is extensive literature examining juries and jury deliberations, this Article is the first to consider all of the major scientific studies that examine training in group decisionmaking and apply them to jury decisionmaking. Many studies have examined group processes and group deliberations in the fields of social psychology, organizational psychology, business administration, advertising, and a variety of related areas. Moreover, countless studies examine 5 group decisionmaking and recommend the use of training to improve group performance. Yet almost none of this interdisciplinary knowledge of group 6 * Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Thank you to Linda Berger, Linda Edwards, Michael Higdon, Elizabeth Pollman, and Kathy Stanchi for their helpful comments and suggestions. Thanks also to the editors of the Indiana Law Review for their valuable editorial suggestions and to Chad Schatzle for his excellent research assistance. 1. David D. Henningsen et al., Role of Social Loafing in Predeliberation Decision Making, 4 GROUP DYNAMICS: THEORY, RES., & PRACTICE 168 (2000). 2. NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES 74 (2007). 3. Norbert L. Kerr et al., Bias in Judgment: Comparing Individuals and Groups, 103 PSYCHOL. REV. 687, 713 (1996). 4. Henningsen et al., supra note 1. 5. J. Richard Hackman, Learning More By Crossing Levels: Evidence From Airplanes, Hospitals, and Orchestras, 24 J. ORG. BEHAV. 905 (2003); Steven A. Murphy & Michael L. McIntyre, Board of Director Performance: A Group Dynamics Perspective, 7 CORP. GOVERNANCE 209, 213 (2007); Gwen M. Wittenbaum & Richard L. Moreland, Small-Group Research in Social Psychology: Topics and Trends over Time, 2 SOC. & PERSONALITY PSYCHOL. COMPASS 187, 187 (2008). 6. Herman Aguinis & Kurt Kraiger, Benefits of Training and Development for Individuals 416 INDIANA LAW REVIEW [Vol. 48:415 dynamics and the efficacy of training on group performance has been applied to one of the most fundamental group decisionmaking bodies—the jury. We can use this literature to create effective juror training procedures and give jurors strategies to more effectively deliberate and reach better group decisions. “Gettin’ good players is easy. Gettin’ ‘em to play together is the hard part.” –Casey Stengel

Restoring Americans' Privacy in Electronic Commerce Symposium - The Legal and Policy Framework for Global Electronic Commerce: A Progress Report

Restoring Americans' Privacy in Electronic Commerce Symposium - The Legal and Policy Framework for Global Electronic Commerce: A Progress Report

Concluding Remarks by Rosalyn Higgins

Bruno Simma mentioned briefly standard of proof in the ICJ. The Court has not been very good in facing that issue. The Court has set its face against setting a standard of proof of facts which it will determine in any given case. This is because many of the civil-law judges believe that there can be nothing objective about this matter, and that it is simply a question of the intime conviction du juge. One has only to look at the Oil Platforms case to see, in my opinion, that the lack of any objective standard means that different judges can look at the very same set of facts and reach diametrically opposite conclusions as to what the evidence shows. What the Court does do, and I think does very well, is to explain in particular cases what evidence it has found unreliable, and why, and what evidence--including findings of fact by others--it deems very weighty. There is much of interest in Court practice on that. I think you have heard some first-rate presentations by some very knowledgeable people on a wide range of issues, and we all hope you have enjoyed this session. (1) Eritrea-Ethiopia Claims Commission, Rules of Procedure, art. 14(1) (Oct. 200l), available at http://www.pca cpa.org. (2) Id. art. 14(4). (3) Central Front, Ethiopia's Claim 2, Partial Award, para. 112 (Apr. 28, 2004), 43 I.L.M. 1275 (2004). (4) Prisoners of War, Eritrea's Claim No. 17, Partial Award, para. 44 (July 1, 2003), 42 I.L.M. 1083 (2003). (5) Id. para 46; see Ethiopia's Central Front Claim, supra note 3, para. 20. (6) See, e.g., Prisoners of War, Ethiopia's Claim No. 4, Partial Award, para. 38 (July 1, 2003), 42 I.L.M. 1056 (2003). (7) Id. (8) Algiers Agreement, Eth.-Eri., art. 5(12), Dec. 12, 2000, 2138 U.N.T.S. 94, 40 I.L.M. 260 (2001). The Commission's work ultimately lasted about eight years. (9) Ethiopia's POW Claim, supra note 6, para 54; Western Front, Aerial Bombardment and Related Claims, Eritrea's Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, Partial Award, para. 91 (Dec. 19, 2005), 45 I.L.M. 396 (2006). (10) Ethiopia's POW Claim, supra note 6, para. 54. (11) Id. (12) Ethiopia's Central Front Claim, supra note 3, para. 37; Civilians Claims, Ethiopia's Claim 5, Partial Award, para. 85 (Dec. 17, 2004), 40 I.L.M. 430 (2005). (13) Id. (14) Rules of Procedure, supra note 1, art. 14(2). (15) Ethiopia's POW Claim, supra note 6, para. 44. (16) Eritrea's POW Claim, supra note 4, para. …

DEVELOPING A COMMON LAW OF HYDRAULIC FRACTURING

* Professor, Washburn University School of Law Topeka, Kansas. 1. NORMAN J. HYNE, DICTIONARY OF PETROLEUM EXPLORATION, DRILLING & PRODUCTION 249 (1991). 2. MARTIN S. RAYMOND & WILLIAM L. LEFFLER, OIL AND GAS PRODUCTION IN NONTECHNICAL LANGUAGE 218 (2006). 3. Id. at 217–18. 4. William S. Lytle, Results of Stimulating the Oil and Gas Sands by Hydraulic Fracturing in Pennsylvania, 7 INTERSTATE OIL COMPACT COMMISSION COMMITTEE BULL. 17 (June 1965). 5. Hydraulic fracturing techniques were being employed in Kansas oil fields as early as 1948. CRAIG MINER, DISCOVERY! CYCLES OF CHANGE IN THE KANSAS OIL & GAS INDUSTRY 1860–1987, 218 (1987). 6. Id. 7. Lytle, supra note 4, at 17.

United States Securities Regulation and Foreign Private Issuers: Lessons from the Sarbanes-Oxley Act

United States Securities Regulation and Foreign Private Issuers: Lessons from the Sarbanes-Oxley Act

The Fujimori Judgment: A President's Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus

The Fujimori Judgment: A President's Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus

Encryption Source Code and the First Amendment

The First Amendment does not cover all speech acts. It instead extends constitutional protection to media for the communication of ideas, which are forms of social interaction that realize First Amendment values. The constitutional question, therefore, is whether particular uses of source code are embedded within such media. It is insufficient to distinguish, as do current federal regulations, the publication of source code in electronic form from its publication in written form. Instead it is necessary to focus on the social contexts within which source code is used, whether in electronic or written form. From constitutional perspective, it is one thing to use source code to convey ideas to an audience, and it is quite another to use source code to run computer. The article suggests how each of these situations might be constitutionally analyzed. Source code is high level computer language typically used by programmers to compose computer software.1 Federal regulations prohibit the unlicensed of computer software, including source designed 2 to encrypt messages. To post source code to the Internet is in most circumstances to export it under the terms of the regulations.3 Federal regulations do not seek to prohibit the unlicensed of a printed book or other printed material setting forth source code, but © 2000 Robert Post. t Alexander F. and May T. Morrison Professor of Law, Boalt Hall School of Law, University of California, Berkeley. 1. See Bernstein v. United States Dep't of Justice, 176 F.3d 1132, 1140 (9th Cir. 1999), withdrawn pending en banc reh'g, 192 F.3d 1308 (9th Cir. 1999), appeal dismissied without prejudice and remanded, No. 97-16686 (9th Cir. April 11, 2000) [hereinafter Bernstein IV]. 2. See Bernstein v. United States Dep't of State, 974 F. Supp. 1288, 1294-96 (N.D. Cal. 1997) [hereinafter Bernstein 1]. To encrypt message is to make it incomprehensible to someone who does not have the code. Encryption code applies to messages that are sent in digital form. See ANDREW L. SHAPIRO, THE CONTROL REVOLUTION 73 (1999) (Encryption tools... are the locks and keys of the digital age.). 3. See Junger v. Daley, 8 F. Supp. 2d 708, 713 (N.D. Ohio 1998), rev'd and remanded, No. 98-4045, 2000 U.S. App. LEXIS 6161 (6th Cir. April 4, 2000) (Almost any posting of software on the Internet is an export.). BERKELEY TECHNOLOGY LAW JOURNAL they do extend to encryption source code in electronic form or media (e.g., computer diskette or CD ROM).' 4 Daniel J. Bernstein, professor of mathematics, statistics, and computer science, composed an program called Snuffle in source code.5 He wished to present his work on Snuffle within the academic and scientific communities. ' 6 Bernstein brought suit challenging the federal regulations as prior restraint on his ability to speak. The Bernstein case raises the fascinating and controversial question of whether computer programs written in source code can be form of expression for purposes of the First Amendment. Lee Tien's rich and complex article substantially contributes to our understanding of this question. 7 Tien's distinction between and protection, for example, is exactly right.8 To conclude that the First Amendment covers conduct, like the of source is to assert that the constitutionality of the conduct's regulation must be determined by reference to First Amendment doctrine and analysis. To conclude that the conduct is protected by the First Amendment, on the other hand, is to assert that the regulation of the conduct is unconstitutional. The question of First Amendment coverage goes to the threshold issue of the kind of analysis that should be brought to bear in evaluating the constitutionality of state regulations; the question of First Amendment protection goes to the ultimate judgments that we ought to reach in particular case. The threshold question posed by the Bernstein case is whether federal regulation of source code is to be assessed under the doctrines of the First Amendment. This is question of coverage, and it shall be my focus in this brief comment. Bernstein answered this question in the affirmative, holding that the constitutionality of the federal regulations was to be determined by First Amendment principles. A closel ' analogous case, however, has seemingly reached the contrary conclusion. 4. 15 C.F.R. § 734.3 (1999), note to paras. (B)(2) and (B)(3). 5. See Bernstein IV, 176 F.3d at 1135-36. 6. Id. at 1136. 7. Lee Tien, Publishing Software as Speech Act, 15 BERKELEY TECH. L.J. 629 (2000). 8. See Tien, supra note 7, at n.10. Tien draws this distinction from Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REv.

Migrant Domestic Workers in Egypt: A Case Study of the Economic Family in Global Context

Migrant Domestic Workers in Egypt: A Case Study of the Economic Family in Global Context

Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward a Reformation of Drug and Prostitution Regulations

This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means. (See, e.g., Mario J. Rizzo, The Problem of Moral Dirigisme: A New Argument Against Moralistic Legislation, 1 N.Y.U. J.L. & LIBERTY 789, 791 (2005). Moral dirigisme (John Stuart Mill, On Liberty 13 (Stefan Collini ed., 1989) (1859) is an economic term, which describes an economic structure for which the government provides strong direction. (See generally Elie Cohen, Le Colbertisme “High Tech”: Economie Des Telecom et du Grand Projet (1992); David Baker, The Political Economy of Fascism: Myth or Reality, or Myth and Reality?, 11 NEW POL. ECON., 157, 227-50 (2006). The term dirigisme derives from the French word diriger, which means to guide. (see WordReference.com, French to English Dictionary, (last visited Sept. 3, 2009). Moral dirigisme, by analogy, refers to the underlying philosophy which believes that moral behaviors can be changed through formal regulation. It is referred to, by Mario J. Rizzo, as “the attempt or tendency to control certain kinds of moral behavior by formal legal means.” (See Rizzo, supra note 2, at 791). Rizzo views acts by the state to prohibit or authorize certain conduct of individuals in an attempt to force them to act morally as flawed. Id. The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient. From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution. Consequently, the Article is divided as follows. Part II considers the inefficiency of the prohibition of drugs and prostitution. Part III discusses the underlying legal and philosophical theories that support prohibitory legislation and analyzes why prohibition of drugs and prostitution, although a popular default mechanism, is ineffective at eradicating these behaviors. Part III also identifies the Smithian-Humean view of justice as a basis to evaluate prohibition-based laws. Part IV explores the issues inherent in the prohibition of drugs and considers alternative approaches. Part V explores issues that result from the prohibition of prostitution and Part VI proposes an alternative framework to the prohibition of prostitution. Part VII explores ways of preventing pro-prostitution regulations from strengthening the sex trafficking market. Finally, Part VIII borrows from philosophical frameworks to formulate a standard that helps differentiate between effective and ineffective prohibition. Through an analysis of the unintended effects of prohibition, this Article provides a strong economic and legal argument for the legalization of prostitution and, at the very least, marginal changes in U.S. drug policy.

Lucas Leaves Room for Categorical Defenses for Regulations of Wetlands that Are Critical to Water Resources and Essential for Public Drinking

2006 628 (Univ. of Florida Bureau of Economics 40th ed. 2006) (stating that in the year 1990, the population was 528,542 people). 2009] Categorical Defenses for Regulations of Wetlands 253 Florida. In 2000, Miami-Dade was the most populous county in Florida with a population of over two million. With this increase in people came an increase in the demand for water and development, which further destroyed wetlands. Although population increases are a main reason for the destruction of wetlands, it is not the only reason why many wetlands that once existed do not exist today. Many early federal wetlands regulations also contributed to the loss of wetlands. D. Early Wetland Regulations The Swamp and Overflow Land Acts of 1849, 1850, and 1860 promoted wetland drainage. Millions of acres of wetlands were transferred from the federal government to the states to reclaim swamplands for agriculture and development. In 1905, 82 million acres of wetlands had been claimed by fifteen states. Following these Acts, nearly half of these wetlands were destroyed by drainage projects. The Swamp and Overflow Land Acts were not the only Acts contributing to the loss of wetlands. The Flood Control Acts, enacted by Congress between the years 1928 and 1965,resulted in the Army Corps of Engineers spending billions of dollars for the construction of levees, reservoirs, and dams for the purpose of flood control. The Flood Control Act of 1944 was enacted after severe flooding devastated the lower Missouri River basin and authorized the Army Corps of Engineers to build major projects for draining agricultural 88 John J. Fumero, Environmental Law: 1994 Survey of Florida Law—At A Crossroads In Natural Resource Protection And Management In Florida, 19 NOVA L. REV. 77, 78 (1994); see also EDWARD A. FERNALD & ELIZABETH D. PURDUM, ATLAS OF FLORIDA, 97 (Univ. Press of Florida 1992) (stating that Florida’s population almost doubled between the years of 1960 and 1980). 89 MORRIS & MORRIS, supra note 59, at 489. 90 See VILEISIS, supra note 7, at 7 (eleven million acres of wetlands were transformed into farms, suburbs, shopping centers, and airports between the 1950s and mid 1970s). 91 See TINER, supra note 39, at 110 (all of the Great Lakes received swampland). 92 Id. at 113 (northeastern states not included in the Acts because the original thirteen states owned most of the lands). 93 DUGAN, supra note 42, at 48. 94 See e.g., Flood Control Act of 1936, Pub. L. No. 74-738, 49 Stat. 1570 (codified as amended at 33 U.S.C. § 701(a) (2000)); Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (codified as amended at 33 U.S.C. § 701-1 (2000)); Flood Control Act of 1965, Pub. L. No. 89-298, 79 Stat. 1073 (1965). 95 See Flood Control Act of 1936, Pub. L. No. 74-738, 49 Stat. 1570 (codified as amended at 33 U.S.C. § 701(a) (2000)); Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (codified as amended at 33 U.S.C. § 701-1 (2000)); Flood Control Act of 1965, Pub. L. 89-298, 79 Stat. 1073

The State of Information Security Law: A Focus on the Key Legal Trends

Information security is rapidly emerging as one of the most critical legal issues facing companies today. Concerns regarding corporate governance, individual privacy, accountability for financial i...