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LAW (843 journals)            First | 1 2 3 4 5     

Showing 801 - 354 of 354 Journals sorted alphabetically
Varia Justicia     Open Access  
Veredas do Direito : Direito Ambiental e Desenvolvimento Sustentável     Open Access  
Veritas et Justitia     Open Access  
Verstek     Open Access  
Vertentes do Direito     Open Access  
Via Inveniendi Et Iudicandi     Open Access  
Vianna Sapiens     Open Access  
Victoria University of Wellington Law Review     Full-text available via subscription   (Followers: 10)
Villanova Environmental Law Journal     Open Access  
Villanova Law Review     Open Access   (Followers: 1)
Violence Against Women     Hybrid Journal   (Followers: 58)
VirtuaJus - Revista de Direito     Open Access  
Vniversitas     Open Access  
Vox Juris     Open Access  
Waikato Law Review: Taumauri     Full-text available via subscription   (Followers: 7)
Washington and Lee Journal of Energy, Climate, and the Environment     Open Access  
Washington and Lee Law Review     Open Access   (Followers: 2)
Washington Law Review     Free   (Followers: 2)
Washington University Global Studies Law Review     Open Access   (Followers: 7)
Washington University Journal of Law & Policy     Open Access  
Washington University Law Review     Open Access   (Followers: 2)
Wayne Law Review     Free  
Western Journal of Legal Studies     Open Access   (Followers: 1)
Western New England Law Review     Open Access   (Followers: 2)
William & Mary Environmental Law and Policy Review     Open Access   (Followers: 1)
William & Mary Journal of Women and the Law     Open Access   (Followers: 1)
William and Mary Law Review     Open Access   (Followers: 5)
Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice     Open Access  
Wirtschaftsrechtliche Blätter     Hybrid Journal   (Followers: 3)
Wroclaw Review of Law, Administration & Economics     Open Access  
Yale Journal of Law & the Humanities     Open Access   (Followers: 10)
Yale Journal of Law and Technology     Open Access   (Followers: 12)
Yale Journal on Regulation     Full-text available via subscription   (Followers: 19)
Yale Law Journal     Open Access   (Followers: 64)
Yearbook of European Law     Hybrid Journal   (Followers: 19)
Yearbook of International Disaster Law Online     Full-text available via subscription  
Yuridika     Open Access  
Zuzenbidea ikasten : Irakaskuntzarako aldizkaria     Open Access  
交大法學評論     Open Access  

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William and Mary Law Review
Number of Followers: 5  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0043-5589 - ISSN (Online) 2374-8524
Published by College of William and Mary Homepage  [5 journals]
  • Goss v. Lopez as a Vehicle to Examine Due Process Protection Issues with
           Alternative Schools

    • Authors: Ashton Tuck Scott
      Abstract: Circuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the Supreme Court's holding in Goss v. Lopez to ensure students receive due process protections before being involuntarily transferred to disciplinary alternative schools. Part IV addresses counterarguments and concludes that, by extending procedural protections to students facing involuntary alternative school transfers, courts can protect those most vulnerable from harmful disciplinary actions.This abstract has been adapted from the author's introduction.
      PubDate: Mon, 06 Jun 2022 12:11:31 PDT
       
  • Patent Prophylaxis: Expanding Access to PrEP Through 28 U.S.C. § 1498

    • Authors: Jonathan A. Bell
      Abstract: Part I of this Note details the discovery of Truvada for PrEP [pre-exposure prophylaxis] and the ongoing patent infringement litigation brought by HHS [United States Department of Health and Human Services], discusses the patents currently held by CDC and Gilead, and examines the shortcomings of infringement litigation as a means to expand access to the drug. Part II analyzes the mechanism of march-in rights under the Bayh-Dole Act and discusses two previously attempted applications for the HIV-management drug ritonavir to demonstrate why march-in rights will always fail to expand access to life-saving medications or reduce costs to consumers. Part III discusses the unique legal right conferred to the government under § 1498 and demonstrates why § 1498 is the correct course of action to expand access to PrEP. PrEP is a life-saving and life-altering medication. Patient access is an issue to address proactively--and prophylactically--through established intellectual property regimes.This abstract has been adapted from the author's introduction.
      PubDate: Mon, 06 Jun 2022 12:11:28 PDT
       
  • Congressional Rules of Interpretation

    • Authors: Jarrod Shobe
      Abstract: Many scholars argue that Congress should adopt federal rules of statutory interpretation to guide judicial interpretation. This Article uses a novel dataset to show that Congress has long used enacted rules of interpretation and has increasingly done so in recent decades. However, it has chosen to do so on a statute-by-statute basis in a way that has gone mostly unnoticed by scholars and judges. We developed a dataset by using computer code to search the U.S. Code dating back to 1946 for specific phrases indicating a rule of interpretation, then manually checked and classified each rule. These rules not only show that Congress can create interpretive rules, and has become increasingly likely to do so, but they also call into question how we should think about the use of judicial canons. Canons are judge-made interpretive presumptions, and this Article shows that Congress increasingly includes interpretive rules to the same effect in the enacted text of its statutes. For example, one of the most important substantive canons of interpretation is the federalism canon, which tells courts to presume that a federal statute does not preempt state law absent a clear congressional intent to do so. Yet, Congress includes hundreds of rules of interpretation in the U.S. Code that directly address this same issue. Similarly, Congress directly addresses canons like the presumption against implied repeal, presumptions of consistent usage, and many others in enacted statutes. This Article's findings should cause judges and scholars to rethink the use of canons and the justifications for using them.
      PubDate: Mon, 06 Jun 2022 12:11:25 PDT
       
  • Cannabis, Consumers, and the Trademark Laundering Trap

    • Authors: Viva R. Moffat et al.
      Abstract: At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the ''lawful use" doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States Patent & Trademark Office (PTO) and the federal courts does little to protect against this outcome and is thus at odds with trademark law's consumer protection and fair competition goals.This Article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark's stated goals. Given that the PTO is unlikely to abandon the lawful use doctrine anytime soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts' consideration of trademark disputes involving cannabis companies. These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime.
      PubDate: Mon, 06 Jun 2022 12:11:23 PDT
       
  • Atomistic Antitrust

    • Authors: Robin C. Feldman et al.
      Abstract: Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive.That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market.The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can't effectively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way.Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus to challenged conduct. Instead of asking "is the overall behavior of this company reducing competition in the market," they focus on a particular merger or challenged monopolistic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today.
      PubDate: Mon, 06 Jun 2022 12:11:20 PDT
       
  • Stale Real Estate Convenants

    • Authors: Robert C. Ellickson
      Abstract: Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators might address the risk that covenants will become obsolete.
      PubDate: Mon, 06 Jun 2022 12:11:18 PDT
       
  • Table of Contents (v. 63, no. 6)

    • PubDate: Mon, 06 Jun 2022 12:11:15 PDT
       
  • Fourth Amendment Infringement Is Afoot: Revitalizing Particularized
           Reasonable Suspicion for Terry Stops Based on Vague or Discrepant Suspect
           Descriptions

    • Authors: Caroline E. Lewis
      Abstract: In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. The resulting “Terry stop” created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. The officer need only have “reasonable suspicion supported by articulable facts” based on the circumstances and the officer’s policing “experience that criminal activity may be afoot.” Reasonable suspicion is—by design—a broad standard, deferential to police officers’ judgment. Law enforcement officers across the United States employ this powerful tool extensively, performing millions of Terry stops each year.But what if that suspect description is vague, consisting of few descriptors' Or what if there are many discrepancies between the description given and the appearance of the person the officers eventually stop under suspicion that he is the perpetrator' When reasonable suspicion to stop and frisk someone is based largely on a physical description of a criminal suspect, how “particularized” must that description be'This Note examines this specific reasonable suspicion factor: the resemblance of a person stopped under Terry to an active suspect description of someone who has very recently committed a crime. Exploring this scenario, this Note seeks to analyze courts’ varying tolerance levels for vague or discrepant suspect descriptions creating reasonable suspicion, discuss the detrimental and unconstitutional impacts of an overly broad standard for this reasonable suspicion factor, and propose a new standard for courts to employ.
      PubDate: Thu, 12 May 2022 14:07:32 PDT
       
  • No Child Left Behind Bars: Applying the Principles of Strict Scrutiny When
           Sentencing Juveniles Tried as Adults

    • Authors: Max Chu
      Abstract: The Commonwealth of Virginia was the first in the nation to pass legislation that provides judges with the discretion to veer away from the mandatory minimum sentence and to impose trauma-informed and age-appropriate sentences for juvenile offenders convicted of felonies and tried as adults. Although Virginia’s new law, House Bill 744 (HB 744), is a pioneering step in the right direction, this Note argues that the law may now provide judges with too much discretion. In other words, HB 744 alone, without more guidance, does not go far enough to protect the rights of juvenile offenders.Therefore, this Note proposes a new judicial policy to guide judges in Virginia, before they exercise their discretion to sentence a juvenile offender in adult court. Judges operating under the proposed standard must adopt the principles of strict scrutiny when deciding the individual sentence of a juvenile offender tried as an adult. Accordingly, judges must ensure that their sentences are narrowly tailored to serve a compelling governmental interest. This Note argues that juvenile offenders are a suspect class under Carolene Products’ Footnote Four, and thereby deserve such heightened scrutiny over the judicial review of laws that affect their rights under the Equal Protection Clause of the Fourteenth Amendment. Simply put, if judges fail to abide by the principles of strict scrutiny when deciding upon a sentence, appellate judges must strike the sentence down as unconstitutional if the sentence is subsequently appealed.
      PubDate: Thu, 12 May 2022 14:07:29 PDT
       
  • Disclosure of Private Climate Transition Risks

    • Authors: Michael P. Vandenbergh
      Abstract: This Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve financial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms in several fossil fuel-heavy sectors, this Article concludes that roughly a third of these firms disclose the risks and opportunities posed by private environmental governance (PEG) initiatives. The assessment also finds, however, that disclosures vary substantially among similar firms and among similar sectors. The Article argues that this heterogeneity in disclosure is not surprising given that the SEC’s 2010 climate guidance and other disclosure regimes do not call sufficient attention to PEG climate initiatives, and many lawyers think of environmental risks as synonymous with governmental regulatory risks. The legal literature on climate transition risk focuses principally on whether regulatory and market-based risks should be disclosed, but it overlooks the importance of the material risks posed by PEG climate initiatives. PEG climate initiatives pose a discrete form of climate transition risk for many firms, and revisions to the SEC guidance and other disclosure regimes to account for PEG climate initiatives can be adopted more quickly, produce more complete financial disclosures, and yield greater and more durable emissions reductions than many other approaches.
      PubDate: Thu, 12 May 2022 14:07:27 PDT
       
  • Private Rights of Action in Privacy Law

    • Authors: Lauren Henry Scholz
      Abstract: Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government’s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of action can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.
      PubDate: Thu, 12 May 2022 14:07:24 PDT
       
  • Abortion, Sterilization, and the Universe of Reproductive Rights

    • Authors: Melissa Murray
      Abstract: In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number of lower federal court judges have referenced the alleged links between abortion, contraception, and eugenics in their defense of abortion restrictions.The effort to link abortion and contraception to the racialized logic of the eugenics movement is interesting on a number of fronts. As I have written elsewhere, this narrative is at once a potent defense of abortion restrictions and a more calculated effort to recast the social meaning of reproductive rights from a question of gender equality to one of racial inequality. But equally noteworthy is the narrative’s utter neglect of the eugenics movement’s investment in coercive sterilization—not abortion or contraception—as its preferred vehicle of reproductive control and social engineering.With all of this in mind, this Article seeks to reframe the interest in reproductive rights, racism, and eugenics to include a more robust discussion of sterilization practices. To do so, the Article supplements the historical narrative to clarify that the eugenics movement’s interest in racial betterment was primarily directed at improving and purifying the white race. To the extent the eugenics movement focused on abortion and contraception, it was in limiting middle- and upper-class white women’s access to these vehicles of reproductive freedom on the ground that the reproduction of these constituencies was vital to the future of the white race. Insofar as eugenicists were interested in limiting reproduction, their interest was directed toward those individuals who possessed traits deemed unsuitable for the propagation of the white race—and meaningfully, their preferred vehicle for limiting reproduction among the “unfit” was not contraception or abortion, but rather, sterilization.And even as popular interest in eugenics waned in the 1940s, the state’s interest in sterilization as a means of reproductive control did not abate. Indeed, as the Civil Rights Movement and the welfare rights movement dawned, many states repurposed sterilization to limit the reproductive capacities of those deemed sexually immoral or unduly dependent on the public fisc, usually poor women of color.To underscore the relationship between race, class, dependence, and state-endorsed sterilization, the Article highlights Cox v. Stanton, a challenge to North Carolina’s sterilization program litigated by Ruth Bader Ginsburg, Brenda Feigen Fasteau, and the ACLU’s Women’s Rights Project in the 1970s. Although Cox did not result in the invalidation of state sterilization programs, it—and other contemporary challenges to sterilization abuse—made clear the centrality of sterilization as a technology of reproductive control, as well as sterilization abuse’s racialized impact. In this regard, the nascent effort to associate abortion and contraception with eugenic racism not only equates state-sponsored reproductive abuses with an individual’s decision to terminate or avoid pregnancy, but also overlooks—and indeed, further obscures—the significant history of racialized sterilization abuse in the United States.
      PubDate: Thu, 12 May 2022 14:07:22 PDT
       
  • Endorsing After Death

    • Authors: Andrew Gilden
      Abstract: An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a highly paid celebrity endorser even though she died almost sixty years ago and her “estate” is controlled by individuals without any personal connection to her.This Article closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property (IP) scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this Article shows that posthumous endorsement rights pose unique and largely unaddressed concerns.First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent, to their heirs, to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the “official” voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market.Nonetheless, there are some important reasons for IP laws to recognize at least some form of posthumous endorsement rights. Marketing scholarship has shown that posthumous endorsements are often material to consumers, and there is a shared interest among the decedent, their fans, and their families in shutting down false suggestions that a good or service received the decedent’s blessing. Accordingly, this Article proposes that courts only recognize posthumous endorsement rights where there is both “privity and power.” An entity can only meaningfully endorse goods or services on behalf of a decedent—or affirmatively disclaim their approval—when they (1) own the image, word, or symbol that is signaling endorsement and (2) are empowered to make legal decisions on the decedent’s behalf. Only when an individual is empowered to step into the shoes of a decedent, and required to act in the decedent’s best interests, can the individual fairly and accurately speak for the dead.
      PubDate: Thu, 12 May 2022 14:07:19 PDT
       
  • Substituted Service and the Hague Service Convention

    • Authors: William S. Dodge
      Abstract: State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses on two kinds of substituted service that many states permit: (1) substituted service on affiliated companies; and (2) substituted service on state officials.The Article argues that states should liberalize their rules for substituted service on affiliated companies by focusing on whether service on the affiliate provides adequate notice to the defendant rather than on whether there are grounds to pierce the corporate veil, as many states currently do. The Article further argues that when substituted service is made on a state official, the Due Process Clauses require that a copy of the service be sent abroad, making the Hague Convention applicable.
      PubDate: Thu, 12 May 2022 14:07:16 PDT
       
  • Table of Contents (v. 63, no. 5)

    • PubDate: Thu, 12 May 2022 14:07:14 PDT
       
  • A Safe Culture for Neuroscience

    • Authors: Bruce Waller
      Abstract: When examining the future impact of neuroscience on the law, the first step requires narrowing the scope of the inquiry: advances in neuroscience are exciting, but the beneficial or harmful effects of those advances will depend on the specific culture in which they occur. In some cultures—such as in Norway or Sweden—integrating advances in neuroscience into the criminal justice system is likely to enhance understanding and improve the treatment of offenders and potential offenders. In the neoliberal culture of the United States, advances are more likely to exacerbate the profound wrongs of the criminal justice system rather than ameliorate them. The important question for neoliberal cultures is whether advances in neuroscience might contribute to the reform of those cultures. While neuroscience can contribute to that goal, there is a danger that neuroscience advances might encourage the radical individualist orientation of neoliberalism and revive a “nothing works” attitude toward rehabilitation. The benefits of neuroscience are more likely to emerge when the worst elements of neoliberal culture have been reformed.
      PubDate: Fri, 15 Apr 2022 13:29:23 PDT
       
  • A Safe Culture for Neuroscience

    • Authors: Bruce Waller
      Abstract: When examining the future impact of neuroscience on the law, the first step requires narrowing the scope of the inquiry: advances in neuroscience are exciting, but the beneficial or harmful effects of those advances will depend on the specific culture in which they occur. In some cultures—such as in Norway or Sweden—integrating advances in neuroscience into the criminal justice system is likely to enhance understanding and improve the treatment of offenders and potential offenders. In the neoliberal culture of the United States, advances are more likely to exacerbate the profound wrongs of the criminal justice system rather than ameliorate them. The important question for neoliberal cultures is whether advances in neuroscience might contribute to the reform of those cultures. While neuroscience can contribute to that goal, there is a danger that neuroscience advances might encourage the radical individualist orientation of neoliberalism and revive a “nothing works” attitude toward rehabilitation. The benefits of neuroscience are more likely to emerge when the worst elements of neoliberal culture have been reformed.
      PubDate: Fri, 15 Apr 2022 13:29:23 PDT
       
  • Neuroscience, Criminal Sentencing, and Human Rights

    • Authors: Elizabeth Shaw
      Abstract: This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal right against degrading treatment) as a constraint on the state’s use of neurointerventions. It also discusses the extent to which traditional forms of punishment, such as incarceration, interfere with the right to mental integrity.
      PubDate: Fri, 15 Apr 2022 13:29:20 PDT
       
  • Collective Cognitive Capital

    • Authors: Emma R. D. Murphy
      Abstract: This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put simply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on money, rights, or other policy metrics.To that end, this Article introduces and explores the novel framework of “collective cognitive capital”: a way of thinking of brain health and brain function as an aggregated resource. Collective cognitive capital is a conceptual framework for synthesizing brain and behavioral data and using it to assess the impacts of policy choices. The core thesis for this future of “law and neuroscience” is simple: we can and should use brain and behavioral science to evaluate public policy decisions by how they affect the brain functioning of the people. Normatively, policies should seek to maximize “collective cognitive capital” because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize individual agency and freedom.
      PubDate: Fri, 15 Apr 2022 13:29:17 PDT
       
  • How Experts Have Dominated the Neuroscience Narrative in Criminal Cases
           for Twelve Decades: a Warning for the Future

    • Authors: Deborah W. Denno
      Abstract: Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, especially insanity cases, which often concern a defendant’s brain damage or abnormality. To support these arguments, this Article reports the results of my original Twelve-Decade Neuroscience Study (“The Study”) examining the criminal justice system's use of the insanity defense in all criminal cases—totaling 8,358—which involved neuroscientific evidence from 1900 to 2020.The Study shows that, despite the increasing influx of neuroscientific evidence and its purportedly greater objectivity into the criminal justice system, experts still sway how that evidence is cast when it concerns a defendant claiming insanity. The Study’s results also explain how experts for the defense and the prosecution vary in their approaches. For example, defense experts employ narratives to emphasize the impact of neuroscientific evidence on a defendant's brain and behavior for purposes of mitigating punishment. In contrast, prosecutors increasingly use accusations of malingering in their attempts to win cases—claiming that defendants are lying about their disorders. This Article concludes that in years hence, courts may expect seemingly more impartial information derived from neuroscientific tests to incorporate more accurate and precise indicators of the human mental condition. Whether the field of neuroscience will succeed in that quest will be one more question for the future and the experts who still may try to shape it.
      PubDate: Fri, 15 Apr 2022 13:29:09 PDT
       
 
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