Now showing items 21-40 of 18298

    • Fairness and Contestability in the Digital Markets Act

      Crémer, Jacques; Crawford, Gregory S.; Dinielli, David; Fletcher, Amelia; Heidhues, Paul; Schnitzer, Monika; Scott Morton, Fiona (Yale Journal on Regulation, 2023)
      According to the managerial strategy literature, a, if not the, key to large profits is the creation of “moats” that protect firms from competition. Firms with market power create moats to maintain that power, and there exist strong incentives to develop new technologies that allow for broader and deeper moats. On the other hand, from a broader societal perspective, and particularly from the perspective of consumers, these moats often are harmful: they surround customers and deny them the opportunity to purchase from competitors. As a result, consumers suffer from the high prices and/or low quality imposed by the incumbent firm, whose incentives to provide the amount and type of innovation desired by consumers are decreased.
    • Equitable Interoperability: The “Supertool” of Digital Platform Governance

      Scott Morton, Fiona M.; Crawford, Gregory S.; Crémer, Jacques; Dinielli, David; Fletcher, Amelia; Heidhues, Paul; Schnitzer, Monika (Yale Journal on Regulation, 2023)
      This Article is concerned with competition in digital platform markets where network effects are strong. As is widely acknowledged, these markets have an inherent tendency towards concentration, leaving consumers with little competition in the market. We explain how interoperability regulation can help stimulate competition in the market in a way that benefits consumers. There are different types of regulations that involve different levels of regulatory control of firms’ strategies and products. Interoperability is a form of regulation that is less intrusive than many others and is particularly suited to digital business models and fast changing digital technology. The report solicited by the European Commission on “Competition Policy for the Digital Era” (the Vestager Report) made this point in 2019,1 and we build on it here. Policy tools in this area include data portability and open standards, as well as interoperability. We will distinguish among these tools below, but we note here that the focus of this Article is on interoperability.
    • Consumer Protection for Online Markets and Large Digital Platforms

      Dinielli, David; Scott Morton, Fiona M.; Seim, Katja; Sinkinson, Michael; Fletcher, Amelia; Crawford, Gregory S.; Crémer, Jacques; Heidhues, Paul; Luca, Michael; Salz, Tobias; et al. (Yale Journal on Regulation, 2023)
      Consumer-protection law is vital for ensuring that market-based economies work in the economic interest of consumers as well as businesses, and thus to the benefit of society as a whole. This is well understood. Caveat emptor—“let the buyer beware”—may have made sense as the default risk allocation between buyer and seller in the village marketplaces of yore, in which transactions were relatively small, and buyers and sellers were likely to know and expect future dealings with each other. These features would naturally encourage traders to comply with community-generated and community-enforced norms of commercial fair dealing.1 In these admittedly idealized markets, sellers who cheated would quickly be found out, and they would face high social and economic costs, in contrast to the social and economic costs sellers face in modern markets, where traders are more likely to be strangers engaged in one-off transactions. The idealized markets of yore also dealt mostly in physical goods, which allowed buyers the opportunity to examine the goods before purchase. Modern markets, especially online markets, differ from the idealized village marketplace in significant ways. The scope and scale of most contemporary online markets, for example, make it unrealistic to hope that relational obligations or a shared sense of morality could fully counterbalance incentives to cheat.
    • Breaking the most vulnerable branch: do rising threats to judicial independence preclude due process in capital cases?

      Bright, Stephen B. (Columbia Human Rights Law Review, 1999)
      We have been asked this morning to address whether the attacks on the judiciary and the efforts of politicians to change the judiciary so it will do things the politicians want it to do are affecting due process in capital cases. The answer to that question is yes.
    • Turning Celebrated Principles into Reality

      Bright, Stephen B. (National Association of Criminal Defense Lawyers, 2003)
      No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel. While leaders of the judiciary, legal profession and government give speeches every Day about the essential role of lawyers in protecting the individual rights of people accused of crimes, many states have yet to create and fund adequately independent programs for providing legal representation. As a result, some people — even people accused of felonies — enter guilty pleas and are sentenced to imprisonment without any representation. Others languish in jail for weeks or months — often for longer than any sentence they would receive — before being assigned a lawyer. Many receive only perfunctory representation — sometimes nothing more than hurried conversations with a court-appointed lawyer outside the courtroom or even in open court — before entering a guilty plea or going to trial. The poor person who is wrongfully convicted may face years in prison, or even execution, without any legal assistance to pursue avenues of post-conviction review.

      Bright, Stephen B. (St. Louis University Law Journal, 2016)
      A speech is presented by Stephen B. Bright The Richard J. Childress Memorial Lecture 2016 . Topics discussed include problem of poverty in our court system; issues of poor people with urgent, unmet legal needs who lack access to the courts and have no ability to even confer with a lawyer about their legal problems; and the issues of poor people accused of crime.
    • Rigged: When Race and Poverty Determine Outcomes in the Criminal Courts

      Bright, Stephen B. (OHIO St. J. CRIM. L., 2016)
      A Pennsylvania newspaper recently reported that many people sentenced to death in that state since 2005 were represented by lawyers who were drug and alcohol addicts, had histories of mishandling cases or were convicted felons.1 Eighteen percent of those sentenced to death had been represented by lawyers who had been disciplined for professional misconduct. A majority of those lawyers had received the most serious discipline: suspension or disbarment. A reporter from the paper asked how was it possible that the most important cases-involving life and death-were being handled by the least capable lawyers. The answer is that the system is rigged against the poor and against people of color.

      Bright, Stephen B. (Houston Law Review, 2018)
      Representation of poor people accused of crimes must be independent of the judiciary if criminal proceedings are to be fair and reliable. Independence is the first of the American Bar Association's Ten Principles of a Public Defense Delivery System (2002). Independence allows judges and defense counsel to perform their very different roles within the adversary system. Inadequate representation of the accused by court-appointed lawyers has contributed to 127 executions of people sentenced to death in Harris County--more executions in the last 40 years than any state except Texas itself. Some lawyers have lacked the qualifications to handle capital cases. The Texas Court of Criminal Appeals rejected a challenge on behalf of Anthony Graves to the inadequate pleadings filed by the inexperienced lawyer it provided him for state habeas corpus proceedings. Different counsel established a constitutional violation in federal habeas corpus review and Graves was later exonerated. He is one of 12 men sentenced to death in Texas who were later exonerated. But others sentenced to death have had no review of their cases by the federal courts because the lawyers appointed to represent them missed the statute of limitations for filing a petition for federal habeas corpus. There have been other egregious instances of malpractice such as lawyers sleeping during death penalty trials, filing briefs that were incomprehensible or did not apply to the case in which they were submitted, and abandoning clients and turning against them. Neither judges nor the Texas Bar have taken action to prevent such malpractice from occurring again. Judges have continued to appoint those lawyers to represent defendants and the Bar has taken no disciplinary action. The Texas Court of Criminal Appeals has sanctioned lawyers for failing to file pleadings a full seven days before an execution but has not punished those who slept during trials or those who submitted incomprehensible or irrelevant briefs--the convictions and death sentences were upheld in those cases. The defense of capital and other criminal cases requires training, experience, expertise in a number of subjects, and the support of investigators, social workers and experts. Public defender offices and capital habeas units all over the country provide representation by lawyers who specialize and are trained and supervised. Two capital habeas units opened at federal public defender offices in Texas in 2017, over 20 years after such offices were established in other federal districts in other parts of the country. The units and other offices, such as the Office of Capital and Forensic Writs and the Regional Public Defender for Capital Cases are positive developments that will significantly improve representation. Members of the Bar have a responsibility to provide access to justice that includes providing competent counsel in criminal cases.
    • Fifty Years of Defiance and Resistance After Gideon v. Wainwright

      Bright, Stephen B.; Sanneh, Sia M. (Yale Law Journal, 2013)
      In its 1963 ruling Gideon v. Wainwright, the Supreme Court declared the right to a lawyer "fundamental and essential" to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person "stands equal before the law." In later decisions, the Court ruled that a poor person facing any loss of liberty must have a lawyer "so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." This Essay argues that fifty years later, this right has not been realized. The U.S. criminal system is not truly adversarial because prosecutors possess broad, unchecked power and therefore determine results in criminal cases with little or no input from the defense. Governments have failed to adequately fund defense systems, many judges tolerate or welcome inadequate representation, and the Supreme Court has refused to require competent representation, instead adopting a standard of "effective counsel" that hides and perpetuates deficient representation. In this system, poverty, not justice, dictates outcomes.
    • The Death Penalty in the Twenty-First Century The Death Penalty in the Twenty-First Century

      Bright, Stephen B. (American University Law Review, 1995)
      The following pages contain excerpts from recent panel discussions held at The American University, Washington College of Law, sponsored by the Criminal Law Society (CLS). The theme of each event was the death penalty in the twenty-first century. As such a passionate and complex issue often does, the death penalty inevitably creates controversy. Through these panel discussions, CLS aimed to create a forum for an intellectual discussion about the facts and the impact of modem death penalty jurisprudence in the United States.
    • Death in Texas - Not Even the Pretense of Fairness

      Bright, Stephen B. (National Association of Criminal Defense Lawyers, 1999)
    • The Role of Race, Poverty, Intellectual Disability, and Mental Illness in the Decline of the Death Penalty

      Bright, Stephen B. (2015)
      Capital punishment is a difficult and sensitive topic because it involves terrible tragedies, the murder of innocent people, loss and suffering, and the passions of the moment. It is used in only a very small percentage of cases in which it could be imposed and is currently in decline. Six states have recently abandoned it, and the number of death sentences imposed in the country decreased from over 300 per year in the mid-1990s to less than eighty in the last several years. And so it is appropriate for us to ask whether death remains an appropriate punishment in a modern society, whether it is fairly carried out without race and poverty influencing who dies, and whether it is imposed only upon the most incorrigible offenders who commit the most heinous crimes.
    • PACT: An Oral History

      Roberts, Eleanor (2022)
      This oral history documents the origins and trajectory of a group run by incarcerated men called the Project for A Calculated Transition (“PACT”) at Green Haven Correctional Facility in Stormville, New York, and their community partnership with students at Yale Law School. Incarcerated activists at Green Haven—a maximum-security prison—created PACT in the wake of the Attica Uprising. While PACT welcomes men of all backgrounds, most of the members of PACT are men of color who grew up in neighborhoods devoid of state investment, and most are serving long sentences for serious crimes. Meanwhile, most, but not all, of the Yale members have been white students from economically privileged communities, and their group includes all genders. The partnership has persisted since 1978. Over the past forty-three years, this community has generally met every other Monday night to discuss political, legal, and moral issues as peers. PACT’s partnership with Yale Law students has most recently consisted of a reading group where the incarcerated men lead the discussion, though in the past Yale students and PACT members have also taken turns leading discussions. Although the format of the meetings has changed, throughout the years, the members have challenged each other to change their perspectives and forge relationships built on honesty and respect. There have been some years where Yale students were unable to enter the prison, including the period between the start of the COVID-19 pandemic in March 2020 and the submission of this paper in January 2022.
    • Literary Influence on Legal Philosophy: A Comment on Professor Meyler’s Cardozo's Literary Precedents

      Kendrick, Leslie (2023)
      What shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain their temperament and style much the same way as the rest of us—which is how, exactly? Do we soak up influences like sponges? Or do we spring forth like Athena, our outlook and predilections mostly formed, and find in outside influences that which we want to see? I am not qualified to answer these questions, about either judges or people in general, yet they are the questions that Bernadette Meyler’s lovely piece on Cardozo’s Literary Precedents prompts for me. I will suggest here that Meyler’s piece identifies and rejects some bad answers to these questions and also hints at some more intriguing possibilities.
    • Some Notes on George Eliot

      Cardozo, Benjamin N. (2023)
      It will be found true, I think, of the works of every mastermind that there is in them some recurring note, some theme, some refrain, that stamps the author’s personality upon them, and forms a principle of unity throughout them all.1 It may be simply by some distinctive line of thought, it may be merely by a prevailing mental tone, that nature thus reveals how one-sided are the broadest minds, and proves how narrow, after all, are the best and the greatest of mankind. For a great truth paralyzes as well as inspires. It limits as well as exalts. Minds that have felt its full influence are, as Mr. Lowell would have said, possessed by it; they do not possess it. They are in its power; it is not in theirs. And so it comes to pass that, in many cases, at least, a tendency toward repetition in an author is a token, not of sterility, but of strength. It marks the sincerity, the truth of his convictions; it shows that his writings stand for thoughts that have become imbedded in his being; and thus we can judge him, if not more favorably, at least with a keener sympathy. Thoughts, as Emerson so clearly saw, are rarer possessions than most of us seem to fancy; and only by stress and toil and wear of spirit can one of them be made our own. The rest that receive the name are, in fact, mere outgrowths of these central ideas of our being; and we ought hardly to quarrel with those who have the frankness to show us these ideas, running through all their works, colouring all their conceptions, and yielding them an infallible test of truth and beauty.
    • Cardozo’s Literary Precedents

      Meyler, Bernadette (2023)
      Benjamin Cardozo penned his essay “Law and Literature” long before the field of law and literature took off in the 1970s.1 The piece, which furnishes a typology of judicial styles, has become a classic early example of engagement with the intersection of the two areas.2 “Law and Literature” fits squarely within what is now called the genre of “law as literature,” considering the literary attributes of legal writing.3 Reading it, one might never imagine that Cardozo had also considered works of fiction in depth. Indeed, few know of his early study of literature, including his heretofore unpublished undergraduate paper on novelist George Eliot.4 Although this earlier work does not touch on law explicitly, it demonstrates the emergence of Cardozo’s concerns with duty, causation, and responsibility even before he became a judge, presaging the account of morality furnished in The Nature of the Judicial Process. It also helps to flesh out the reasons why, as he claims in “Law and Literature,” style is so significant.
    • Ambivalence, Judicial Craftmanship, and the Development of the Law: Variations on a Theme of Benjamin Cardozo

      Amaya, Amalia (2023)
      In The Nature of the Judicial Process, Cardozo identifies the embrace of uncertainty as a mark of judicial expertise. Such uncertainty, he claims, provides an occasion for the exercise of creative energy and the judicial development of the law. This paper critically examines and extends, in light of contemporary work on the philosophy and psychology of ambivalence, Cardozo’s views about the relevance of uncertainty in judicial decision making and its import for the evolution of the law. First, it provides an account of the benefits of ambivalence in judicial decision-making, with a special focus on the links that there are between ambivalence and judicial creativity. Second, it argues that there is a certain tension between Cardozo’s views on the important role that ambivalence plays in judicial decision-making and his view of law’s evolution as a streamlined, self-correcting, process. Two problems—the problem of hidden alternatives and the problem of unconceived alternatives—and the ever-present possibility of error vividly bring to light the extent to which law’s progress may be hampered. Third, it argues that for judges to recognize and resolve ambivalence in ways that positively contribute to the development of the law, a certain kind of judicial temperament must be developed. This temperament is neither skeptic nor dogmatic, vindicates imagination as a critical capacity for excellence in judging, and fosters a judicial style (and, more broadly, a legal culture) that, in Cardozo’s spirit, frees itself from the quest for certainty.
    • Cardozo and the Nature of the Equitable Process

      Smith, Henry E. (2023)
      Benjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age.
    • Cardozo’s Equitable Method and Judicial Lawmaking’s Auxiliary Role: A Comment on Professor Samet’s Equity, Morality, and Law in The Nature of the Judicial Process

      von Schütz, Konstanze (2023)
      As Irit Samet expertly demonstrates in her contribution to this Symposium, the jurisprudence of equity is “key” to understanding some of the central ideas Benjamin N. Cardozo sets out in The Nature of the Judicial Process (NJP). This is, as she puts it, because equity and the ideas underlying it serve “as an essential foil for the work [Cardozo] aims to do in the text.” According to Samet, what Cardozo is after is the promotion of a progressive agenda that succeeds in striking the balance between dynamism and stability of a legal system. For her, the aims laid out in the NJP resonate strongly with the aspiration of equity. In her article, she draws attention to the structural similarities between Cardozo’s picture of adjudication, on the one hand, and the jurisprudence of equity, on the other. On Samet’s view, equity aligns law and morality while carefully balancing judicial creativity and adherence to established rules and precedent. Equity, so she argues, lays out a picture of judicial decision-making that is attuned to the necessity to synchronize law and morality without running roughshod over the rule of law. Samet sees the jurisprudence of equity as exemplifying “the viability of aligning law and morality as a project that judges can and ought to pursue.