LAWGICAL: Jurisprudential and Logical Considerations

Such creative statutory construction is familiar to anyone who reads appellate decisions. Whatever one\u27s views on so-called strict construction, one must recognize that in the actual working of law, this type of creative interpretation is prevalent. One who designs a computer system to do some aspects of legal analysis must take into consideration the creative dimension of the judge\u27s role. Otherwise the computer will calculate legal results which are literally correct but faithless to the law as it is actually interpreted. It would be easy to design a system to draw legal inferences if one accepted a mechanical, slot machine jurisprudence. However, whatever view one takes on the subject, slot machine jurisprudence does not capture what the courts actually do. Thus, any computer system based upon mechanistic assumptions would be useless to the practitioner. This analysis applies with equal force to the application of logic to law

The Advocate, Vol. 23, No. 2, 1993

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The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act

The advent of digital technology has increasingly stressed copyright\u27s ability to protect adequately creative works. By widely dispersing the ability to make near-perfect copies, digital technology renders copyright\u27s traditional approach of controlling unauthorized copying by direct legal action against the individual copier increasingly anachronistic. Fearing copyright\u27s inability to cope with the resulting risk of widespread private copying, copyright producers requested and Congress enacted the Digital Millennium Copyright Act ( DMCA ). The DMCA prohibits almost entirely the use and distribution of decryption technology that would defeat encryption-based controls placed on digital works, and thereby enables copyright producers to rely on encryption to protect their digital works. In doing so, Congress has re-created a protection scheme nearly identical to the one that the Stationers\u27 Company of London used to maintain its printing monopoly in England more than three hundred years ago. Both protection schemes rely on legal prohibitions that limit access to the technology necessary to reproduce protected works. Yet, given the threat digital technology poses, Congress may have had no choice. With anything less than almost complete prohibition, decryption technology would have inevitably slipped into the marketplace more generally and restored the potential for widespread private copying. Nevertheless, this article identifies two considerations that suggest that Congress has gone too far in enacting the DMCA. First, private copying is unlikely to reduce the revenue and incentives for creative works at the margins and is therefore not a threat to the progress of Science Congress is constitutionally constrained to serve. Second, private copying represents a critical form of democratic self-governance--civil disobedience--that allows consumers to determine the proper level of protection directly and thereby avoids the agency-cost flaws of determining copyright\u27s proper scope through our elected representatives. Given these two considerations, the DMCA\u27s prohibitions on the use and distribution of decryption technology may prove not merely unwise, but constitutionally infirm

The Charitable Status of Nonprofit Hospitals: Toward a Donative Theory of Tax Exemption

This Article examines the growing controversy over the multi-billion dollar charitable tax exemption enjoyed by nonprofit hospitals. It begins by articulating four criteria for evaluating a rationale of the charitable exemption: deservedness, incorporating the elements of worth and need; proportionality; universality; and historical consistency. The Article then employs these criteria to refute three conventional explanations of why nonprofit hospitals are exempt: because health care is a per se charitable activity; because the treatment of indigent patients relieves a government burden; and because nonprofit hospitals provide community benefits. The Article also uses these criteria to refute two academic theories: Boris Bittker\u27s income measurement rationale and Henry Hansmann\u27s capital subsidy theory. This Article proposes a donative theory as an alternative rationale for the charitable exemption. The donative theory posits that charity describes an entity capable of attracting a substantial level of philanthropic support from the public at large. Donations exist where there is a combined failure of private markets and direct public funding to supply a shared public benefit at the optimally desired level. Donative institutions deserve a tax subsidy because the public\u27s support signals their worth, and the free-rider tendency that affects all giving assures the need for an additional, shadow subsidy. The Article further demonstrates that the donative theory comports with the statutory scheme and the four centuries of legal history that shape the legal concept of charity. In particular, the donative theory provides the only explanation of the tax law\u27s otherwise unjustifiable reliance on the law of charitable trusts

Into the Vortex of Legal Precision : Access to Justice, Complexity, and the Canadian Tax System

This thesis is an exploration of access to justice issues in the Canadian tax system. Drawing on the work of Roderick Macdonald, it argues for a broad conception of access to justice based on the empowerment of individuals in all of the sites, processes, institutions where law is made, administered, and applied. It argues that tax law shows the usefulness of this comprehensive approach to access to justice. Using the comprehensive approach to access to justice, the thesis goes on to argue that legal complexity should be seen as an important access to justice issue in tax law. It lays out a pragmatic, access to justice-oriented framework for talking about complexity in tax law. Applying this framework, it examines the sources of complexity in Canadian tax law and suggests a path toward simplification. The final chapters of the thesis contain examples of the type of access to justice-oriented research and advocacy that these frameworks facilitate

The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act

The advent of digital technology has increasingly stressed copyright\u27s ability to protect adequately creative works. By widely dispersing the ability to make near-perfect copies, digital technology renders copyright\u27s traditional approach of controlling unauthorized copying by direct legal action against the individual copier increasingly anachronistic. Fearing copyright\u27s inability to cope with the resulting risk of widespread private copying, copyright producers requested and Congress enacted the Digital Millennium Copyright Act ( DMCA ). The DMCA prohibits almost entirely the use and distribution of decryption technology that would defeat encryption-based controls placed on digital works, and thereby enables copyright producers to rely on encryption to protect their digital works. In doing so, Congress has re-created a protection scheme nearly identical to the one that the Stationers\u27 Company of London used to maintain its printing monopoly in England more than three hundred years ago. Both protection schemes rely on legal prohibitions that limit access to the technology necessary to reproduce protected works. Yet, given the threat digital technology poses, Congress may have had no choice. With anything less than almost complete prohibition, decryption technology would have inevitably slipped into the marketplace more generally and restored the potential for widespread private copying. Nevertheless, this article identifies two considerations that suggest that Congress has gone too far in enacting the DMCA. First, private copying is unlikely to reduce the revenue and incentives for creative works at the margins and is therefore not a threat to the progress of Science Congress is constitutionally constrained to serve. Second, private copying represents a critical form of democratic self-governance--civil disobedience--that allows consumers to determine the proper level of protection directly and thereby avoids the agency-cost flaws of determining copyright\u27s proper scope through our elected representatives. Given these two considerations, the DMCA\u27s prohibitions on the use and distribution of decryption technology may prove not merely unwise, but constitutionally infirm

Professionalism in the Information and Communication Technology Industry

Professionalism is arguably more important in some occupations than in others. It is vital in some because of the life and death decisions that must be made, for example in medicine. In others the rapidly changing nature of the occupation makes efficient regulation difficult and so the professional behaviour of the practitioners is central to the good functioning of that occupation. The core idea behind this book is that Information and Communication Technology (ICT) is changing so quickly that professional behaviour of its practitioners is vital because regulation will always lag behind

Central Washington University 2018-2019 Undergraduate Catalog

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