Academic literature on the topic 'Washington (D.C.). Circuit Court'

Abstract Conference interpreting began at the 1919 Paris Peace Conference, where the League of Nations (LN) and its offsprings, the Permanent Court of International Justice and the International Labour Organization (ILO), were designed as tools of a new diplomacy by conferences. This meant the end of the virtual monopoly of French as the language of diplomacy and the presence of interpreters mediating between languages. This paper examines the context of the 1919 Washington International Labor Conference (ILC), the interpreting services, the interpreters’ working conditions, and proposes some conclusions. Sources include published records of the plenary meetings of the Washington ILC and unpublished documents from the Personnel files and other material from the archives of the ILO and the LN in Geneva.

The Bazelon Center for Mental Health Law (the Center), founded as the Mental Health Law Project by a group of attorneys and mental health professionals, has been a major advocacy force promoting the civil rights of persons with mental disabilities since the 1972 New York Willowbrook litigation.Named for D. C. Circuit Court of Appeals Judge David L. Bazelon, whose opinions first articulated the principles that the mentally disabled have a right to treatment in the least restrictive alternative setting, the Center has actively pursued greater rights for the mentally disabled in housing, education, and federal entitlements such as Medicaid, as well as in treatment-related issues.

David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World (Trevor Burnard)Louis Sala-Molins, Dark Side of the Light: Slavery and the French Enlightenment (R. Darrell Meadows)Stephanie E. Smallwood, Saltwater Slavery: A Middle Passage from Africa to American Diaspora (Stephen D. Behrendt)Ruben Gowricharn, Caribbean Transnationalism: Migration, Pluralization, and Social Cohesion (D. Aliss a Trotz)Vilna Francine Bashi, Survival of the Knitted: Immigrant Social Networks in a Stratified World (Riva Berleant)Dwaine E. Plaza & Frances Henry (eds.), Returning to the Source: The Final Stage of the Caribbean Migration Circuit (Karen Fog Olwig)Howard J. Wiarda, The Dutch Diaspora: The Netherlands and Its Settlements in Africa, Asia, and the Americas (Han Jordaan) J. Christopher Kovats-Bernat, Sleeping Rough in Port-au-Prince: An Ethnography of Street Children &Violence in Haiti (Catherine Benoît)Ginetta E.B. Candelario, Black Behind the Ears: Dominican Racial Identity from Museums to Beauty Shops (María Isabel Quiñones)Paul Christopher Johnson, Diaspora Conversions: Black Carib Religion and the Recovery of Africa (Sarah England)Jessica Adams, Michael P. Bibler & Cécile Accilien (eds.), Just Below South: Intercultural Performance in the Caribbean and the U.S. South (Jean Muteba Rahier)Tina K. Ramnarine, Beautiful Cosmos: Performance and Belonging in the Caribbean Diaspora (Frank J. Korom)Patricia Joan Saunders, Alien-Nation and Repatriation: Translating Identity in Anglophone Caribbean Literature (Sue N. Greene)Mildred Mortimer, Writings from the Hearth: Public, Domestic, and Imaginative Space in Francophone Women’s Fiction of Africa and the Caribbean (Jacqueline Couti)Colin Woodard, The Republic of Pirates: Being the True and Surprising Story of the Caribbean Pirates and the Man Who Brought Them Down (Sabrina Guerra Moscoso)Peter L. Drewett & Mary Hill Harris, Above Sweet Waters: Cultural and Natural Change at Port St. Charles, Barbados, c. 1750 BC – AD 1850 (Frederick H. Smith)Reinaldo Funes Monzote, From Rainforest to Cane Field in Cuba: An Environmental History since 1492 (Bonham C. Richardson)Jean Besson & Janet Momsen (eds.), Caribbean Land and Development Revisited (Michaeline A. Crichlow)César J. Ayala & Rafael Bernabe, Puerto Rico in the American Century: A History since 1898 (Juan José Baldrich)Mindie Lazarus-Black, Everyday Harm: Domestic Violence, Court Rites, and Cultures of Reconciliation (Brackette F. Williams)Learie B. Luke, Identity and Secession in the Caribbean: Tobago versus Trinidad, 1889-1980 (Rita Pemberton)Michael E. Veal, Dub: Soundscapes and Shattered Songs in Jamaican Reggae (Shannon Dudley)Garth L. Green & Philip W. Scher (eds.), Trinidad Carnival: The Cultural Politics of a Transnational Festival (Kim Johnson)Jocelyne Guilbault, Governing Sound: The Cultural Politics of Trinidad’s Carnival Musics (Donald R. Hill)Shannon Dudley, Music from Behind the Bridge: Steelband Spirit and Politics in Trinidad and Tobago (Stephen Stuempfle)Kevin K. Birth, Bacchanalian Sentiments: Musical Experiences and Political Counterpoints in Trinidad (Philip W. Scher)

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>* </span><span>A previous versions of this article was published in C. James Newlan’s journal, T</span><span>HE </span><span>S</span><span>OCIAL </span><span>C</span><span>RITIC</span><span>, </span><span>as Ellis Washington, </span><span>Excluding the Exclusionary Rule</span><span>, 3 T</span><span>HE </span><span>S</span><span>OC</span><span>. C</span><span>RITIC </span><span>(1998), and in E</span><span>LLIS </span><span>W</span><span>ASHINGTON</span><span>, T</span><span>HE </span><span>I</span><span>NSEPARABILITY OF </span><span>L</span><span>AW AND </span><span>M</span><span>ORALITY</span><span>: T</span><span>HE </span><span>C</span><span>ONSTITUTION</span><span>, N</span><span>ATURAL </span><span>L</span><span>AW AND THE </span><span>R</span><span>ULE OF </span><span>L</span><span>AW </span><span>16-28 (2002) [</span><span>hereinafter </span><span>W</span><span>ASHINGTON</span><span>, I</span><span>NSEPARABILITY OF </span><span>L</span><span>AW AND </span><span>M</span><span>ORALITY</span><span>]. For a comprehensive legal and historical analysis regarding the integration of the rule of law, jurispru- dence, and society in modern times, </span><span>see generally </span><span>Ellis Washington, </span><span>Reply to Judge Richard A. Posner on the Inseparability of Law and Morality</span><span>, 3 R</span><span>UTGERS </span><span>J. L. & R</span><span>ELIG</span><span>. 1 (2001-2002); </span><span>The Nuremberg Trials: The Death of the Rule of Law </span><span>(In International Law), 49 L</span><span>OY</span><span>. L. R</span><span>EV</span><span>. 471-518 (2003). </span></p><p><span>** </span><span>Ellis Washington, DePauw University; B.A. 1983, University of Michigan; M.M. 1986, John Marshall Law School; J.D. 1994. The author an editor at the U</span><span>NIVERSITY OF </span><span>M</span><span>ICHIGAN </span><span>L</span><span>AW </span><span>R</span><span>EVIEW </span><span>and a law clerk for the Rutherford Institute. He was a faculty member at Davenport University and member of the Board of Visitors at Ave Maria School of Law. Currently, Mr. Washington is a freelance writer and lecturer at high schools, universities, and law schools throughout America specializing in the history of law, legal and political philosophy, jurisprudence, constitutional law, critical race theory, and legal feminist theory. He also teaches composition at Lansing Community College. In addition to numerous articles, he has published three books: T</span><span>HE </span><span>D</span><span>EVIL IS IN THE </span><span>D</span><span>ETAILS</span><span>: E</span><span>SSAYS ON </span><span>L</span><span>AW</span><span>, R</span><span>ACE</span><span>, P</span><span>OLITICS AND </span><span>R</span><span>ELIGION </span><span>(1999); B</span><span>EYOND </span><span>T</span><span>HE </span><span>V</span><span>EIL</span><span>: E</span><span>SSAYS IN THE </span><span>D</span><span>IALECTICAL </span><span>S</span><span>TYLE OF </span><span>S</span><span>OCRATES </span><span>(2000, 2004); T</span><span>HE </span><span>I</span><span>NSEPRABILITY OF </span><span>L</span><span>AW AND </span><span>M</span><span>ORALITY</span><span>: T</span><span>HE </span><span>C</span><span>ONSTITUTION</span><span>, N</span><span>ATURAL </span><span>L</span><span>AW AND THE </span><span>R</span><span>ULE OF </span><span>L</span><span>AW </span><span>(2002). His article, </span><span>The Nuremberg Trials: The Death of the Rule of Law (In International Law)</span><span>, 49 L</span><span>OY</span><span>. L. R</span><span>EV</span><span>. 471-518 (2003), has received both national and international recognition and has been accepted into many prestigious archives and collections including–Chambers Library of the Supreme Court of the United States, State Museum of Auschwitz-Birkenau, The Simon Wiesenthal Center, The U.S. Holocaust Memorial Museum, The Elie Wiesel Foundation for Humanity. </span></p><p><span>*Exceeding gratitude to my friend, attorney Che Ali Karega (a.k.a. “Machiavelli”) for his antagonism, advice, ideas, source materials, and inspiration. To Arthur LaBrew, musicologist and historian, founder Michigan Music Research Center (Detroit), for his prescient comments and attention to detail on earlier drafts of the Article. To C. James Newlan, publisher of the Journal, T</span><span>HE </span><span>S</span><span>OCIAL </span><span>C</span><span>RITIC</span><span>, for being my friend, my first publisher, an intellectual, a visionary, and the first person to believe that I had ideas worthy to be published and read. </span></p></div></div></div>

In the last few decades, the studies in second language acquisition have not answered the question what mechanisms a human’s brain uses to make acquisition of language(s) possible. A neurocognitive model which tries to address SLA from such a perspective was suggested by Ullman (2005; 2015), according to which, “both first and second languages are acquired and processed by well-studied brain systems that are known to subserve particular nonlanguage functions” (Ullman, 2005: 141). The brain systems in question have analogous roles in their language and nonlanguage functions. This article is meant to critically analyse the suggested DP model within the context of neurocognitive studies of L2; and evaluate its contribution to the field of SLA studies.
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 This study aims to determine the effect of the whole language approach to the ability to read and write in English in early stages of children aged 5-6 years in one of the kindergartens in the Yogyakarta Special Region. The population in this study were 43 children who were in the age range of 5-6 years in the kindergarten. Twenty-nine participants were included in the experimental class subjects as well as the control class with posttest only control group design. Observation is a way to record data in research on early reading and writing ability. The results of Multivariate Anal- ysis of Covariance (Manova) to the data shows that 1) there is a difference in ability between the application of the whole language approach and the conventional approach to the ability to read the beginning of English; 2) there is a difference in ability between applying a whole language approach and a conventional approach to writing English beginning skills; 3) there is a difference in ability between the whole language approach and the conventional approach to the ability to read and write the beginning in English
 Keywords: Whole language approach, Early reading, Early writing, Early childhood
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IntroductionThe Internet (especially in the so-called Web 2.0 phase), digital media and file-sharing networks have thrust copyright law under public scrutiny, provoking discourses questioning what is fair in the digital age. Accessible hardware and software has led to prosumerism – creativity blending media consumption with media production to create new works that are freely disseminated online via popular video-sharing Web sites such as YouTube or genre specific music sites like GYBO (“Get Your Bootleg On”) amongst many others. The term “prosumer” is older than the Web, and the conceptual convergence of producer and consumer roles is certainly not new, for “at electric speeds the consumer becomes producer as the public becomes participant role player” (McLuhan 4). Similarly, Toffler’s “Third Wave” challenges “old power relationships” and promises to “heal the historic breach between producer and consumer, giving rise to the ‘prosumer’ economics” (27). Prosumption blurs the traditionally separate consumer and producer creating a new creative era of mass customisation of artefacts culled from the (copyrighted) media landscape (Tapscott 62-3). Simultaneously, corporate interests dependent upon the protections provided by copyright law lobby for augmented rights and actively defend their intellectual property through law suits, takedown notices and technological reinforcement. Despite a lack demonstrable economic harm in many cases, the propertarian approach is winning and frequently leading to absurd results (Collins).The balance between private and public interests in creative works is facilitated by the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107). The majority of copyright laws contain “fair” exceptions to claims of infringement, but fair use is characterised by a flexible, open-ended approach that allows the law to flex with the times. Until recently the defence was unique to the U.S., but on 2 January Israel amended its copyright laws to include a fair use defence. (For an overview of the new Israeli fair use exception, see Efroni.) Despite its flexibility, fair use has been systematically eroded by ever encroaching copyrights. This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.A Brief History of CopyrightThe law of copyright extends back to eighteenth century England when the Statute of Anne (1710) was enacted. Whilst the length of this paper precludes an in depth analysis of the law and its export to the U.S., it is important to stress the goals of copyright. “Copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Vaidhyanathan 11). Copyright was designed as a right limited in scope and duration to ensure that culturally important creative works were not the victims of monopolies and were free (as later mandated in the U.S. Constitution) “to promote the progress.” During the 18th century English copyright discourse Lord Camden warned against propertarian approaches lest “all our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves, as their own hackney compilers are” (Donaldson v. Becket 17 Cobbett Parliamentary History, col. 1000). Camden’s sentiments found favour in subsequent years with members of the North American judiciary reiterating that copyright was a limited right in the interests of society—the law’s primary beneficiary (see for example, Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994]). Putting the “Fair” in Fair UseIn Folsom v. Marsh 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) Justice Storey formulated the modern shape of fair use from a wealth of case law extending back to 1740 and across the Atlantic. Over the course of one hundred years the English judiciary developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without consent. Storey’s synthesis of these principles proved so comprehensive that later English courts would look to his decision for guidance (Scott v. Stanford L.R. 3 Eq. 718, 722 (1867)). Patry explains fair use as integral to the social utility of copyright to “encourage. . . learned men to compose and write useful books” by allowing a second author to use, under certain circumstances, a portion of a prior author’s work, where the second author would himself produce a work promoting the goals of copyright (Patry 4-5).Fair use is a safety valve on copyright law to prevent oppressive monopolies, but some scholars suggest that fair use is less a defence and more a right that subordinates copyrights. Lange and Lange Anderson argue that the doctrine is not fundamentally about copyright or a system of property, but is rather concerned with the recognition of the public domain and its preservation from the ever encroaching advances of copyright (2001). Fair use should not be understood as subordinate to the exclusive rights of copyright owners. Rather, as Lange and Lange Anderson claim, the doctrine should stand in the superior position: the complete spectrum of ownership through copyright can only be determined pursuant to a consideration of what is required by fair use (Lange and Lange Anderson 19). The language of section 107 suggests that fair use is not subordinate to the bundle of rights enjoyed by copyright ownership: “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright” (Copyright Act 1976, s.107). Fair use is not merely about the marketplace for copyright works; it is concerned with what Weinreb refers to as “a community’s established practices and understandings” (1151-2). This argument boldly suggests that judicial application of fair use has consistently erred through subordinating the doctrine to copyright and considering simply the effect of the appropriation on the market place for the original work.The emphasis on economic factors has led courts to sympathise with copyright owners leading to a propertarian or Blackstonian approach to copyright (Collins; Travis) propagating the myth that any use of copyrighted materials must be licensed. Law and media reports alike are potted with examples. For example, in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004) a Sixth Circuit Court of Appeals held that the transformative use of a three-note guitar sample infringed copyrights and that musicians must obtain licence from copyright owners for every appropriated audio fragment regardless of duration or recognisability. Similarly, in 2006 Christopher Knight self-produced a one-minute television advertisement to support his campaign to be elected to the board of education for Rockingham County, North Carolina. As a fan of Star Wars, Knight used a makeshift Death Star and lightsaber in his clip, capitalising on the imagery of the Jedi Knight opposing the oppressive regime of the Empire to protect the people. According to an interview in The Register the advertisement was well received by local audiences prompting Knight to upload it to his YouTube channel. Several months later, Knight’s clip appeared on Web Junk 2.0, a cable show broadcast by VH1, a channel owned by media conglomerate Viacom. Although his permission was not sought, Knight was pleased with the exposure, after all “how often does a local school board ad wind up on VH1?” (Metz). Uploading the segment of Web Junk 2.0 featuring the advertisement to YouTube, however, led Viacom to quickly issue a take-down notice citing copyright infringement. Knight expressed his confusion at the apparent unfairness of the situation: “Viacom says that I can’t use my clip showing my commercial, claiming copy infringement? As we say in the South, that’s ass-backwards” (Metz).The current state of copyright law is, as Patry says, “depressing”:We are well past the healthy dose stage and into the serious illness stage ... things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together.The erosion of fair use by encroaching private interests represented by copyrights has led to strong critiques leveled at the judiciary and legislators by Lessig, McLeod and Vaidhyanathan. “Free culture” proponents warn that an overly strict copyright regime unbalanced by an equally prevalent fair use doctrine is dangerous to creativity, innovation, culture and democracy. After all, “few, if any, things ... are strictly original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known and used and understood by others” (Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), qted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994)). The rise of the Web 2.0 phase with its emphasis on end-user created content has led to an unrelenting wave of creativity, and much of it incorporates or “mashes up” copyright material. As Negativland observes, free appropriation is “inevitable when a population bombarded with electronic media meets the hardware [and software] that encourages them to capture it” and creatively express themselves through appropriated media forms (251). The current state of copyright and fair use is bleak, but not beyond recovery. Two recent cases suggest a resurgence of the ideology underpinning the doctrine of fair use and the role played by copyright.Let’s Go CrazyIn “Let’s Go Crazy #1” on YouTube, Holden Lenz (then eighteen months old) is caught bopping to a barely recognizable recording of Prince’s “Let’s Go Crazy” in his mother’s Pennsylvanian kitchen. The twenty-nine second long video was viewed a mere twenty-eight times by family and friends before Stephanie Lenz received an email from YouTube informing her of its compliance with a Digital Millennium Copyright Act (DMCA) take-down notice issued by Universal, copyright owners of Prince’s recording (McDonald). Lenz has since filed a counterclaim against Universal and YouTube has reinstated the video. Ironically, the media exposure surrounding Lenz’s situation has led to the video being viewed 633,560 times at the time of writing. Comments associated with the video indicate a less than reverential opinion of Prince and Universal and support the fairness of using the song. On 8 Aug. 2008 a Californian District Court denied Universal’s motion to dismiss Lenz’s counterclaim. The question at the centre of the court judgment was whether copyright owners should consider “the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court ultimately found in favour of Lenz and also reaffirmed the position of fair use in relation to copyright. Universal rested its argument on two key points. First, that copyright owners cannot be expected to consider fair use prior to issuing takedown notices because fair use is a defence, invoked after the act rather than a use authorized by the copyright owner or the law. Second, because the DMCA does not mention fair use, then there should be no requirement to consider it, or at the very least, it should not be considered until it is raised in legal defence.In rejecting both arguments the court accepted Lenz’s argument that fair use is an authorised use of copyrighted materials because the doctrine of fair use is embedded into the Copyright Act 1976. The court substantiated the point by emphasising the language of section 107. Although fair use is absent from the DMCA, the court reiterated that it is part of the Copyright Act and that “notwithstanding the provisions of sections 106 and 106A” a fair use “is not an infringement of copyright” (s.107, Copyright Act 1976). Overzealous rights holders frequently abuse the DMCA as a means to quash all use of copyrighted materials without considering fair use. This decision reaffirms that fair use “should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright design” but something that it is integral to the constitution of copyright law and essential in ensuring that copyright’s goals can be fulfilled (Leval 1100). Unlicensed musical sampling has never fared well in the courtroom. Three decades of rejection and admonishment by judges culminated in Bridgeport Music, Inc., et al v. Dimension Films et al 383 F. 3d 400 (6th Cir. 2004): “Get a license or do not sample. We do not see this stifling creativity in any significant way” was the ruling on an action brought against an unlicensed use of a three-note guitar sample under section 114, an audio piracy provision. The Bridgeport decision sounded a death knell for unlicensed sampling, ensuring that only artists with sufficient capital to pay the piper could legitimately be creative with the wealth of recorded music available. The cost of licensing samples can often outweigh the creative merit of the act itself as discussed by McLeod (86) and Beaujon (25). In August 2008 the Supreme Court of New York heard EMI v. Premise Media in which EMI sought an injunction against an unlicensed fifteen second excerpt of John Lennon’s “Imagine” featured in Expelled: No Intelligence Allowed, a controversial documentary canvassing alleged chilling of intelligent design proponents in academic circles. (The family of John Lennon and EMI had previously failed to persuade a Manhattan federal court in a similar action.) The court upheld Premise Media’s arguments for fair use and rejected the Bridgeport approach on which EMI had rested its entire complaint. Justice Lowe criticised the Bridgeport court for its failure to examine the legislative intent of section 114 suggesting that courts should look to the black letter of the law rather than blindly accept propertarian arguments. This decision is of particular importance because it establishes that fair use applies to unlicensed use of sound recordings and re-establishes de minimis use.ConclusionThis paper was partly inspired by the final entry on eminent copyright scholar William Patry’s personal copyright law blog (1 Aug. 2008). A copyright lawyer for over 25 years, Patry articulated his belief that copyright law has swung too far away from its initial objectives and that balance could never be restored. The two cases presented in this paper demonstrate that fair use – and therefore balance – can be recovered in copyright. The federal Supreme Court and lower courts have stressed that copyright was intended to promote creativity and have upheld the fair doctrine, but in order for the balance to exist in copyright law, cases must come before the courts; copyright myth must be challenged. As McLeod states, “the real-world problems occur when institutions that actually have the resources to defend themselves against unwarranted or frivolous lawsuits choose to take the safe route, thus eroding fair use”(146-7). ReferencesBeaujon, Andrew. “It’s Not the Beat, It’s the Mocean.” CMJ New Music Monthly. April 1999.Collins, Steve. “Good Copy, Bad Copy: Covers, Sampling and Copyright.” M/C Journal 8.3 (2005). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0507/02-collins.php›.———. “‘Property Talk’ and the Revival of Blackstonian Copyright.” M/C Journal 9.4 (2006). 26 Aug. 2008 ‹http://journal.media-culture.org.au/0609/5-collins.php›.Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953.Efroni, Zohar. “Israel’s Fair Use.” The Center for Internet and Society (2008). 26 Aug. 2008 ‹http://cyberlaw.stanford.edu/node/5670›.Lange, David, and Jennifer Lange Anderson. “Copyright, Fair Use and Transformative Critical Appropriation.” Conference on the Public Domain, Duke Law School. 2001. 26 Aug. 2008 ‹http://www.law.duke.edu/pd/papers/langeand.pdf›.Lemley, Mark. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031.Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001.———. Free Culture. New York: Penguin, 2004.Leval, Pierre. “Toward a Fair Use Standard.” Harvard Law Review 103 (1990): 1105.McDonald, Heather. “Holden Lenz, 18 Months, versus Prince and Universal Music Group.” About.com: Music Careers 2007. 26 Aug. 2008 ‹http://musicians.about.com/b/2007/10/27/holden-lenz-18-months-versus-prince-and-universal-music-group.htm›.McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002. 26 Aug. 2008 ‹http://www.stayfreemagazine.org/archives/20/public_enemy.html›.———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday, 2005.McLuhan, Marshall, and Barrington Nevitt. Take Today: The Executive as Dropout. Ontario: Longman Canada, 1972.Metz, Cade. “Viacom Slaps YouTuber for Behaving like Viacom.” The Register 2007. 26 Aug. 2008 ‹http://www.theregister.co.uk/2007/08/30/viacom_slaps_pol/›.Negativland, ed. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. “End of the Blog.” The Patry Copyright Blog. 1 Aug. 2008. 27 Aug. 2008 ‹http://williampatry.blogspot.com/2008/08/end-of-blog.html›.Tapscott, Don. The Digital Economy: Promise and Peril in the Age of Networked Intelligence. New York: McGraw Hill, 1996.Toffler, Alvin. The Third Wave. London, Glasgow, Sydney, Auckland. Toronto, Johannesburg: William Collins, 1980.Travis, Hannibal. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal, Vol. 15 (2000), No. 777.Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York; London: New York UP, 2003.

SUMARIO: 1.- Introducción: el permanente debate sobre los orígenes de la judicial review. 2.- La judicial review, una doctrina enmarcada en la tradición jurídica americana. Su evolución. A) El período colonial a) El Bonham’s case y su fuerte impacto sobre el pensamiento jurídico colonial. b) James Otis y el Writs of assistance Case. c) La noción de un fundamental law. B) La etapa pre-constitucional. a) La Declaración de Independencia. b) Algunos posicionamientos significativos sobre dos ideas conexas: la de un fundamental law y la de la judicial review. c) Las Constituciones estatales. d) Los tribunales estatales y los primeros casos de ejercicio por los mismos de la judicial review. C) La Convención Constitucional. Su posicionamiento ante la judicial review. D) Las Convenciones estatales de ratificación de la Constitución federal. a) Algunos posicionamientos sobre la judicial review en las Convenciones. b) La Convención de Nueva York y los Federalist Papers. La construcción dogmática de Hamilton a favor de la judicial review en el núm. 78. E) El primer Congreso y la Judiciary Act de 1789. F) La judicial review en la última década del siglo XVIII. a) El ejercicio de la facultad de revisión judicial por los Circuit Courts y por los tribunales estatales. b) La posición de la preMarshall Court ante la judicial review. 3.- La culminación del proceso: la Marbury V. Madison opinion, una decisión que va mucho más allá de la positivación de la doctrina de la judicial review.

Since the first days of the World Wide Web, artists like myself have been exploring the new possibilities of network interactivity. Some good tools and languages have been developed and made available free for the public to use. This has empowered individuals to participate in the media in ways that are quite remarkable. Nonetheless, the future of independent media is clouded by legal, regulatory, and organisational challenges that need to be addressed. It is not clear to what extent independent content producers will be able to build upon the successes of the 90s – it is yet to be seen whether their efforts will be largely nullified by the anticyclones of a hostile media market. Not so long ago, American news magazines were covering the Browser War. Several real wars later, the terms of surrender are becoming clearer. Now both of the major Internet browsers are owned by huge media corporations, and most of the states (and Reagan-appointed judges) that were demanding the break-up of Microsoft have given up. A curious about-face occurred in U.S. Justice Department policy when John Ashcroft decided to drop the federal case. Maybe Microsoft's value as a partner in covert activity appealed to Ashcroft more than free competition. Regardless, Microsoft is now turning its wrath on new competitors, people who are doing something very, very bad: sharing the products of their own labour. This practice of sharing source code and building free software infrastructure is epitomised by the continuing development of Linux. Everything in the Linux kernel is free, publicly accessible information. As a rule, the people building this "open source" operating system software believe that maintaining transparency is important. But U.S. courts are not doing much to help. In a case brought by the Motion Picture Association of America against Eric Corley, a federal district court blocked the distribution of source code that enables these systems to play DVDs. In addition to censoring Corley's journal, the court ruled that any programmer who writes a program that plays a DVD must comply with a host of license restrictions. In short, an established and popular media format (the DVD) cannot be used under open source operating systems without sacrificing the principle that software source code should remain in the public domain. Should the contents of operating systems be tightly guarded secrets, or subject to public review? If there are capable programmers willing to create good, free operating systems, should the law stand in their way? The question concerning what type of software infrastructure will dominate personal computers in the future is being answered as much by disappointing legal decisions as it is by consumer choice. Rather than ensuring the necessary conditions for innovation and cooperation, the courts permit a monopoly to continue. Rather than endorsing transparency, secrecy prevails. Rather than aiming to preserve a balance between the commercial economy and the gift-economy, sharing is being undermined by the law. Part of the mystery of the Internet for a lot of newcomers must be that it seems to disprove the old adage that you can't get something for nothing. Free games, free music, free pornography, free art. Media corporations are doing their best to change this situation. The FBI and trade groups have blitzed the American news media with alarmist reports about how children don't understand that sharing digital information is a crime. Teacher Gail Chmura, the star of one such media campaign, says of her students, "It's always been interesting that they don't see a connection between the two. They just don't get it" (Hopper). Perhaps the confusion arises because the kids do understand that digital duplication lets two people have the same thing. Theft is at best a metaphor for the copying of data, because the original is not stolen in the same sense as a material object. In the effort to liken all copying to theft, legal provisions for the fair use of intellectual property are neglected. Teachers could just as easily emphasise the importance of sharing and the development of an electronic commons that is free for all to use. The values advanced by the trade groups are not beyond question and are not historical constants. According to Donald Krueckeberg, Rutgers University Professor of Urban Planning, native Americans tied the concept of property not to ownership but to use. "One used it, one moved on, and use was shared with others" (qtd. in Batt). Perhaps it is necessary for individuals to have dominion over some private data. But who owns the land, wind, sun, and sky of the Internet – the infrastructure? Given that publicly-funded research and free software have been as important to the development of the Internet as have business and commercial software, it is not surprising that some ambiguity remains about the property status of the dataverse. For many the Internet is as much a medium for expression and the interplay of languages as it is a framework for monetary transaction. In the case involving DVD software mentioned previously, there emerged a grass-roots campaign in opposition to censorship. Dozens of philosophical programmers and computer scientists asserted the expressive and linguistic bases of software by creating variations on the algorithm needed to play DVDs. The forbidden lines of symbols were printed on T-shirts, translated into different computer languages, translated into legal rhetoric, and even embedded into DNA and pictures of MPAA president Jack Valenti (see e.g. Touretzky). These efforts were inspired by a shared conviction that important liberties were at stake. Supporting the MPAA's position would do more than protect movies from piracy. The use of the algorithm was not clearly linked to an intent to pirate movies. Many felt that outlawing the DVD algorithm, which had been experimentally developed by a Norwegian teenager, represented a suppression of gumption and ingenuity. The court's decision rejected established principles of fair use, denied the established legality of reverse engineering software to achieve compatibility, and asserted that journalists and scientists had no right to publish a bit of code if it might be misused. In a similar case in April 2000, a U.S. court of appeals found that First Amendment protections did apply to software (Junger). Noting that source code has both an expressive feature and a functional feature, this court held that First Amendment protection is not reserved only for purely expressive communication. Yet in the DVD case, the court opposed this view and enforced the inflexible demands of the Digital Millennium Copyright Act. Notwithstanding Ted Nelson's characterisation of computers as literary machines, the decision meant that the linguistic and expressive aspects of software would be subordinated to other concerns. A simple series of symbols were thereby cast under a veil of legal secrecy. Although they were easy to discover, and capable of being committed to memory or translated to other languages, fair use and other intuitive freedoms were deemed expendable. These sorts of legal obstacles are serious challenges to the continued viability of free software like Linux. The central value proposition of Linux-based operating systems – free, open source code – is threatening to commercial competitors. Some corporations are intent on stifling further development of free alternatives. Patents offer another vulnerability. The writing of free software has become a minefield of potential patent lawsuits. Corporations have repeatedly chosen to pursue patent litigation years after the alleged infringements have been incorporated into widely used free software. For example, although it was designed to avoid patent problems by an array of international experts, the image file format known as JPEG (Joint Photographic Experts Group) has recently been dogged by patent infringement charges. Despite good intentions, low-budget initiatives and ad hoc organisations are ill equipped to fight profiteering patent lawsuits. One wonders whether software innovation is directed more by lawyers or computer scientists. The present copyright and patent regimes may serve the needs of the larger corporations, but it is doubtful that they are the best means of fostering software innovation and quality. Orwell wrote in his Homage to Catalonia, There was a new rule that censored portions of the newspaper must not be left blank but filled up with other matter; as a result it was often impossible to tell when something had been cut out. The development of the Internet has a similar character: new diversions spring up to replace what might have been so that the lost potential is hardly felt. The process of retrofitting Internet software to suit ideological and commercial agendas is already well underway. For example, Microsoft has announced recently that it will discontinue support for the Java language in 2004. The problem with Java, from Microsoft's perspective, is that it provides portable programming tools that work under all operating systems, not just Windows. With Java, programmers can develop software for the large number of Windows users, while simultaneously offering software to users of other operating systems. Java is an important piece of the software infrastructure for Internet content developers. Yet, in the interest of coercing people to use only their operating systems, Microsoft is willing to undermine thousands of existing Java-language projects. Their marketing hype calls this progress. The software industry relies on sales to survive, so if it means laying waste to good products and millions of hours of work in order to sell something new, well, that's business. The consequent infrastructure instability keeps software developers, and other creative people, on a treadmill. From Progressive Load by Andy Deck, artcontext.org/progload As an Internet content producer, one does not appeal directly to the hearts and minds of the public; one appeals through the medium of software and hardware. Since most people are understandably reluctant to modify the software running on their computers, the software installed initially is a critical determinant of what is possible. Unconventional, independent, and artistic uses of the Internet are diminished when the media infrastructure is effectively established by decree. Unaccountable corporate control over infrastructure software tilts the playing field against smaller content producers who have neither the advance warning of industrial machinations, nor the employees and resources necessary to keep up with a regime of strategic, cyclical obsolescence. It seems that independent content producers must conform to the distribution technologies and content formats favoured by the entertainment and marketing sectors, or else resign themselves to occupying the margins of media activity. It is no secret that highly diversified media corporations can leverage their assets to favour their own media offerings and confound their competitors. Yet when media giants AOL and Time-Warner announced their plans to merge in 2000, the claim of CEOs Steve Case and Gerald Levin that the merged companies would "operate in the public interest" was hardly challenged by American journalists. Time-Warner has since fought to end all ownership limits in the cable industry; and Case, who formerly championed third-party access to cable broadband markets, changed his tune abruptly after the merger. Now that Case has been ousted, it is unclear whether he still favours oligopoly. According to Levin, global media will be and is fast becoming the predominant business of the 21st century ... more important than government. It's more important than educational institutions and non-profits. We're going to need to have these corporations redefined as instruments of public service, and that may be a more efficient way to deal with society's problems than bureaucratic governments. Corporate dominance is going to be forced anyhow because when you have a system that is instantly available everywhere in the world immediately, then the old-fashioned regulatory system has to give way (Levin). It doesn't require a lot of insight to understand that this "redefinition," this slight of hand, does not protect the public from abuses of power: the dissolution of the "old-fashioned regulatory system" does not serve the public interest. From Lexicon by Andy Deck, artcontext.org/lexicon) As an artist who has adopted telecommunications networks and software as his medium, it disappoints me that a mercenary vision of electronic media's future seems to be the prevailing blueprint. The giantism of media corporations, and the ongoing deregulation of media consolidation (Ahrens), underscore the critical need for independent media sources. If it were just a matter of which cola to drink, it would not be of much concern, but media corporations control content. In this hyper-mediated age, content – whether produced by artists or journalists – crucially affects what people think about and how they understand the world. Content is not impervious to the software, protocols, and chicanery that surround its delivery. It is about time that people interested in independent voices stop believing that laissez faire capitalism is building a better media infrastructure. The German writer Hans Magnus Enzensberger reminds us that the media tyrannies that affect us are social products. The media industry relies on thousands of people to make the compromises necessary to maintain its course. The rapid development of the mind industry, its rise to a key position in modern society, has profoundly changed the role of the intellectual. He finds himself confronted with new threats and new opportunities. Whether he knows it or not, whether he likes it or not, he has become the accomplice of a huge industrial complex which depends for its survival on him, as he depends on it for his own. He must try, at any cost, to use it for his own purposes, which are incompatible with the purposes of the mind machine. What it upholds he must subvert. He may play it crooked or straight, he may win or lose the game; but he would do well to remember that there is more at stake than his own fortune (Enzensberger 18). Some cultural leaders have recognised the important role that free software already plays in the infrastructure of the Internet. Among intellectuals there is undoubtedly a genuine concern about the emerging contours of corporate, global media. But more effective solidarity is needed. Interest in open source has tended to remain superficial, leading to trendy, cosmetic, and symbolic uses of terms like "open source" rather than to a deeper commitment to an open, public information infrastructure. Too much attention is focussed on what's "cool" and not enough on the road ahead. Various media specialists – designers, programmers, artists, and technical directors – make important decisions that affect the continuing development of electronic media. Many developers have failed to recognise (or care) that their decisions regarding media formats can have long reaching consequences. Web sites that use media formats which are unworkable for open source operating systems should be actively discouraged. Comparable technologies are usually available to solve compatibility problems. Going with the market flow is not really giving people what they want: it often opposes the work of thousands of activists who are trying to develop open source alternatives (see e.g. Greene). Average Internet users can contribute to a more innovative, free, open, and independent media – and being conscientious is not always difficult or unpleasant. One project worthy of support is the Internet browser Mozilla. Currently, many content developers create their Websites so that they will look good only in Microsoft's Internet Explorer. While somewhat understandable given the market dominance of Internet Explorer, this disregard for interoperability undercuts attempts to popularise standards-compliant alternatives. Mozilla, written by a loose-knit group of activists and programmers (some of whom are paid by AOL/Time-Warner), can be used as an alternative to Microsoft's browser. If more people use Mozilla, it will be harder for content providers to ignore the way their Web pages appear in standards-compliant browsers. The Mozilla browser, which is an open source initiative, can be downloaded from http://www.mozilla.org/. While there are many people working to create real and lasting alternatives to the monopolistic and technocratic dynamics that are emerging, it takes a great deal of cooperation to resist the media titans, the FCC, and the courts. Oddly enough, corporate interests sometimes overlap with those of the public. Some industrial players, such as IBM, now support open source software. For them it is mostly a business decision. Frustrated by the coercive control of Microsoft, they support efforts to develop another operating system platform. For others, including this writer, the open source movement is interesting for the potential it holds to foster a more heterogeneous and less authoritarian communications infrastructure. Many people can find common cause in this resistance to globalised uniformity and consolidated media ownership. The biggest challenge may be to get people to believe that their choices really matter, that by endorsing certain products and operating systems and not others, they can actually make a difference. But it's unlikely that this idea will flourish if artists and intellectuals don't view their own actions as consequential. There is a troubling tendency for people to see themselves as powerless in the face of the market. This paralysing habit of mind must be abandoned before the media will be free. Works Cited Ahrens, Frank. "Policy Watch." Washington Post (23 June 2002): H03. 30 March 2003 <http://www.washingtonpost.com/ac2/wp-dyn/A27015-2002Jun22?la... ...nguage=printer>. Batt, William. "How Our Towns Got That Way." 7 Oct. 1996. 31 March 2003 <http://www.esb.utexas.edu/drnrm/WhatIs/LandValue.htm>. Chester, Jeff. "Gerald Levin's Negative Legacy." Alternet.org 6 Dec. 2001. 5 March 2003 <http://www.democraticmedia.org/resources/editorials/levin.php>. Enzensberger, Hans Magnus. "The Industrialisation of the Mind." Raids and Reconstructions. London: Pluto Press, 1975. 18. Greene, Thomas C. "MS to Eradicate GPL, Hence Linux." 25 June 2002. 5 March 2003 <http://www.theregus.com/content/4/25378.php>. Hopper, D. Ian. "FBI Pushes for Cyber Ethics Education." Associated Press 10 Oct. 2000. 29 March 2003 <http://www.billingsgazette.com/computing/20001010_cethics.php>. Junger v. Daley. U.S. Court of Appeals for 6th Circuit. 00a0117p.06. 2000. 31 March 2003 <http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0... ...117p.06>. Levin, Gerald. "Millennium 2000 Special." CNN 2 Jan. 2000. Touretzky, D. S. "Gallery of CSS Descramblers." 2000. 29 March 2003 <http://www.cs.cmu.edu/~dst/DeCSS/Gallery>. Links http://artcontext.org/lexicon/ http://artcontext.org/progload http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0117p.06 http://www.billingsgazette.com/computing/20001010_cethics.html http://www.cs.cmu.edu/~dst/DeCSS/Gallery http://www.democraticmedia.org/resources/editorials/levin.html http://www.esb.utexas.edu/drnrm/WhatIs/LandValue.htm http://www.mozilla.org/ http://www.theregus.com/content/4/25378.html http://www.washingtonpost.com/ac2/wp-dyn/A27015-2002Jun22?language=printer Citation reference for this article Substitute your date of access for Dn Month Year etc... MLA Style Deck, Andy. "Treadmill Culture " M/C: A Journal of Media and Culture< http://www.media-culture.org.au/0304/04-treadmillculture.php>. APA Style Deck, A. (2003, Apr 23). Treadmill Culture . M/C: A Journal of Media and Culture, 6,< http://www.media-culture.org.au/0304/04-treadmillculture.php>

Como os juízes decidem? A resposta a essa pergunta comporta dois vieses, um seguindo a linha formalista, segundo a qual a atividade de julgar consiste, basicamente, em uma subsunção – isto é, o julgador nada mais é do que um operador de uma grande máquina de silogismo, aplicando a lei abstrata a um caso concreto, de forma mecânica; e outro que observa a linha realista, por meio da qual referida atividade depende, principalmente, de outros elementos, denominados extralegais, por serem alheios ao Direito.O presente ensaio tem como objetivo demonstrar qual movimento se aplica, na prática, ao processo decisório judicial, principalmente no âmbito do Poder Judiciário Brasileiro.Para tanto, será feita, sucintamente, uma distinção entre as linhas formalista e realista. Após, serão expostos alguns métodos e modelos criados com o escopo de esclarecer como funciona o processo de tomada de decisão, bem como será analisado, brevemente, o princípio da imparcialidade, a fim de que se chegue às considerações finais de maneira genérica.Descritores: Teoria da decisão; Decisões Judiciais; Jurisprudência; Julgamento.ReferênciasTumonis V. Legal Realism & Judicial Decision-Making. Jurisprudence. 2012;19(4):1361-82.Posner RA. How judges think. London: Harvard University Press; 2008.Frank J. Courts on trial: mith and reality in american justice. Princeton: Princeton University Press; 1973.Hutcheson Jr JC. Judgment Intuitive: The Function of the “Hunch” in Judicial Decision. 1929, p. 274-88.Richards D. When judges have a hunch – intuition and experience in judicial decision-making. ARSP. 2016;102(2):245-60.Struchiner N, Brando MS. Como os juízes decidem os casos difíceis do direito? Novas Fronteiras da Teoria do Direito: da filosofia moral à psicologia experimental. Rio de Janeiro: PoD/PUC Rio; 2013.Cestari R, Nojiri S. Intepretações históricas e teóricas do Realismo Jurídico. XXIV Encontro Nacional do CONPEDI – UFS, Teorias da Decisão e Realismo Jurídico; 2015. p. 142-66.Holmes Jr OW. Lochner v. New York, 198 U.S. 45, 76. 1905.Leiter B. Rethinking legal realism: toward a naturalized jurisprudence. Tex L Rev. 1997; 76(2):267-315.Friedman B. The politics of judicial review. Tex L Rev. 2005;84(2):257-337.Horta RL, Costa AA. Das Teorias da Interpretação à Teoria da Decisão: por uma perspectiva realista acerca das influências e constrangimentos sobre a atividade judicial. R Opin Jur. 2017;15(20):271-97.Ferreira PFAN. Como decidem os ministros do STF: pontos ideais e dimensões de preferências [dissertação]. Brasília: Universidade de Brasília; 2013.Cross FB. Decisionmaking in the U.S. Circuit Courts of Appeals. Cal L Rev. 2003;91(6):1457-515.Hughes CE. Addresses and papers of Charles Evans Hughes,Governor of New York,1906-1908. New York: GP Putnam’s Sons; 1908.Ribeiro LM, Arguelhes DW. Preferências, Estratégias e Motivações: Pressupostos institucionais de teorias sobre comportamento judicial e sua transposição para o caso brasileiro, Rev Direito e Prax. 2013;4(7):85-121.Segal JA, Spaeth HJ. The Supreme Court and the Attitudinal Model. Cambridge: Cambridge University Press; 1993.Kahneman D, Frederick S. A model of heuristic judgment. The Cambridge handbook of thinking and reasoning. Cambridge: Cambridge University Press; 2005.Stanovich KE, West RF. Individual differences in reasoning: implications for the rationality debate? Heuristics and biases: the psychology of intuitive judgment. Gilovich T, Griffin D, Kahneman D (org). New York: Cambridge University Press; 2002.Costa EJF. Levando a imparcialidade a sério: proposta de um modelo interseccional entre direito processual, economia e psicologia [tese]. São Paulo:Pontifícia Universidade Católica; 2016.Guthrie C, Rachlinski JJ, Wistrich AJ. Blinking on the bench: how judges decide cases. Cornell L Rev. 2007; 93(1):1-43.

This chapter explains Article I of the Colorado Constitution, which defines the state’s boundaries. The constitution adopted the boundaries established by Congress under the Organic Act establishing Colorado Territory in 1861, ignoring earlier proposals that used the continental divide as a boundary. The state’s east-west limits are defined by two meridians measured from Washington, D. C. The north-south boundaries are set at 37 and 41 degrees of north latitude. A resurvey of the 37^th parallel led to New Mexico’s suit to claim a significant slice of territory, but the Supreme Court rejected the revision based on the standard rule that a resurvey does not change a boundary that has been relied on.