README.md

---
language:
- en
license: apache-2.0
tags:
- sentence-transformers
- sentence-similarity
- feature-extraction
- generated_from_trainer
- dataset_size:41342
- loss:MatryoshkaLoss
- loss:MultipleNegativesRankingLoss
base_model: nomic-ai/modernbert-embed-base
widget:
- source_sentence: In the case of United States v. Algernon Blair, Inc., what was
    the primary reason that Coastal Steel Erectors, Inc. justified its termination
    of performance under the subcontract?
  sentences:
  - 'Street Name at 10-6 to 10-7.


    DTC has been estimated to hold "about three-quarters of [the] shares in publicly
    traded companies." Garvin, supra, at 315; accord Kahan & Rock, supra, at 1236;
    Street Name at 10-4 n.2. "The shares of each company held by DTC are typically
    represented by only one or more `immobilized'' jumbo stock certificates held in
    DTC''s vaults." Street Name at 10-7. "The immobilized jumbo certificates are the
    direct result of Section 17A(e) of the Exchange Act, in which Congress instructed
    the SEC to `use its authority . . . to end the physical movement of securities
    certificates. . . .''" Id. at 10-7 n.10.


    The depository system is what enables public trading of securities to take place.
    In 2014, the NYSE reported average daily volume of approximately 1 billion shares
    and approximately 4 million separate trades. See NYSE Factbook, http://www.nysedata.com/factbook
    (last visited June 19, 2015). The failure of the certificate-based system to keep
    up with much lower trading volumes in the 1960s demonstrates that it cannot meet
    current demand. Prefatory Note at 2. Without immobilization and DTC, "implementing
    a system to settle securities within five business days (T+5), much less today''s
    norm of T+3 or the current goals of T+1 or T+0, would simply be impossible." Kahan
    & Rock, supra, at 1238. Trading at current levels is only possible because of
    share immobilization and DTC. Street Name at 10-7; accord Garvin, supra, at 315-16;
    Prefatory Note at 2-3.


    Because of the federal policy of share immobilization, it is now Cede—not the
    ultimate beneficial owner and not the DTC-participant banks and brokers—that appears
    on the stock ledger of a Delaware corporation. Cede is typically the largest holder
    on the stock ledger of most publicly traded Delaware corporations. Street Name
    at 10-6. To preserve the pre-immobilization status quo—at least at the federal
    level—the SEC provided that for purposes of federal law, the custodial banks and
    brokers remain the record holders. Depositories are defined as "clearing agencies."
    15 U.S.C. § 78c(23)(A). The term "record holder" is defined as "any broker, dealer,
    voting trustee, bank, association or other entity that exercises fiduciary powers
    which holds securities of record in nominee name or otherwise or as a participant
    in a clearing agency registered pursuant to section 17A of the Act." 17 C.F.R.
    § 240.14c-1(i). The term "entity that exercises fiduciary powers" is similarly
    defined as "any entity that holds securities in nominee name or otherwise on behalf
    of a beneficial owner but does not include a clearing agency registered pursuant
    to section 17A of the Act or a broker or a dealer." Id. § 240.14c-1(c). Federal
    law thus looks through DTC when determining a corporation''s record holders. For
    example, when determining whether an issuer has 500 or more record holders of
    a class of its equity securities such that it must register under 15 U.S.C. §
    781(g), DTC does not count as a single holder of record. Each DTC participant
    member counts as a holder of record. Michael K. Molitor, Will More Sunlight Fade
    The Pink Sheets?, 39 Ind. L. Rev. 309, 315-16 (2006) (citing SEC interpretive
    releases).


    The federal regulations also ensure that a corporation can easily find out the
    identities of the banks and brokers who hold shares through DTC. Federal regulations
    require that DTC "furnish a securities position listing promptly to each issuer
    whose securities are held in the name of the clearing agency or its nominee."
    17 C.F.R. § 240.17Ad-8(b). The participant listing is known colloquially as the
    "Cede breakdown," and it identifies for a particular date the custodial banks
    and brokers that hold shares in fungible bulk as of that date along with the number
    of shares held. A Delaware corporation can obtain a Cede breakdown with ease.
    In 1981, this court noted that a Cede breakdown could be obtained in a matter
    of minutes. Hatleigh Corp.'
  - 'Brophy was not premised on either of those rationales. Rather, Brophy focused
    on the public policy of preventing unjust enrichment based on the misuse of confidential
    corporate information.[45] Just as the Brophy court relied on the seminal decision
    in Guth v. Loft,[46] we also rely on the Guth court''s rationale in this case,
    and refuse to restrict disgorgement in Brophy cases as Pfeiffer suggests.


    The rule, inveterate and uncompromising in its rigidity, does not rest upon the
    narrow ground of injury or damage to the corporation resulting from a betrayal
    of confidence, but upon a broader foundation of a wise public policy that, for
    the purpose of removing all temptation, extinguishes all possibility of profit
    flowing from a breach of the confidence imposed by the fiduciary relation.[47]


    Given Guth''s eloquent articulation of Delaware''s public policy and the fact
    that "Delaware law dictates that the scope of recovery for a breach of the duty
    of loyalty is not to be determined narrowly,"[48] we find no reasonable public
    policy ground to restrict the scope of disgorgement remedy in Brophy cases—irrespective
    of arguably parallel remedies grounded in federal securities law[ … ]


    .


     


     


     


    6.2


    Federal-based liability


     


    In additional to state-based liability, traders trading on the basis of inside
    information may also be liable under the federal securities laws. Federal insider
    trading liability carries with it potentially both civil and criminal liability.
    Like state-based liability, federal liability for insider trading is derived from
    the common law. There is no federal statute that explicitly prohibits insider
    trading. Rather, courts have interpreted Section 10b of the Securities Act of
    1934, the Act’s anti-fraud provision, as prohibiting insider trading.


     


     


     


     


    6.2.1


    Rule 10b-5


     


    § 240.10b-5 Employment of manipulative and deceptive devices.


    It shall be unlawful for any person, directly or indirectly, by the use of any
    means or instrumentality of interstate commerce, or of the mails or of any facility
    of any national securities exchange,


         (a) To employ any device, scheme, or artifice to defraud,

         (b) To make any untrue statement of a material fact or to omit to state a
    material fact necessary in order to make the statements made, in the light of
    the circumstances under which they were made, not misleading, or

         (c) To engage in any act, practice, or course of business which operates
    or would operate as a fraud or deceit upon any person,


    in connection with the purchase or sale of any security.


     


     


     


    6.2.2


    SEC v. Texas Gulf Sulphur Co.


     


    The following case, Texas Gulf Sulphur is an early federal insider trading case.
    In TGS, the court starts from the position that insiders, as fiduciaries, have
    an obligation not to use the corporation’s information for their personal benefit.
    As fiduciaries, insiders have an obligation to “disclose” the confidential inside
    information, or “abstain from trading” while in possession of the corporation’s
    material, confidential inside information. Questions arise as to what information
    is material and when is information no longer confidential such that an insider
    may freely trade on it.


     


    United States Court of Appeals for the Second Circuit


    401 F.2d 833


    No. 296, Docket 30882


    1968-08-13


    401 F.2d 833 (1968)


    SECURITIES AND EXCHANGE COMMISSION,  v. TEXAS GULF SULPHUR CO.[ … ][ … ]


    o us.


    THE FACTUAL SETTING


    This action derives from the exploratory activities of TGS begun in 1957 on the
    Canadian Shield in eastern Canada. In March of 1959, aerial geophysical surveys
    were conducted over more than 15,000 square miles of this area by a group led
    by defendant Mollison, a mining engineer and a Vice President of TGS. The group
    included defendant Holyk, TGS''s chief geologist, defendant Clayton, an electrical
    engineer and geophysicist, and defendant Darke, a geologist. These operations
    resulted in the detection of numerous anomalies, i. e., extraordinary variations
    in the conductivity of rocks, one of which was on the Kidd 55 segment of land
    located near Timmins, Ontario.


    On October 29 and 30, 1963, Clayton conducted a ground geophysical survey on the
    northeast portion of the Kidd 55 segment which confirmed the presence of an anomaly
    and indicated the necessity of diamond core drilling for further evaluation.'
  - '6.5.2


    Cases


     


     


     


     


    6.5.2.1


    United States v. Algernon Blair, Inc. (1973)


     


    United States Court of Appeals for the Fourth Circuit


    479 F.2d 638


    No. 72-2443


    1973-06-14


    479 F.2d 638 (1973)


    UNITED STATES of America, for the use of Coastal Steel Erectors, Inc., Appellant,

    v.

    ALGERNON BLAIR, INCORPORATED, and United States Fidelity and Guaranty Company,
    Appellees.


    No. 72-2443.


    United States Court of Appeals, Fourth Circuit.


    Argued May 9, 1973.


    Decided June 14, 1973.


    [ … ]


    CRAVEN, Circuit Judge:


    May a subcontractor, who justifiably ceases work under a contract because of the
    prime contractor''s breach, recover in quantum meruit the value of labor and equipment
    already furnished pursuant to the contract irrespective of whether he would have
    been entitled to recover in a suit on the contract? We think so, and, for reasons
    to be stated, the decision of the district court will be reversed.


    The subcontractor, Coastal Steel Erectors, Inc., brought this action under the
    provisions of the Miller Act, 40 U.S.C.A. § 270a et seq., in the name of the United
    States against Algernon Blair, Inc., and its surety, United States Fidelity and
    Guaranty Company. Blair had entered a contract with the United States for the
    construction of a naval hospital in Charleston County, South Carolina. Blair had
    then contracted with Coastal to perform certain steel erection and supply certain
    equipment in conjunction with Blair''s contract with the United States. Coastal
    commenced performance of its obligations, supplying its own cranes for handling
    and placing steel. Blair refused to pay for crane rental, maintaining that it
    was not obligated to do so under the subcontract. Because of Blair''s failure
    to make payments for crane rental, and after completion of approximately 28 percent
    of the subcontract, Coastal terminated its performance. Blair then proceeded to
    complete the job with a new subcontractor. Coastal brought this action to recover
    for labor and equipment furnished.


    The district court found that the subcontract required Blair to pay for crane
    use and that Blair''s refusal to do so was such a material breach as to justify
    Coastal''s terminating performance. This finding is not questioned on appeal.
    The court then found that under the contract the amount due Coastal, less what
    had already been paid, totaled approximately $37,000. Additionally, the court
    found Coastal would have lost more than $37,000 if it had completed performance.
    Holding that any amount due Coastal must be reduced by any loss it would have
    incurred by complete performance of the contract, the court denied recovery to
    Coastal. While the district court correctly stated the "`normal'' rule of contract
    damages,"[1] we think Coastal is entitled to recover in quantum meruit.[2]


    [ … ]


    that the complaint is not clear in regard to the theory of a plaintiff''s recovery
    does not preclude recovery under quantum meruit. [ … ] A plaintiff may join a
    claim for quantum meruit with a claim for damages from breach of contract.[5]


    In the present case, Coastal has, at its own expense, provided Blair with labor
    and the use of equipment. Blair, who breached the subcontract, has retained these
    benefits without having fully paid for them. On these facts, Coastal is entitled
    to restitution in quantum meruit.


    [ … ]


    The impact of quantum meruit is to allow a promisee to recover the value of services
    he gave to the defendant irrespective of whether he would have lost money on the
    contract and been unable to recover in a suit on the contract. [ … ] The measure
    of recovery for quantum meruit is the reasonable value of the performance, Restatement
    of Contracts § 347 (1932); and recovery is undiminished by any loss which would
    have been incurred by complete performance. 12 Williston on Contracts § 1485,
    at 312 (3d ed. 1970). While the contract price may be evidence of reasonable value
    of the services, it does not measure the value of the performance or limit recovery.[7]
    Rather, the standard for measuring the reasonable value of the services rendered
    is the amount for which such services could have been purchased from one in the
    plaintiff''s position at the time and place the services were rendered.[8]


    Since the district court has not yet accurately determined the reasonable value
    of the labor and equipment use furnished by Coastal to Blair, the case must be
    remanded for those findings.'
- source_sentence: What were the main legal arguments presented by the plaintiffs
    challenging Proposition 200's identification requirements in Arizona, and what
    was the District Court's initial response to their request for a preliminary injunction?
  sentences:
  - 'Code Crim. P. Ann., art. 38.41.


    Committee Notes on Rules—2014 Amendment


    Changes Made After Publication and Comment. No changes were made after publication
    and comment.


    Amendment by Public Law


    1975 —Exception (23). Pub. L. 94–149 inserted a comma immediately after “family”
    in catchline.


     


    The Rule has been amended to clarify that if the proponent has established the
    stated requirements of the exception--regular business with regularly kept record,
    source with personal knowledge, record made timely, and foundation testimony or
    certification--then the burden is on the opponent to show that the source of information
    or the method or circumstances of preparation indicate a lack of trustworthiness.
    While most courts have imposed that burden on the opponent, some have not. It
    is appropriate to impose this burden on opponent, as the basic admissibility requirements
    are sufficient to establish a presumption that the record is reliable.


    The opponent, in meeting its burden, is not necessarily required to introduce
    affirmative evidence of untrustworthiness. For example, the opponent might argue
    that a record was prepared in anticipation of litigation and is favorable to the
    preparing party without needing to introduce evidence on the point. A determination
    of untrustworthiness necessarily depends on the circumstances.


    Changes Made After Publication and Comment


    In accordance with a public comment, a slight change was made to the Committee
    Note to better track the language of the rule.


    The Rule has been amended to clarify that if the proponent has established the
    stated requirements of the exception--set forth in Rule 803(6)--then the burden
    is on the opponent to show that the possible source of the information or other
    circumstances indicate a lack of trustworthiness. The amendment maintains consistency
    with the proposed amendment to the trustworthiness clause of Rule 803(6).


    Changes Made After Publication and Comment


    In accordance with a public comment, a slight change was made to the Committee
    Note to better track the language of the rule.


    The Rule has been amended to clarify that if the proponent has established that
    the record meets the stated requirements of the exception--prepared by a public
    office and setting out information as specified in the Rule--then the burden is
    on the opponent to show that the source of information or other circumstances
    indicate a lack of trustworthiness. While most courts have imposed that burden
    on the opponent, some have not. Public records have justifiably carried a presumption
    of reliability, and it should be up to the opponent to “demonstrate why a time-tested
    and carefully considered presumption is not appropriate.” Ellis v. International
    Playtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984). The amendment maintains consistency
    with the proposed amendment to the trustworthiness clause of Rule 803(6).


    The opponent, in meeting its burden, is not necessarily required to introduce
    affirmative evidence of untrustworthiness. For example, the opponent might argue
    that a record was prepared in anticipation of litigation and is favorable to the
    preparing party without needing to introduce evidence on the point. A determination
    of untrustworthiness necessarily depends on the circumstances.


    Changes Made After Publication and Comment


    In accordance with a public comment, a slight change was made to the Committee
    Note to better track the language of the rule.


    Committee Notes on Rules—2017 Amendment


    The ancient documents exception to the rule against hearsay has been limited to
    statements in documents prepared before January 1, 1998. The Committee has determined
    that the ancient documents exception should be limited due to the risk that it
    will be used as a vehicle to admit vast amounts of unreliable electronically stored
    information (ESI). Given the exponential development and growth of electronic
    information since 1998, the hearsay exception for ancient documents has now become
    a possible open door for large amounts of unreliable ESI, as no showing of reliability
    needs to be made to qualify under the exception. 


    The Committee is aware that in certain cases—such as cases involving latent diseases
    and environmental damage—parties must rely on hardcopy documents from the past.
    The ancient documents exception remains available for such cases for documents
    prepared before 1998. Going forward, it is anticipated that any need to admit
    old hardcopy documents produced after January 1, 1998 will decrease, because reliable
    ESI is likely to be available and can be offered under a reliability-based hearsay
    exception. Rule 803(6) may be used for many of these ESI documents, especially
    given its flexible standards on which witnesses might be qualified to provide
    an adequate foundation. And Rule 807 can be used to admit old documents upon a
    showing of reliability—which will often (though not always) be found by circumstances
    such as that document was prepared with no litigation motive in mind, close in
    time to the relevant events.'
  - 'The owner, from the nature and necessity of the case, takes the benefit of part
    performance, and therefore by merely so doing does not necessarily waive anything
    contained in the contract. To impute to him a voluntary waiver of conditions precedent
    from the mere use and occupation of the building erected, unattended by other
    circumstances, is unreasonable and illogical because he is not in a situation
    to elect whether he will or will [189] not accept the benefit of an imperfect
    performance. To be enabled to stand upon the contract he cannot reasonably be
    required to tear down and destroy the edifice if he prefers it to remain. As the
    erection is his by annexation to the soil he may suffer it to stand, and there
    is no rule of law against his using it without prejudice to his rights.


    The present case was evidently tried upon an erroneous theory of the law. Although
    partial payments were to be made as the work proceeded under the contracts, yet
    the consideration and condition of those payments was the performance of the work
    according to the plans and specifications, and in the best and most workmanlike
    manner, and the final payments were not to be made until after all the work was
    completed and certified by the architects. Although the contracts were not performed,
    the plaintiff has recovered all the installments, less the sum which the referee
    allowed as damages for the non-performance. In receiving the evidence as to the
    value and strength of the buildings, nothwithstanding non-performance of the contracts,
    evidence which could have no bearing except upon the question of damages, it is
    manifest that he proceeded upon views on the law in such cases which I have endeavored
    to show are unsound.


    It is not necessary to give any opinion upon the question whether the referee
    might properly find upon the evidence that the defendant waived the conditions
    of the contract by any express approval of the work, or by any other interference
    or conduct on his part. We only say that, according to the settled law in this
    state, the plaintiff cannot recover the payments which by the terms or true construction
    of the contract are due only on condition of performance by him, unless he can
    show such performance or prove that it has been waived.[1] And the law does not
    adjudge that a mere silent occupation of the building by the owner amounts to
    a waiver, nor does it deny to him the right so to occupy and still insist upon
    the contract. The question of waiver of the condition [190] precedent will always
    be one of intention to be arrived at from all the circumstances, including the
    occupancy.


    To conclude, there is, in a just view of the question, no hardship in requiring
    builders, like all other men, to perform their contracts in order to entitle themselves
    to payment, where the employer has agreed to pay only on that condition. It is
    true that such contracts embrace a variety of particulars, and that slight omissions
    and inadvertences may sometimes very innocently occur. These should be indulgently
    regarded, and they will be so regarded by courts and juries. But there can be
    no injustice in imputing to the contractor a knowledge of what his contract requires,
    nor in holding him to a substantial performance. If he has stipulated for walls
    of a given material and with a hard inside finish, he knows what he is to do and
    must perform it. If he has engaged for a given number and size of windows, joists,
    beams and sills, he cannot, with the specifications before him, innocently, depart
    from his contract. If he fails to perform when the requirement is plain, and when
    he can perform if he will, he has no right to call upon the courts to make a new
    contract for him; nor ought he to complain if the law leaves him without remedy.[1]


    The judgment should be reversed and a new trial granted.


    All the judges concurred in this opinion.


    Judgment reversed and new trial ordered.


    ----------


    [1] Morrell v. Irving F. Ins. Co., 33 N.Y. 447: Mason v. Hey ward, 3 Minn. 188;
    Mehurin v. Stone, 37 Ohio, 56.


    [2] Zottman v. San Francisco, 20 Cal. 108; Mapes v. Comm''rs of Olmstead Co.,
    11 Minn. 371; Belt v. Stetson, 26 Minn. 415; Bozarth v. Dudley, 44 N.J. 309; Cincinnati
    v. Cameron, 33 Ohio, 374.


    ----------


    [1] Cited in Cunningham v. Jones, 20 N.Y. 487; Bonesteel v. Mayor, etc., of N.Y.
    22 N.Y. 166; Catlin v. Tobias, 26 N.Y. 222; Glacius v. Black, 50 N.Y.'
  - '§ 1973c. See *3Georgia v. Ashcroft, 539 U. S. 461, 461-462 (2003). On May 6,
    2005, the United States Attorney General precleared the procedures Arizona adopted
    under Proposition 200.


    In the District Court the plaintiffs in this action are residents of Arizona,
    Indian tribes, and various community organizations. In May 2006, these plaintiffs
    brought suit challenging Proposition 200’s identification requirements. On September
    11, 2006, the District Court denied their request for a preliminary injunction,
    but it did not at that time issue findings of fact or conclusions of law. These
    findings were important because resolution of legal questions in the Court of
    Appeals required evaluation of underlying factual issues.


    The plaintiffs appealed the denial, and the Clerk of the Court of Appeals set
    a briefing schedule that concluded on November 21, two weeks after the upcoming
    November 7 election. The plaintiffs then requested an injunction pending appeal
    from the Court of Appeals. Pursuant to the Court of Appeals’ rules, the request
    for an injunction was assigned to a two-judge motions/sereening panel. See Rule
    3-3 (CA9 2002). On October 5, after receiving lengthy written responses from the
    State and the county officials but without oral argument, the panel issued a four-sentence
    order enjoining Arizona from enforcing Proposition 200’s provisions pending disposition,
    after full briefing, of the appeals of the denial of a preliminary injunction.
    The Court of Appeals offered no explanation or justification for its order. Four
    days later, the court denied a motion for reconsideration. The order denying the
    motion likewise gave no rationale for the court’s decision.


    Despite the time-sensitive nature of the proceedings and the pendency of a request
    for emergency relief in the Court of Appeals, the District Court did not issue
    its findings of fact and conclusions of law until October 12. It then concluded
    that “plaintiffs have shown a possibility of success on the merits of some of
    their arguments but the Court cannot say that at this stage they have shown a
    strong likelihood.” *4Order in No. CV 06-1268-PHX-ROS etc. (D. Ariz., Oct. 11,
    2006), pp. 7-8, App. to Application for Stay of Injunction[ … ]. The District
    Court then found the balance of the harms and the public interest counseled in
    favor of denying the injunction.


    II


    “A State indisputably has a compelling interest in preserving the integrity of
    its election process.” Eu v. San Francisco County Democratic Central Comm., 489
    U. S. 214, 231 (1989). Confidence in the integrity of our electoral processes
    is essential to the functioning of our participatory democracy. Voter fraud drives
    honest citizens out of the democratic process and breeds distrust of our government.
    Voters who fear their legitimate votes will be outweighed by fraudulent ones will
    feel disenfranchised. “[T]he right of suffrage can be denied by a debasement or
    dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting
    the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964).
    Countering the State’s compelling interest in preventing voter fraud is the plaintiffs’
    strong interest in exercising the “fundamental political right” to vote. Dunn
    v. Blumstein, 405 U. S. 330, 336 (1972) (internal quotation marks omitted). Although
    the likely effects of Proposition 200 are much debated, the possibility that qualified
    voters might be turned away from the polls would caution any district judge to
    give careful consideration to the plaintiffs’ challenges.


    Faced with an application to enjoin operation of voter identification procedures
    just weeks before an election, the Court of Appeals was required to weigh, in
    addition to the harms attendant upon issuance or nonissuance of an injunction,
    considerations specific to election cases and its own institutional procedures.
    Court orders affecting elections, especially conflicting orders, can themselves
    result in voter *5confusion and consequent incentive to remain away from the polls.
    As an election draws closer, that risk will increase. So the Court of Appeals
    may have deemed this consideration to be grounds for prompt action. Furthermore,
    it might have given some weight to the possibility that the nonprevailing parties
    would want to seek en banc review. In the Ninth Circuit that procedure, involving
    voting by all active judges and an en banc hearing by a court of 15, can consume
    further valuable time. These considerations, however, cannot be controlling here.
    It was still necessary, as a procedural matter, for the Court of Appeals to give
    deference to the discretion of the District Court.'
- source_sentence: What are the potential sanctions a court may impose on a party
    that fails to disclose information or identify a witness as required by Rule 26(a)
    or (e)?
  sentences:
  - 'Although Article III expressly contemplated jurisdiction over suits between States
    and individuals, nothing in the Article or in any other part of the Constitution
    suggested the States could not assert immunity from private suit in their own
    courts or that Congress had the power to abrogate sovereign immunity there. .
    . .


    2


    [25] Our historical analysis is supported by early congressional practice, which
    provides "contemporaneous and weighty evidence of the Constitution''s meaning." Printz.
    [E]arly Congresses did not believe they had the power to authorize private suits
    against the States in their own courts. . . .


    3


    [26] The theory and reasoning of our earlier cases suggest the States do retain
    a constitutional immunity from suit in their own courts. We have often described
    the States'' immunity in sweeping terms, without reference to whether the suit
    was prosecuted in state or federal court. [citations omitted]  . . . .As it is
    settled doctrine that neither substantive federal law nor attempted congressional
    abrogation under Article I bars a State from raising a constitutional defense
    of sovereign immunity in federal court, our decisions suggesting that the States
    retain an analogous constitutional immunity from private suits in their own courts
    support the conclusion that Congress lacks the Article I power to subject the
    States to private suits in those fora.


    4


    [27] Our final consideration is whether a congressional power to subject nonconsenting
    States to private suits in their own courts is consistent with the structure of
    the Constitution. We look both to the essential principles of federalism and to
    the special role of the state courts in the constitutional design.


    [28] Although the Constitution grants broad powers to Congress, our federalism
    requires that Congress treat the States in a manner consistent with their status
    as residuary sovereigns and joint participants in the governance of the Nation.
    . . .


    [29] Petitioners contend that immunity from suit in federal court suffices to
    preserve the dignity of the States. Private suits against nonconsenting States,
    however, present "the indignity of subjecting a State to the coercive process
    of judicial tribunals at the instance of private parties," regardless of the forum.
    Not only must a State defend or default but also it must face the prospect of
    being thrust, by federal fiat and against its will, into the disfavored status
    of a debtor, subject to the power of private citizens to levy on its treasury
    or perhaps even government buildings or property which the State administers on
    the public''s behalf.


    [30] In some ways, of course, a congressional power to authorize private suits
    against nonconsenting States in their own courts would be even more offensive
    to state sovereignty than a power to authorize the suits in a federal forum. Although
    the immunity of one sovereign in the courts of another has often depended in part
    on comity or agreement, the immunity of a sovereign in its own courts has always
    been understood to be within the sole control of the sovereign itself. A power
    to press a State''s own courts into federal service to coerce the other branches
    of the State, furthermore, is the power first to turn the State against itself
    and ultimately to commandeer the entire political machinery of the State against
    its will and at the behest of individuals. . . .


    [31] It is unquestioned that the Federal Government retains its own immunity from
    suit not only in state tribunals but also in its own courts. In light of our constitutional
    system recognizing the essential sovereignty of the States, we are reluctant to
    conclude that the States are not entitled to a reciprocal privilege.


    [32] Underlying constitutional form are considerations of great substance. Private
    suits against nonconsenting States—especially suits for money damages—may threaten
    the financial integrity of the States. . . .  


    [33] A general federal power to authorize private suits for money damages would
    place unwarranted strain on the States'' ability to govern in accordance with
    the will of their citizens. Today, as at the time of the founding, the allocation
    of scarce resources among competing needs and interests lies at the heart of the
    political process. While the judgment creditor of a State may have a legitimate
    claim for compensation, other important needs and worthwhile ends compete for
    access to the public fisc. Since all cannot be satisfied in full, it is inevitable
    that difficult decisions involving the most sensitive and political of judgments
    must be made. If the principle of representative government is to be preserved
    to the States, the balance between competing interests must be reached after deliberation
    by the political process established by the citizens of the State, not by judicial
    decree mandated by the Federal Government and invoked by the private citizen.
    . . . When the Federal Government asserts authority over a State''s most fundamental
    political processes, it strikes at the heart of the political accountability so
    essential to our liberty and republican form of government. . . .'
  - '(C) Payment of Expenses. Instead of or in addition to the orders above, the court
    must order the disobedient party, the attorney advising that party, or both to
    pay the reasonable expenses, including attorney’s fees, caused by the failure,
    unless the failure was substantially justified or other circumstances make an
    award of expenses unjust.


    (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.


    (1) Failure to Disclose or Supplement. If a party fails to provide information
    or identify a witness as required by Rule 26(a) or (e), the party is not allowed
    to use that information or witness to supply evidence on a motion, at a hearing,
    or at a trial, unless the failure was substantially justified or is harmless.
    In addition to or instead of this sanction, the court, on motion and after giving
    an opportunity to be heard:


    (A) may order payment of the reasonable expenses, including attorney’s fees, caused
    by the failure;


    (B) may inform the jury of the party’s failure; and


    (C) may impose other appropriate sanctions, including any of the orders listed
    in Rule 37(b)(2)(A)(i)–(vi).


    (2) Failure to Admit. If a party fails to admit what is requested under Rule 36
    and if the requesting party later proves a document to be genuine or the matter
    true, the requesting party may move that the party who failed to admit pay the
    reasonable expenses, including attorney’s fees, incurred in making that proof.
    The court must so order unless:


    (A) the request was held objectionable under Rule 36(a);


    (B) the admission sought was of no substantial importance;


    (C) the party failing to admit had a reasonable ground to believe that it might
    prevail on the matter; or


    (D) there was other good reason for the failure to admit.


    (d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories,
    or Respond to a Request for Inspection.


    (1) In General.


    (A) Motion; Grounds for Sanctions. The court where the action is pending may,
    on motion, order sanctions if:


    (i) a party or a party’s officer, director, or managing agent—or a person designated
    under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice,
    to appear for that person’s deposition; or


    (ii) a party, after being properly served with interrogatories under Rule 33 or
    a request for inspection under Rule 34, fails to serve its answers, objections,
    or written response.


    (B) Certification. A motion for sanctions for failing to answer or respond must
    include a certification that the movant has in good faith conferred or attempted
    to confer with the party failing to act in an effort to obtain the answer or response
    without court action.


    (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A)
    is not excused on the ground that the discovery sought was objectionable, unless
    the party failing to act has a pending motion for a protective order under Rule
    26(c).


    (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule
    37(b)(2)(A)(i)–(vi). Instead of or in addition to these sanctions, the court must
    require the party failing to act, the attorney advising that party, or both to
    pay the reasonable expenses, including attorney’s fees, caused by the failure,
    unless the failure was substantially justified or other circumstances make an
    award of expenses unjust.


    (e) Failure to Preserve Electronically Stored Information. If electronically stored
    information that should have been preserved in the anticipation or conduct of
    litigation is lost because a party failed to take reasonable steps to preserve
    it, and it cannot be restored or replaced through additional discovery, the court:


    (1) upon finding prejudice to another party from loss of the information, may
    order measures no greater than necessary to cure the prejudice; or


    (2) only upon finding that the party acted with the intent to deprive another
    party of the information’s use in the litigation may:


    (A) presume that the lost information was unfavorable to the party;


    (B) instruct the jury that it may or must presume the information was unfavorable
    to the party; or


    (C) dismiss the action or enter a default judgment.


    (f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney
    fails to participate in good faith in developing and submitting a proposed discovery
    plan as required by Rule 26(f), the court may, after giving an opportunity to
    be heard, require that party or attorney to pay to any other party the reasonable
    expenses, including attorney’s fees, caused by the failure.'
  - 'Could the court have followed the majority rule and still afforded the optionee
    relief? See Note, 63 Calif. L. Rev. 11, 126 (1965) and Sy Jack Realty Co. v. Pergament
    Syosset Corp., 27 N.Y.2d 449, 318 N. Y.S.2d 720, 267 N.E.2d 462 (1971).


    3. In the principal case, the optionee''s letter, though sent on time, was never
    received by the optionor. The general rule with respect to acceptances is that
    they are effective on dispatch even though they are lost or delayed in the course
    of transit. The leading case announcing this rule is Household Fire & Carriage
    Acc. Ins. Co. v. Grant, 4 Ex. D. 216 (1879). See also Restatement Second §56 and
    §63 Comment b; 37 Mich. L. Rev. 655 (1939). Do you agree with the rule?


     


     


     


    4.9.11


    C. Langdell, Summary of the Law of Contracts 20-21 (2d ed. 1880)


     


    C. LANGDELL, SUMMARY OF THE LAW OF CONTRACTS 20-21 (2d ed. 1880): "It has been
    claimed that the purposes of substantial justice, and the interests of contracting
    parties as understood by themselves, will be best served by holding that the contract
    is complete the moment the letter of acceptance is mailed; and cases have been
    put to show that the contrary view would produce not only unjust but absurd results.
    The true answer to this argument is, that it is irrelevant; but, assuming it to
    be relevant, it may be turned against those who use it without losing any of its
    strength. The only cases of real hardship are where there is a miscarriage of
    the letter of acceptance, and in those cases a hardship to one of the parties
    is inevitable. Adopting one view, the hardship consists in making one liable on
    a contract which he is ignorant of having made; adopting the other view, it consists
    of depriving one of the benefit of a contract which he supposes he has made. Between
    these two evils the choice would seem to be clear: the former is positive, the
    latter merely negative; the former imposes a liability to which no limit can be
    placed, the latter leaves everything in statu quo. As to making provision for
    the contingency of the miscarriage of a letter, this is easy for the person who
    sends it, while it is practically impossible for the person to whom it is sent."


     


     


     


    4.9.12


    Llewellyn, Our Case-Law of Contract: Offer and Acceptance


     


    LLEWELLYN, OUR CASE-LAW OF CONTRACT: OFFER AND ACCEPTANCE (pt. 2), 48 Yale L.J.
    779, 795 (1939): "As between hardship on the offeror which is really tough, and
    hardship on the offeree which would be even tougher,[130] the vital reason for
    throwing the hardship of an odd delayed or lost letter upon the offeror remains
    this: the offeree is already relying, with the best reason in the world, on the
    deal being on; the offeror is only holding things open; and, in view of the efficiency
    of communication facilities, we can protect the offeree in all these deals at
    the price of hardship on offerors in very few of them."


    [130] For regarding the hardship of an opposing rule as even tougher on the offeree
    there are two good reasons. In the first place, the ingrained usage of business
    is to answer letters which look toward deals, but the usage is not so clear about
    acknowledging letters which close deals. The absence of an answer to a letter
    of offer is much more certain to lead to inquiry than is the absence of an answer
    to a letter of acceptance, so that the party bitten by the mischance has under
    our rule a greater likelihood of being aware of uncertainty and of speedily discovering
    his difficulty. This goes to the hazards of communication. In the second place,
    and regarding the time of closing, the risk of the market shifting against the
    offeror, unbalanced by the chance of gain if it shifts in his favor, rests under
    our law on the offeror during one transmission period plus time for answer — subject
    to effective telegraphic or telephone communication. He wants the deal; he takes
    that risk. But to fail to close the deal as against the offeree until the letter
    of agreement arrives is to extend that unbalanced risk of the market without observable
    reason.'
- source_sentence: Discuss the significance of the fourth fair-use factor in the context
    of Koons's use of "Silk Sandals." How does the court's conclusion reflect the
    balance between copyright law and the promotion of artistic expression?
  sentences:
  - "Any high-speed pursuit is inherently dangerous to the lives of the pursuing police\
    \ officers. In even the most ethereal of abstractions, it is not possible to imagine\
    \ that the ‘wanton disregard’ of the person fleeing does not encompass disregard\
    \ for the safety of the pursuing officers.” [ … ]Unlike the majority, I find the\
    \ Court of Appeal’s statement in Johnson persuasive.\n\nIndeed, I agree with Justice\
    \ Baxter that if any offense should easily qualify as inherently dangerous, Vehicle\
    \ Code section 2800.2 certainly would.[ … ]\n\n I would abrogate the nonstatutory\
    \ second degree felony-murder rule and leave it to the Legislature to define precisely\
    \ what conduct subjects a defendant to strict criminal liability.\n\nBAXTER, J.,\
    \ Dissenting.\n\n[ … ]\n\nThe majority focus upon subdivision (b) of section 2800.2,\
    \ which was added in 1996. [ … ] The majority reasons that, because some statutory\
    \ “points” violations are not inherently dangerous, one can commit the unitary\
    \ felony described in both subdivisions of section 2800.2 in a way that does not\
    \ place human life at risk.\n\nI am not persuaded. Subdivision (a) of section\
    \ 2800.2 gives clear and specific notice that one who, in order to elude police\
    \ pursuit, drives with reckless indifference to safety is guilty of a felony.\
    \ Such reckless driving is, of course, inherently dangerous—by definition, it\
    \ creates a substantial risk that someone will be killed. Moreover, there is no\
    \ doubt that defendant committed exactly the reckless endangerment of human life\
    \ forbidden by the statute. [ … ]\n\n[ … ]\n\n[Here] principal reason for applying\
    \ the felony-murder rule is present. The purpose of the felony-murder doctrine\
    \ “is to deter those engaged in felonies from killing negligently or accidentally.”\
    \ (Hansen, supra, 9 Cal.4th 300, 308, quoting People v. Satchell (1971) 6 Cal.3d\
    \ 28, 43 [ … ].) Because the doctrine absolves the prosecution from proving malice,\
    \ it properly applies when “the killer is engaged in a felony whose inherent danger\
    \ to human life renders logical an imputation of malice on the part of all who\
    \ commit it.” (Ibid.)\n\nThose requirements are met here. It is appropriate to\
    \ deter persons from killing negligently or accidentally—as did defendant—while\
    \ engaged—as was defendant—in recklessly unsafe driving to elude police pursuit,\
    \ a specific form of conduct made felonious by section 2800.2, subdivision (a).\
    \ Moreover, the inherent danger such conduct poses to human life is so clear that\
    \ it is logical to impute malice to anyone who commits it.\n\nUnder such circumstances,\
    \ it perverts reason to refuse to apply the felony-murder rule simply because\
    \ subdivision (b) of section 2800.2 may additionally describe a nondangerous felony.\
    \ Where society has warned, in plain statutory words, that the particular conduct\
    \ committed by the defendant *1144is both dangerous and felonious, it should not\
    \ matter that the statute may forbid non-dangerous conduct as well.\n\nIt is worth\
    \ noting that, although the Legislature elected to include subdivision (b) as\
    \ part of section 2800.2, it could just as easily have added a separate section,\
    \ establishing a distinct felonious offense of committing three “points” violations\
    \ while driving to elude a peace officer. This would equally have satisfied the\
    \ apparent legislative purpose to deter flight from the police by expanding the\
    \ circumstances under which driving to elude a pursuing police officer would constitute\
    \ a felony. [ … ] \n\n[ … ] If subdivision (a) described an inherently dangerous\
    \ felony before the addition of subdivision (b) in 1996 [ … ], the unchanged words\
    \ of that subdivision equally do so following the 1996 amendment [ … ].\n\n[ …\
    \ ]\n\n \n\n \n\n \n\n9.5.2.8\n\nNotes & Questions (People v. Howard)\n\n \n\n\
    Notes and Questions\n\n1.    Understanding Felony Murder. How would you summarize\
    \ the rule statement from Howard if you were writing it in a brief (or on an exam)?\
    \ Explain, in your own works, why the court finds Mr. Howard not guilty.\n\n2.\
    \    Deep Thinking. In the case, we learn that Mr. Howard was driving a car that\
    \ he stole, earlier that day. Why isn’t that more serious crime the subject of\
    \ his felony murder prosecution? How would you change the facts of the case so\
    \ that the car theft could serve as the target crime for Mr. Howard’s felony murder\
    \ prosecution? \n\n3.    A Dubious Doctrine."
  - "On 22 December 1985, defendant John Forrest admitted his critically ill father,\
    \ Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had\
    \ previously been hospitalized, was suffering from numerous serious ailments,\
    \ including severe heart disease, hypertension, a thoracic aneurysm, numerous\
    \ pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his\
    \ medical condition was determined to be unbeatable and terminal. Accordingly,\
    \ he was classified as “No Code,” meaning that no extraordinary measures would\
    \ be used to save his life, and he was moved to a more comfortable room.\n\nOn\
    \ 24 December 1985, defendant went to the hospital to visit his ailing father.\
    \ No other family members were present in his father’s room when he arrived. While\
    \ one of the nurse’s assistants was tending to his father, defendant told her,\
    \ “There is no need in doing that. He’s dying.” She responded, “Well, I think\
    \ he’s better.” The nurse’s assistant noticed that defendant was sniffing as though\
    \ crying and that he kept his hand in his pocket during their conversation. She\
    \ subsequently went to get the nurse.\n\nWhen the nurse’s assistant returned with\
    \ the nurse, defendant once again stated his belief that his father was dying.\
    \ The nurse tried to comfort defendant, telling him, “I don’t think your father\
    \ is as sick as you think he is.” Defendant, very upset, responded, “Go to hell.\
    \ I’ve been taking care of him for years. I’ll take care of him.” Defendant was\
    \ then left alone in the room with his father.\n\nAlone at his father’s bedside,\
    \ defendant began to cry and to tell his father how much he loved him. His father\
    \ began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant\
    \ pulled a small pistol from his pants pocket, put it to his father’s temple,\
    \ and fired. He subsequently fired three more times and walked out into the hospital\
    \ corridor, dropping the gun to the floor just outside his father’s room.\n\n\
    Following the shooting, defendant, who was crying and upset, neither ran nor threatened\
    \ anyone. Moreover, he never denied shooting his father and talked openly with\
    \ law enforcement officials. Specifically, defendant made the following oral statements:\
    \ “You can’t do anything to him now. He’s out of his suffering.” “I killed my\
    \ daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it,\
    \ but my dad will not have to suffer anymore.” “I know the doctors couldn’t do\
    \ it, but I could.” “I promised my dad I wouldn’t let him suffer.”\n\n[ … ]Though\
    \ defendant’s father had been near death as a result of his medical condition,\
    \ the exact cause of the deceased’s death was determined to be the four point-blank\
    \ bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre\
    \ five-shot revolver. The weapon, which had to be cocked each time it was fired,\
    \ contained four empty shells and one live round.\n\nAt the close of the evidence,\
    \ defendant’s case was submitted to the jury for one of four possible verdicts:\
    \ first-degree murder, second-degree murder, voluntary manslaughter, or not guilty.\
    \ After a lengthy deliberation, the jury found defendant guilty of first-degree\
    \ murder. [ … ]\n\n[ … ]\n\n In his second assignment of error, defendant asserts\
    \ that the trial court committed reversible error in denying his motion for directed\
    \ verdict as to the first-degree murder charge. Specifically, defendant argues\
    \ that the trial court’s submission of the first-degree murder charge was improper\
    \ because there was insufficient evidence of premeditation and deliberation presented\
    \ at trial. We do not agree[ … ].\n\nWe recently addressed this very issue in\
    \ the case of State v. Jackson, 317 N.C. 1[ … ]. Our analysis of the relevant\
    \ law in that case is instructive in the case at bar:\n\nBefore the issue of a\
    \ defendant’s guilt may be submitted to the jury, the trial court must be satisfied\
    \ that substantial evidence has been introduced tending to prove each essential\
    \ element of the offense charged [ … ].\n\nFirst-degree murder is the intentional\
    \ and unlawful killing of a human being with malice and with premeditation and\
    \ deliberation. [ … ]\n\nPremeditation and deliberation relate to mental processes\
    \ and ordinarily are not readily susceptible to proof by direct evidence. Instead,\
    \ they usually must be proved by circumstantial evidence."
  - '17 U.S.C. § 107(4).[9] The fourth fair-use factor greatly favors Koons.


    [259] CONCLUSION


    Having explored the statutory factors and weighed them together in light of the
    purposes of copyright, Campbell, 510 U.S. at 78, we think that the district court''s
    conclusion was correct — that copyright law''s goal of "promoting the Progress
    of Science and useful Arts," U.S. Const., art. I, § 8, cl. 8, would be better
    served by allowing Koons''s use of "Silk Sandals" than by preventing it, see Castle
    Rock Entm''t, 150 F.3d at 141. We therefore conclude that neither he nor the other
    defendants engaged in or are liable for copyright infringement. We affirm the
    judgment of the district court.


    -------[ … ]


    64.


    ----------


    [*] The Honorable J. Garvan Murtha of the United States District Court for the
    District of Vermont, sitting by designation.


    [1] See E. Kenly Ames, Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation,
    93 Colum. L.Rev. 1473, 1477-80 (1993).


    [2] Guggenheim''s figures for catalogue and postcard sales include sales at the
    Deutsche Guggenheim Berlin. It is possible, therefore, that those sales are double-counted
    in Deutsche Bank''s and Guggenheim''s earnings calculations.


    [3] As the Supreme Court noted in Campbell, however, a finding of transformativeness
    "is not absolutely necessary for a finding of fair use." Campbell, 510 U.S. at
    579, 114 S.Ct. 1164 (citing Sony Corp. of Am. v. Universal Studios, Inc., 464
    U.S. 417, 455 n. 40, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)); see also 17 U.S.C.
    § 107 (listing "multiple copies for classroom use" as among the categories of
    potentially fair uses); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine
    Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 555 (2004) (noting
    that historically some forms of "pure copying" were "at the core of fair use").
    Nor is transformativeness necessarily the only important factor. See Campbell,
    510 U.S. at 578, 114 S.Ct. 1164 ("[T]he four statutory factors . . . [a]re all
    to be explored, and the results weighed together, in light of the purposes of
    copyright.").


    [4] It has been suggested that the exploitation of new, complementary markets
    is the hallmark of fair use. See Ty, Inc. v. Publ''ns Int''l, 292 F.3d 512, 517
    (7th Cir. 2002) ("[C]opying that is complementary to the copyrighted work (in
    the sense that nails are complements of hammers) is fair use, but copying that
    is a substitute for the copyrighted work (in the sense that nails are substitutes
    for pegs or screws), or for derivative works from the copyrighted work, is not
    fair use." (citation omitted)); see also 4-13 Melville B. Nimmer & David Nimmer,
    Nimmer on Copyright § 13.05[B][1] (2006) ("[I]f . . . the defendant''s work, although
    containing substantially similar material, performs a different function than
    that of the plaintiff''s, the defense of fair use may be invoked."). But as the
    Seventh Circuit recognized, this reasoning is in tension with the Copyright Act''s
    express grant to copyright holders of rights over derivative works. See Ty, Inc.,
    292 F.3d at 518 ("Were control of derivative works not part of a copyright owner''s
    bundle of rights, it would be clear that [defendant''s] books fell on the complement
    side of the divide and so were sheltered by the fair-use defense."). A derivative
    use can certainly be complementary to, or fulfill a different function from, the
    original.


    [5] Koons''s clear conception of his reasons for using "Silk Sandals," and his
    ability to articulate those reasons, ease our analysis in this case. We do not
    mean to suggest, however, that either is a sine qua non for a finding of fair
    use — as to satire or more generally.


    [6] We have said that when "''the copyrighted [material is] unpublished, the second
    [fair-use] factor weighs heavily in favor''" of the plaintiff.'
- source_sentence: In the context of supporting factual positions in a legal motion,
    what are the two primary ways a party can assert that a fact cannot be genuinely
    disputed according to the procedures outlined in section (c)(1)?
  sentences:
  - "I will not be requiring you to read these materials. Nor will you be tested on\
    \ them. After discussions with a number of colleagues, I decided that I will present\
    \ an optional lecture or two on sexual assault.\n\n \n\n \n\n \n\n \n\n13.1\n\n\
    Introduction\n\n \n\nTo a greater degree than any of the other crimes we study\
    \ in this class, the very definition of rape has been a subject of dispute and\
    \ reform in recent years. Perhaps that is because the basic result element that\
    \ rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself\
    \ considered bad. When someone intentionally kills another, there is usually little\
    \ question (except in cases of self-defense) that the result is bad and that a\
    \ crime may have occurred. Unlike most intentional killing, intentional sex is\
    \ not inherently wrong. Indeed, in some situations, much of the evidence of rape\
    \ may rest in the perceptions and interpretations of the involved parties. \n\n\
    The traditional elements of rape law are: 1) sexual intercourse; 2) with force;\
    \ 3) and lack of consent. Because the sexual intercourse element of rape can be\
    \ difficult to distinguish from lawful, intentional behavior, rape law has struggled\
    \ to create a regime that balances the punishment of wrongdoers with the protection\
    \ of the rights of the accused. Originally, rape law established strict rules\
    \ governing punishable behavior that were under-inclusive and strongly protected\
    \ accused men: for example, a claim of rape had to include the use of physical\
    \ force by the accused and physical resistance by the victim. Additionally, there\
    \ was a spousal exception to rape, so that husbands could not be criminally liable\
    \ for rape of their wives. \n\nAs the cases in this section demonstrate, however,\
    \ rape law reform in the past several decades has dramatically affected these\
    \ requirements. Namely, feminist legal reformers have challenged and in many jurisdictions\
    \ weakened or eliminated the force requirement. That has shifted more legal focus\
    \ onto the question of whether there was consent. Consider what problems consent\
    \ itself may have as a central element of rape law. As you read the cases and\
    \ essays in this section, consider how different formulations of rape law balance\
    \ several very serious considerations of our criminal system: punishing wrongdoers;\
    \ differentiating between levels of blameworthiness; and protecting the rights\
    \ of defendants. What evidentiary or normative roles did the traditional rape\
    \ requirements play? What are the risks of limiting or removing them? How should\
    \ our system balance the risks of over-inclusivity and under-inclusivity? What\
    \ social and intimate relationships between men and women do the various possible\
    \ rape rules promote and change? And as always, how do these questions implicate\
    \ the justifications of punishment such as retribution and deterrence?\n\n \n\n\
     \n\n \n\n \n\n13.1.1\n\nExcerpt from Criminal Law: Cases, Controversies and Problems\
    \ (West Academic Publishing 2019) by Joseph E. Kennedy (used with permission).\n\
    \n \n\nhttps://app.box.com/s/ixs8jw1d0oi45q68xvpk3vl69m2p6y71\n\n \n\n \n\n \n\
    \n \n\n13.2\n\nStatutes\n\n \n\nConsider some of these questions while you are\
    \ reviewing these statutes.\n\nHow do the statutes define sex, if at all? \n\n\
    How do they define force, if at all? \n\nWhat is the mens rea required? \n\nHow\
    \ do you think they balance the rights of the accused with the harm to be avoided?\
    \ \n\nAs a defense attorney, which one would you find most defendant-friendly?\
    \ \n\nAs a prosecutor, which one would you find most prosecution-friendly?\n\n\
     \n\n \n\n \n\n \n\n13.2.1\n\nForce v. Non-Consent: An Ongoing Struggle to Define\
    \ Rape\n\n \n\nAfter reading the passage from Rusk v. State, below, compare and\
    \ contrast the MPC's section from 1962 with the proposed section governing sexual\
    \ assault.\n\n \n\nPassages taken from the Dissent of Rusk v. State, 43 Md. App.\
    \ 476, 406 A.2d 624 (1979), rev'd, 289 Md. 230, 424 A.2d 720 (1981)):\n\nUnfortunately,\
    \ courts,[ … ] often tend to confuse these two elements force and lack of consent\
    \ and to think of them as one. They are not. They mean, and require, different\
    \ things. [ … ]What seems to cause the confusion what, indeed, has become a common\
    \ denominator of both elements is the notion that the victim must actively resist\
    \ the attack upon her."
  - '(c) Procedures.


    (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
    disputed must support the assertion by:


    (A) citing to particular parts of materials in the record, including depositions, documents,
    electronically stored information, affidavits or declarations, stipulations (including
    those made for purposes of the motion only), admissions, interrogatory answers,
    or other materials; or


    (B) showing that the materials cited do not establish the absence or presence
    of a genuine dispute, or that an adverse party cannot produce admissible evidence
    to support the fact.


    (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
    that the material cited to support or dispute a fact cannot be presented in a form
    that would be admissible in evidence.


    (3) Materials Not Cited. The court need consider only the cited materials, but
    it may consider other materials in the record.


    (4) Affidavits or Declarations. An affidavit or declaration used to support or
    oppose a motion must be made on personal knowledge, set out facts that would be
    admissible in evidence, and show that the affiant or declarant is competent to
    testify on the matters stated.


    (d) When Facts are Unavailable to the Nonmovant. If a nonmovant shows by affidavit
    or declaration that, for specified reasons, it cannot present facts essential
    to justify its opposition, the court may:


    (1) defer considering the motion or deny it;


    (2) allow time to obtain affidavits or declarations or to take discovery; or


    (3) issue any other appropriate order.


    (e) Failing to Properly Support or Address a Fact. If a party fails to properly
    support an assertion of fact or fails to properly address another party’s assertion
    of fact as required by Rule 56(c), the court may:


    (1) give an opportunity to properly support or address the fact;


    (2) consider the fact undisputed for purposes of the motion;


    (3) grant summary judgment if the motion and supporting materials — including the
    facts considered undisputed — show that the movant is entitled to it; or


    (4) issue any other appropriate order.


    (f) Judgment Independent of the Motion. After giving notice and a reasonable time
    to respond, the court may:


    (1) grant summary judgment for a nonmovant;


    (2) grant the motion on grounds not raised by a party; or


    (3) consider summary judgment on its own after identifying for the parties material facts
    that may not be genuinely in dispute.


    (g) Failing to Grant All the Requested Relief. If the court does not grant all
    the relief requested by the motion, it may enter an order stating any material
    fact — including an item of damages or other relief — that is not genuinely in
    dispute and treating the fact as established in the case.


    (h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit
    or declaration under this rule is submitted in bad faith or solely for delay,
    the court — after notice and a reasonable time to respond — may order the submitting
    party to pay the other party the reasonable expenses, including attorney’s fees,
    it incurred as a result. An offending party or attorney may also be held in contempt
    or subjected to other appropriate sanctions.


     


     


     


    11.1.3


    Adickes v. S.H. Kress & Co.


     


    Supreme Court of the United States


    398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598, 1970 U.S. LEXIS 31, SCDB 1969-101


    No. 79


    1970-06-01


    [ … ]


    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.


    [ … ]


    MR. JUSTICE HARLAN delivered the opinion of the Court.


    Petitioner, Sandra Adickes, a white school teacher from New York, brought this
    suit in the United States District Court for the Southern District of New York
    against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U.
    S. C. § 1983[1] for an alleged violation of her constitutional rights under the
    Equal Protection Clause of the Fourteenth Amendment.'
  - 'Id. at 345.


    The Court''s injunction barred the Defendants from: "posting on any Internet web
    site" DeCSS; "in any other way . . . offering to the public, providing, or otherwise
    trafficking in DeCSS"; violating the anti-trafficking provisions of the DMCA in
    any other manner, and finally "knowingly linking any Internet web site operated
    by them to any other web site containing DeCSS, or knowingly maintaining any such
    link, for the purpose of disseminating DeCSS." Universal II, 111 F. Supp. 2d at
    346-47.


    The Appellants have appealed from the permanent injunction. The United States
    has intervened in support of the constitutionality of the DMCA. We have also had
    the benefit of a number of amicus curiae briefs, supporting and opposing the District
    Court''s judgment. After oral argument, we invited the parties to submit responses
    to a series of specific questions, and we have received helpful responses.


    Discussion


    I. Narrow Construction to Avoid Constitutional Doubt


    The Appellants first argue that, because their constitutional arguments are at
    least substantial, we should interpret the statute narrowly so as to avoid constitutional
    problems. They identify three different instances of alleged ambiguity in the
    statute that they claim provide an opportunity for such a narrow interpretation.


    First, they contend that subsection 1201(c)(1), which provides that "[n]othing
    in this section shall affect rights, remedies, limitations or defenses to copyright
    infringement, including fair use, under this title," can be read to allow the
    circumvention of encryption technology protecting copyrighted material when the
    material will be put to "fair uses" exempt from copyright liability.[12] We disagree
    that subsection 1201(c)(1) permits such a reading. Instead, it clearly and simply
    clarifies that the DMCA targets the circumvention of digital walls guarding copyrighted
    material (and trafficking in circumvention tools), but does not concern itself
    with the use of those materials after circumvention has occurred. Subsection 1201(c)(1)
    ensures that the DMCA is not read to prohibit the "fair use" of information just
    because that information was obtained in a manner made illegal by the DMCA. The
    Appellants'' much more expansive interpretation of subsection 1201(c)(1) is not
    only outside the range of plausible readings of the provision, but is also clearly
    refuted by the statute''s legislative history.[13] See Commodity Futures Trading
    [444] Commission v. Schor, 478 U.S. 833, 841 (1986) (constitutional doubt canon
    "does not give a court the prerogative to ignore the legislative will").


    Second, the Appellants urge a narrow construction of the DMCA because of subsection
    1201(c)(4), which provides that "[n]othing in this section shall enlarge or diminish
    any rights of free speech or the press for activities using consumer electronics,
    telecommunications, or computing products." This language is clearly precatory:
    Congress could not "diminish" constitutional rights of free speech even if it
    wished to, and the fact that Congress also expressed a reluctance to "enlarge"
    those rights cuts against the Appellants'' effort to infer a narrowing construction
    of the Act from this provision.


    Third, the Appellants argue that an individual who buys a DVD has the "authority
    of the copyright owner" to view the DVD, and therefore is exempted from the DMCA
    pursuant to subsection 1201(a)(3)(A) when the buyer circumvents an encryption
    technology in order to view the DVD on a competing platform (such as Linux). The
    basic flaw in this argument is that it misreads subsection 1201(a)(3)(A). That
    provision exempts from liability those who would "decrypt" an encrypted DVD with
    the authority of a copyright owner, not those who would "view" a DVD with the
    authority of a copyright owner.[14] In any event, the Defendants offered no evidence
    that the Plaintiffs have either explicitly or implicitly authorized DVD buyers
    to circumvent encryption technology to support use on multiple platforms.[15]


    We conclude that the anti-trafficking and anti-circumvention provisions of the
    DMCA are not susceptible to the narrow interpretations urged by the Appellants.
    We therefore proceed to consider the Appellants'' constitutional clai[ … ]


    45.


    III. Constitutional Challenges Based on the First Amendment


    A. Applicable Principles


    Last year, in one of our Court''s first forays into First Amendment law in the
    digital age, we took an "evolutionary" approach to the task of tailoring familiar
    constitutional rules to novel technological circumstances, favoring "narrow" holdings
    that would permit the law to mature on a "case-by-case" basis. See Name.Space,
    Inc.'
pipeline_tag: sentence-similarity
library_name: sentence-transformers
metrics:
- cosine_accuracy@1
- cosine_accuracy@3
- cosine_accuracy@5
- cosine_accuracy@10
- cosine_precision@1
- cosine_precision@3
- cosine_precision@5
- cosine_precision@10
- cosine_recall@1
- cosine_recall@3
- cosine_recall@5
- cosine_recall@10
- cosine_ndcg@10
- cosine_mrr@10
- cosine_map@100
model-index:
- name: ModernBERT Embed base LegalTextAI Matryoshka legaldataset
  results:
  - task:
      type: information-retrieval
      name: Information Retrieval
    dataset:
      name: dim 768
      type: dim_768
    metrics:
    - type: cosine_accuracy@1
      value: 0.563677639046538
      name: Cosine Accuracy@1
    - type: cosine_accuracy@3
      value: 0.7532349602724177
      name: Cosine Accuracy@3
    - type: cosine_accuracy@5
      value: 0.8338251986379115
      name: Cosine Accuracy@5
    - type: cosine_accuracy@10
      value: 0.9064699205448354
      name: Cosine Accuracy@10
    - type: cosine_precision@1
      value: 0.563677639046538
      name: Cosine Precision@1
    - type: cosine_precision@3
      value: 0.43692773363601967
      name: Cosine Precision@3
    - type: cosine_precision@5
      value: 0.3138706015891033
      name: Cosine Precision@5
    - type: cosine_precision@10
      value: 0.1771850170261067
      name: Cosine Precision@10
    - type: cosine_recall@1
      value: 0.17280552402572832
      name: Cosine Recall@1
    - type: cosine_recall@3
      value: 0.39540295119182745
      name: Cosine Recall@3
    - type: cosine_recall@5
      value: 0.47406356413166856
      name: Cosine Recall@5
    - type: cosine_recall@10
      value: 0.5348846008323874
      name: Cosine Recall@10
    - type: cosine_ndcg@10
      value: 0.5187547279623742
      name: Cosine Ndcg@10
    - type: cosine_mrr@10
      value: 0.6563510080536227
      name: Cosine Mrr@10
    - type: cosine_map@100
      value: 0.405540702788975
      name: Cosine Map@100
  - task:
      type: information-retrieval
      name: Information Retrieval
    dataset:
      name: dim 512
      type: dim_512
    metrics:
    - type: cosine_accuracy@1
      value: 0.5643586833144154
      name: Cosine Accuracy@1
    - type: cosine_accuracy@3
      value: 0.7480136208853575
      name: Cosine Accuracy@3
    - type: cosine_accuracy@5
      value: 0.8326901248581158
      name: Cosine Accuracy@5
    - type: cosine_accuracy@10
      value: 0.9069239500567536
      name: Cosine Accuracy@10
    - type: cosine_precision@1
      value: 0.5643586833144154
      name: Cosine Precision@1
    - type: cosine_precision@3
      value: 0.4346575860764283
      name: Cosine Precision@3
    - type: cosine_precision@5
      value: 0.31296254256526673
      name: Cosine Precision@5
    - type: cosine_precision@10
      value: 0.17727582292849034
      name: Cosine Precision@10
    - type: cosine_recall@1
      value: 0.17311766931517214
      name: Cosine Recall@1
    - type: cosine_recall@3
      value: 0.39366250472947406
      name: Cosine Recall@3
    - type: cosine_recall@5
      value: 0.47279606507756333
      name: Cosine Recall@5
    - type: cosine_recall@10
      value: 0.5347048808172531
      name: Cosine Recall@10
    - type: cosine_ndcg@10
      value: 0.5183038417206716
      name: Cosine Ndcg@10
    - type: cosine_mrr@10
      value: 0.6556147415455059
      name: Cosine Mrr@10
    - type: cosine_map@100
      value: 0.40507871113478044
      name: Cosine Map@100
  - task:
      type: information-retrieval
      name: Information Retrieval
    dataset:
      name: dim 256
      type: dim_256
    metrics:
    - type: cosine_accuracy@1
      value: 0.5514188422247446
      name: Cosine Accuracy@1
    - type: cosine_accuracy@3
      value: 0.7350737797956867
      name: Cosine Accuracy@3
    - type: cosine_accuracy@5
      value: 0.8229284903518729
      name: Cosine Accuracy@5
    - type: cosine_accuracy@10
      value: 0.8994324631101022
      name: Cosine Accuracy@10
    - type: cosine_precision@1
      value: 0.5514188422247446
      name: Cosine Precision@1
    - type: cosine_precision@3
      value: 0.4262580401059402
      name: Cosine Precision@3
    - type: cosine_precision@5
      value: 0.3083768444948921
      name: Cosine Precision@5
    - type: cosine_precision@10
      value: 0.17541430192962543
      name: Cosine Precision@10
    - type: cosine_recall@1
      value: 0.16906923950056754
      name: Cosine Recall@1
    - type: cosine_recall@3
      value: 0.38532917139614076
      name: Cosine Recall@3
    - type: cosine_recall@5
      value: 0.4654370034052213
      name: Cosine Recall@5
    - type: cosine_recall@10
      value: 0.528934922436625
      name: Cosine Recall@10
    - type: cosine_ndcg@10
      value: 0.510010607965036
      name: Cosine Ndcg@10
    - type: cosine_mrr@10
      value: 0.6435795362412876
      name: Cosine Mrr@10
    - type: cosine_map@100
      value: 0.39788163185255543
      name: Cosine Map@100
  - task:
      type: information-retrieval
      name: Information Retrieval
    dataset:
      name: dim 128
      type: dim_128
    metrics:
    - type: cosine_accuracy@1
      value: 0.51577752553916
      name: Cosine Accuracy@1
    - type: cosine_accuracy@3
      value: 0.6869466515323496
      name: Cosine Accuracy@3
    - type: cosine_accuracy@5
      value: 0.7782065834279228
      name: Cosine Accuracy@5
    - type: cosine_accuracy@10
      value: 0.8681044267877412
      name: Cosine Accuracy@10
    - type: cosine_precision@1
      value: 0.51577752553916
      name: Cosine Precision@1
    - type: cosine_precision@3
      value: 0.3981838819523269
      name: Cosine Precision@3
    - type: cosine_precision@5
      value: 0.29017026106696936
      name: Cosine Precision@5
    - type: cosine_precision@10
      value: 0.16917139614074914
      name: Cosine Precision@10
    - type: cosine_recall@1
      value: 0.1580495648883844
      name: Cosine Recall@1
    - type: cosine_recall@3
      value: 0.36035754824063565
      name: Cosine Recall@3
    - type: cosine_recall@5
      value: 0.43830874006810444
      name: Cosine Recall@5
    - type: cosine_recall@10
      value: 0.5108210367007189
      name: Cosine Recall@10
    - type: cosine_ndcg@10
      value: 0.4847970730213756
      name: Cosine Ndcg@10
    - type: cosine_mrr@10
      value: 0.6059843612057029
      name: Cosine Mrr@10
    - type: cosine_map@100
      value: 0.37689502932030106
      name: Cosine Map@100
  - task:
      type: information-retrieval
      name: Information Retrieval
    dataset:
      name: dim 64
      type: dim_64
    metrics:
    - type: cosine_accuracy@1
      value: 0.4460839954597049
      name: Cosine Accuracy@1
    - type: cosine_accuracy@3
      value: 0.6086265607264473
      name: Cosine Accuracy@3
    - type: cosine_accuracy@5
      value: 0.692622020431328
      name: Cosine Accuracy@5
    - type: cosine_accuracy@10
      value: 0.7904653802497162
      name: Cosine Accuracy@10
    - type: cosine_precision@1
      value: 0.4460839954597049
      name: Cosine Precision@1
    - type: cosine_precision@3
      value: 0.3508134695421869
      name: Cosine Precision@3
    - type: cosine_precision@5
      value: 0.25811577752553916
      name: Cosine Precision@5
    - type: cosine_precision@10
      value: 0.15443813847900112
      name: Cosine Precision@10
    - type: cosine_recall@1
      value: 0.13693719258418463
      name: Cosine Recall@1
    - type: cosine_recall@3
      value: 0.3185679152478244
      name: Cosine Recall@3
    - type: cosine_recall@5
      value: 0.3895005675368899
      name: Cosine Recall@5
    - type: cosine_recall@10
      value: 0.4661180476730988
      name: Cosine Recall@10
    - type: cosine_ndcg@10
      value: 0.4332106064878949
      name: Cosine Ndcg@10
    - type: cosine_mrr@10
      value: 0.5331181197412749
      name: Cosine Mrr@10
    - type: cosine_map@100
      value: 0.3364905185021107
      name: Cosine Map@100
---

# ModernBERT Embed base LegalTextAI Matryoshka legaldataset

This is a [sentence-transformers](https://www.SBERT.net) model finetuned from [nomic-ai/modernbert-embed-base](https://huggingface.co/nomic-ai/modernbert-embed-base) on the json dataset. It maps sentences & paragraphs to a 768-dimensional dense vector space and can be used for semantic textual similarity, semantic search, paraphrase mining, text classification, clustering, and more.

## Model Details

### Model Description
- **Model Type:** Sentence Transformer
- **Base model:** [nomic-ai/modernbert-embed-base](https://huggingface.co/nomic-ai/modernbert-embed-base) <!-- at revision d556a88e332558790b210f7bdbe87da2fa94a8d8 -->
- **Maximum Sequence Length:** 8192 tokens
- **Output Dimensionality:** 768 dimensions
- **Similarity Function:** Cosine Similarity
- **Training Dataset:**
    - json
- **Language:** en
- **License:** apache-2.0

### Model Sources

- **Documentation:** [Sentence Transformers Documentation](https://sbert.net)
- **Repository:** [Sentence Transformers on GitHub](https://github.com/UKPLab/sentence-transformers)
- **Hugging Face:** [Sentence Transformers on Hugging Face](https://huggingface.co/models?library=sentence-transformers)

### Full Model Architecture

```
SentenceTransformer(
  (0): Transformer({'max_seq_length': 8192, 'do_lower_case': False}) with Transformer model: ModernBertModel 
  (1): Pooling({'word_embedding_dimension': 768, 'pooling_mode_cls_token': False, 'pooling_mode_mean_tokens': True, 'pooling_mode_max_tokens': False, 'pooling_mode_mean_sqrt_len_tokens': False, 'pooling_mode_weightedmean_tokens': False, 'pooling_mode_lasttoken': False, 'include_prompt': True})
  (2): Normalize()
)
```

## Usage

### Direct Usage (Sentence Transformers)

First install the Sentence Transformers library:

```bash
pip install -U sentence-transformers
```

Then you can load this model and run inference.
```python
from sentence_transformers import SentenceTransformer

# Download from the 🤗 Hub
model = SentenceTransformer("legaltextai/modernbert-embed-base-legaltextai-matryoshka-legaldataset")
# Run inference
sentences = [
    'In the context of supporting factual positions in a legal motion, what are the two primary ways a party can assert that a fact cannot be genuinely disputed according to the procedures outlined in section (c)(1)?',
    '(c) Procedures.\n\n(1) Supporting Factual Positions. A party asserting that a fact cannot be or is\xa0genuinely disputed must support the assertion by:\n\n(A) citing to particular parts of materials in the record, including depositions,\xa0documents, electronically stored information, affidavits or declarations,\xa0stipulations (including those made for purposes of the motion only), admissions,\xa0interrogatory answers, or other materials; or\n\n(B) showing that the materials cited do not establish the absence or presence of a\xa0genuine dispute, or that an adverse party cannot produce admissible evidence to\xa0support the fact.\n\n(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may\xa0object that the material cited to support or dispute a fact cannot be presented in a\xa0form that would be admissible in evidence.\n\n(3) Materials Not Cited. The court need consider only the cited materials, but it\xa0may consider other materials in the record.\n\n(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose\xa0a motion must be made on personal knowledge, set out facts that would be admissible\xa0in evidence, and show that the affiant or declarant is competent to testify on the\xa0matters stated.\n\n(d) When Facts are Unavailable to the Nonmovant. If a nonmovant shows by\xa0affidavit or declaration that, for specified reasons, it cannot present facts essential to\xa0justify its opposition, the court may:\n\n(1) defer considering the motion or deny it;\n\n(2) allow time to obtain affidavits or declarations or to take discovery; or\n\n(3) issue any other appropriate order.\n\n(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:\n\n(1) give an opportunity to properly support or address the fact;\n\n(2) consider the fact undisputed for purposes of the motion;\n\n(3) grant summary judgment if the motion and supporting materials — including\xa0the facts considered undisputed — show that the movant is entitled to it; or\n\n(4) issue any other appropriate order.\n\n(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:\n\n(1) grant summary judgment for a nonmovant;\n\n(2) grant the motion on grounds not raised by a party; or\n\n(3) consider summary judgment on its own after identifying for the parties material\xa0facts that may not be genuinely in dispute.\n\n(g) Failing to Grant All the Requested Relief.\xa0If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an\xa0item of damages or other relief — that is not genuinely in dispute and treating the fact as\xa0established in the case.\n\n(h) Affidavit or Declaration Submitted in Bad Faith.\xa0If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after\xa0notice and a reasonable time to respond — may order the submitting party to pay the\xa0other party the reasonable expenses, including attorney’s fees, it incurred as a result. An\xa0offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.\n\n\xa0\n\n\xa0\n\n\xa0\n\n11.1.3\n\nAdickes v. S.H. Kress & Co.\n\n\xa0\n\nSupreme Court of the United States\n\n398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598, 1970 U.S. LEXIS 31, SCDB 1969-101\n\nNo. 79\n\n1970-06-01\n\n[ … ]\n\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.\n\n[ … ]\n\nMR. JUSTICE HARLAN delivered the opinion of the Court.\n\nPetitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U. S. C. § 1983[1] for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment.',
    "I will not be requiring you to read these materials. Nor will you be tested on them. After discussions with a number of colleagues, I decided that I will present an optional lecture or two on sexual assault.\n\n\xa0\n\n\xa0\n\n\xa0\n\n\xa0\n\n13.1\n\nIntroduction\n\n\xa0\n\nTo a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties. \n\nThe traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives. \n\nAs the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question of whether there was consent. Consider what problems consent itself may have as a central element of rape law. As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?\n\n\xa0\n\n\xa0\n\n\xa0\n\n\xa0\n\n13.1.1\n\nExcerpt from Criminal Law: Cases, Controversies and Problems (West Academic Publishing 2019) by Joseph E. Kennedy (used with permission).\n\n\xa0\n\nhttps://app.box.com/s/ixs8jw1d0oi45q68xvpk3vl69m2p6y71\n\n\xa0\n\n\xa0\n\n\xa0\n\n\xa0\n\n13.2\n\nStatutes\n\n\xa0\n\nConsider some of these questions while you are reviewing these statutes.\n\nHow do the statutes define sex, if at all? \n\nHow do they define force, if at all? \n\nWhat is the mens rea required? \n\nHow do you think they balance the rights of the accused with the harm to be avoided? \n\nAs a defense attorney, which one would you find most defendant-friendly? \n\nAs a prosecutor, which one would you find most prosecution-friendly?\n\n\xa0\n\n\xa0\n\n\xa0\n\n\xa0\n\n13.2.1\n\nForce v. Non-Consent: An Ongoing Struggle to Define Rape\n\n\xa0\n\nAfter reading the passage from Rusk v. State, below, compare and contrast the MPC's section from 1962 with the proposed section governing sexual assault.\n\n\xa0\n\nPassages taken from the Dissent of\xa0Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979),\xa0rev'd,\xa0289 Md. 230, 424 A.2d 720 (1981)):\n\nUnfortunately, courts,[ … ] often tend to confuse these two elements force and lack of consent and to think of them as one. They are not. They mean, and require, different things. [ … ]What seems to cause the confusion what, indeed, has become a common denominator of both elements is the notion that the victim must actively resist the attack upon her.",
]
embeddings = model.encode(sentences)
print(embeddings.shape)
# [3, 768]

# Get the similarity scores for the embeddings
similarities = model.similarity(embeddings, embeddings)
print(similarities.shape)
# [3, 3]
```

<!--
### Direct Usage (Transformers)

<details><summary>Click to see the direct usage in Transformers</summary>

</details>
-->

<!--
### Downstream Usage (Sentence Transformers)

You can finetune this model on your own dataset.

<details><summary>Click to expand</summary>

</details>
-->

<!--
### Out-of-Scope Use

*List how the model may foreseeably be misused and address what users ought not to do with the model.*
-->

## Evaluation

### Metrics

#### Information Retrieval

* Datasets: `dim_768`, `dim_512`, `dim_256`, `dim_128` and `dim_64`
* Evaluated with [<code>InformationRetrievalEvaluator</code>](https://sbert.net/docs/package_reference/sentence_transformer/evaluation.html#sentence_transformers.evaluation.InformationRetrievalEvaluator)

| Metric              | dim_768    | dim_512    | dim_256  | dim_128    | dim_64     |
|:--------------------|:-----------|:-----------|:---------|:-----------|:-----------|
| cosine_accuracy@1   | 0.5637     | 0.5644     | 0.5514   | 0.5158     | 0.4461     |
| cosine_accuracy@3   | 0.7532     | 0.748      | 0.7351   | 0.6869     | 0.6086     |
| cosine_accuracy@5   | 0.8338     | 0.8327     | 0.8229   | 0.7782     | 0.6926     |
| cosine_accuracy@10  | 0.9065     | 0.9069     | 0.8994   | 0.8681     | 0.7905     |
| cosine_precision@1  | 0.5637     | 0.5644     | 0.5514   | 0.5158     | 0.4461     |
| cosine_precision@3  | 0.4369     | 0.4347     | 0.4263   | 0.3982     | 0.3508     |
| cosine_precision@5  | 0.3139     | 0.313      | 0.3084   | 0.2902     | 0.2581     |
| cosine_precision@10 | 0.1772     | 0.1773     | 0.1754   | 0.1692     | 0.1544     |
| cosine_recall@1     | 0.1728     | 0.1731     | 0.1691   | 0.158      | 0.1369     |
| cosine_recall@3     | 0.3954     | 0.3937     | 0.3853   | 0.3604     | 0.3186     |
| cosine_recall@5     | 0.4741     | 0.4728     | 0.4654   | 0.4383     | 0.3895     |
| cosine_recall@10    | 0.5349     | 0.5347     | 0.5289   | 0.5108     | 0.4661     |
| **cosine_ndcg@10**  | **0.5188** | **0.5183** | **0.51** | **0.4848** | **0.4332** |
| cosine_mrr@10       | 0.6564     | 0.6556     | 0.6436   | 0.606      | 0.5331     |
| cosine_map@100      | 0.4055     | 0.4051     | 0.3979   | 0.3769     | 0.3365     |

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## Training Details

### Training Dataset

#### json

* Dataset: json
* Size: 41,342 training samples
* Columns: <code>anchor</code> and <code>positive</code>
* Approximate statistics based on the first 1000 samples:
  |         | anchor                                                                             | positive                                                                               |
  |:--------|:-----------------------------------------------------------------------------------|:---------------------------------------------------------------------------------------|
  | type    | string                                                                             | string                                                                                 |
  | details | <ul><li>min: 23 tokens</li><li>mean: 43.27 tokens</li><li>max: 72 tokens</li></ul> | <ul><li>min: 279 tokens</li><li>mean: 960.03 tokens</li><li>max: 1076 tokens</li></ul> |
* Samples:
  | anchor                                                                                                                                                                                                                                      | positive                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
  |:--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|:---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
  | <code>What reasons did the District provide for placing Mr. Kennedy on paid administrative leave after the October 26 game, and how did they justify their concerns regarding his postgame prayers?</code>                                  | <code>The letter also admitted that, during Mr. Kennedy’s recent October 16 postgame prayer, his students were otherwise engaged and not praying with him, and that his prayer was “fleeting.” Id., at 90, 93. Still, the District explained that a “reasonable observer” could think government endorsement of religion had occurred when a “District employee, on the field only by virtue of his employment with the District, still on duty” engaged in “overtly religious conduct.” Id., at 91, 93. The District thus made clear that the only option it would offer Mr. Kennedy was to allow him to pray after a game in a “private location” behind closed doors and “not observable to students or the public.” Id., at 93–94.<br><br> <br><br>After the October 23 game ended, Mr. Kennedy knelt at the 50-yard line, where “no one joined him,” and bowed his head for a “brief, quiet prayer.” 991 F.3d at 1019; App. 173, 236–239. The superintendent informed the District’s board that this prayer “moved closer to what we want,” but never...</code>             |
  | <code>Why is it considered an abuse of discretion for a district court to require the S.E.C. to establish the "truth" of the allegations against a settling party as a condition for approving consent decrees?</code>                      | <code>[ … ]<br><br>We turn, then, to the far thornier question of what deference the district court owes an agency seeking a consent decree. Our Court recognizes a “strong federal policy favoring the approval and enforcement of consent decrees.” [ … ]“To be sure, when the district judge is presented with a proposed consent judgment, he is not merely a ‘rubber stamp.’ ” [ … ][ … ]<br><br>[ … ]<br><br>the proper standard for reviewing a proposed consent judgment involving an enforcement agency requires that the district court determine whether the proposed consent decree is fair and reasonable, with the additional requirement that the “public interest would not be disserved,” [ … ] in the event that the consent decree includes in-junctive relief. Absent a substantial basis in the record for concluding that the proposed consent decree does not meet these requirements, the district court is required to enter the order.<br><br>We omit “adequacy” from the standard. Scrutinizing a proposed consent decree for “adequacy” ap...</code> |
  | <code>Describe the sequence of events that led to Officer McClendon asking Jamison for consent to search his vehicle. What were the key points of contention between Officer McClendon's and Jamison's accounts of this interaction?</code> | <code>Officer McClendon pulled behind Jamison and flashed his blue lights. Jamison immediately pulled over to the right shoulder.[27]<br><br>As Officer McClendon approached the passenger side of Jamison's car, Jamison rolled down the passenger side window. Officer McClendon began to speak with Jamison when he reached the window. According 393*393 to McClendon, he noticed that Jamison had recently purchased his car in Pennsylvania, and Jamison told him that he was traveling from "Vegas or Arizona."<br><br>Officer McClendon asked Jamison for "his license, insurance, [and] the paperwork on the vehicle because it didn't have a tag." Jamison provided his bill of sale, insurance, and South Carolina driver's license. Officer McClendon returned to his car to conduct a background check using the El Paso Intelligence Center ("EPIC"). The EPIC check came back clear immediately. Officer McLendon then contacted the National Criminal Information Center ("NCIC") and asked the dispatcher to run a criminal history on Ja...</code>             |
* Loss: [<code>MatryoshkaLoss</code>](https://sbert.net/docs/package_reference/sentence_transformer/losses.html#matryoshkaloss) with these parameters:
  ```json
  {
      "loss": "MultipleNegativesRankingLoss",
      "matryoshka_dims": [
          768,
          512,
          256,
          128,
          64
      ],
      "matryoshka_weights": [
          1,
          1,
          1,
          1,
          1
      ],
      "n_dims_per_step": -1
  }
  ```

### Training Hyperparameters
#### Non-Default Hyperparameters

- `eval_strategy`: epoch
- `per_device_train_batch_size`: 16
- `per_device_eval_batch_size`: 16
- `gradient_accumulation_steps`: 32
- `learning_rate`: 2e-05
- `num_train_epochs`: 4
- `lr_scheduler_type`: cosine
- `warmup_ratio`: 0.1
- `bf16`: True
- `tf32`: True
- `load_best_model_at_end`: True
- `optim`: adamw_torch_fused
- `batch_sampler`: no_duplicates

#### All Hyperparameters
<details><summary>Click to expand</summary>

- `overwrite_output_dir`: False
- `do_predict`: False
- `eval_strategy`: epoch
- `prediction_loss_only`: True
- `per_device_train_batch_size`: 16
- `per_device_eval_batch_size`: 16
- `per_gpu_train_batch_size`: None
- `per_gpu_eval_batch_size`: None
- `gradient_accumulation_steps`: 32
- `eval_accumulation_steps`: None
- `torch_empty_cache_steps`: None
- `learning_rate`: 2e-05
- `weight_decay`: 0.0
- `adam_beta1`: 0.9
- `adam_beta2`: 0.999
- `adam_epsilon`: 1e-08
- `max_grad_norm`: 1.0
- `num_train_epochs`: 4
- `max_steps`: -1
- `lr_scheduler_type`: cosine
- `lr_scheduler_kwargs`: {}
- `warmup_ratio`: 0.1
- `warmup_steps`: 0
- `log_level`: passive
- `log_level_replica`: warning
- `log_on_each_node`: True
- `logging_nan_inf_filter`: True
- `save_safetensors`: True
- `save_on_each_node`: False
- `save_only_model`: False
- `restore_callback_states_from_checkpoint`: False
- `no_cuda`: False
- `use_cpu`: False
- `use_mps_device`: False
- `seed`: 42
- `data_seed`: None
- `jit_mode_eval`: False
- `use_ipex`: False
- `bf16`: True
- `fp16`: False
- `fp16_opt_level`: O1
- `half_precision_backend`: auto
- `bf16_full_eval`: False
- `fp16_full_eval`: False
- `tf32`: True
- `local_rank`: 0
- `ddp_backend`: None
- `tpu_num_cores`: None
- `tpu_metrics_debug`: False
- `debug`: []
- `dataloader_drop_last`: False
- `dataloader_num_workers`: 0
- `dataloader_prefetch_factor`: None
- `past_index`: -1
- `disable_tqdm`: False
- `remove_unused_columns`: True
- `label_names`: None
- `load_best_model_at_end`: True
- `ignore_data_skip`: False
- `fsdp`: []
- `fsdp_min_num_params`: 0
- `fsdp_config`: {'min_num_params': 0, 'xla': False, 'xla_fsdp_v2': False, 'xla_fsdp_grad_ckpt': False}
- `fsdp_transformer_layer_cls_to_wrap`: None
- `accelerator_config`: {'split_batches': False, 'dispatch_batches': None, 'even_batches': True, 'use_seedable_sampler': True, 'non_blocking': False, 'gradient_accumulation_kwargs': None}
- `deepspeed`: None
- `label_smoothing_factor`: 0.0
- `optim`: adamw_torch_fused
- `optim_args`: None
- `adafactor`: False
- `group_by_length`: False
- `length_column_name`: length
- `ddp_find_unused_parameters`: None
- `ddp_bucket_cap_mb`: None
- `ddp_broadcast_buffers`: False
- `dataloader_pin_memory`: True
- `dataloader_persistent_workers`: False
- `skip_memory_metrics`: True
- `use_legacy_prediction_loop`: False
- `push_to_hub`: False
- `resume_from_checkpoint`: None
- `hub_model_id`: None
- `hub_strategy`: every_save
- `hub_private_repo`: None
- `hub_always_push`: False
- `gradient_checkpointing`: False
- `gradient_checkpointing_kwargs`: None
- `include_inputs_for_metrics`: False
- `include_for_metrics`: []
- `eval_do_concat_batches`: True
- `fp16_backend`: auto
- `push_to_hub_model_id`: None
- `push_to_hub_organization`: None
- `mp_parameters`: 
- `auto_find_batch_size`: False
- `full_determinism`: False
- `torchdynamo`: None
- `ray_scope`: last
- `ddp_timeout`: 1800
- `torch_compile`: False
- `torch_compile_backend`: None
- `torch_compile_mode`: None
- `dispatch_batches`: None
- `split_batches`: None
- `include_tokens_per_second`: False
- `include_num_input_tokens_seen`: False
- `neftune_noise_alpha`: None
- `optim_target_modules`: None
- `batch_eval_metrics`: False
- `eval_on_start`: False
- `use_liger_kernel`: False
- `eval_use_gather_object`: False
- `average_tokens_across_devices`: False
- `prompts`: None
- `batch_sampler`: no_duplicates
- `multi_dataset_batch_sampler`: proportional

</details>

### Training Logs
| Epoch      | Step    | Training Loss | dim_768_cosine_ndcg@10 | dim_512_cosine_ndcg@10 | dim_256_cosine_ndcg@10 | dim_128_cosine_ndcg@10 | dim_64_cosine_ndcg@10 |
|:----------:|:-------:|:-------------:|:----------------------:|:----------------------:|:----------------------:|:----------------------:|:---------------------:|
| 0.1238     | 10      | 59.6933       | -                      | -                      | -                      | -                      | -                     |
| 0.2477     | 20      | 20.2066       | -                      | -                      | -                      | -                      | -                     |
| 0.3715     | 30      | 10.2468       | -                      | -                      | -                      | -                      | -                     |
| 0.4954     | 40      | 7.7729        | -                      | -                      | -                      | -                      | -                     |
| 0.6192     | 50      | 6.5815        | -                      | -                      | -                      | -                      | -                     |
| 0.7430     | 60      | 5.8646        | -                      | -                      | -                      | -                      | -                     |
| 0.8669     | 70      | 5.0228        | -                      | -                      | -                      | -                      | -                     |
| 0.9907     | 80      | 4.8557        | -                      | -                      | -                      | -                      | -                     |
| 1.0        | 81      | -             | 0.5013                 | 0.4986                 | 0.4888                 | 0.4586                 | 0.3932                |
| 1.1115     | 90      | 3.0385        | -                      | -                      | -                      | -                      | -                     |
| 1.2353     | 100     | 2.9601        | -                      | -                      | -                      | -                      | -                     |
| 1.3591     | 110     | 2.8391        | -                      | -                      | -                      | -                      | -                     |
| 1.4830     | 120     | 2.9631        | -                      | -                      | -                      | -                      | -                     |
| 1.6068     | 130     | 2.6344        | -                      | -                      | -                      | -                      | -                     |
| 1.7307     | 140     | 2.4715        | -                      | -                      | -                      | -                      | -                     |
| 1.8545     | 150     | 2.7462        | -                      | -                      | -                      | -                      | -                     |
| 1.9783     | 160     | 2.5805        | -                      | -                      | -                      | -                      | -                     |
| 2.0        | 162     | -             | 0.5162                 | 0.5142                 | 0.5040                 | 0.4778                 | 0.4242                |
| 2.0991     | 170     | 2.0474        | -                      | -                      | -                      | -                      | -                     |
| 2.2229     | 180     | 1.9431        | -                      | -                      | -                      | -                      | -                     |
| 2.3467     | 190     | 2.0218        | -                      | -                      | -                      | -                      | -                     |
| 2.4706     | 200     | 1.8881        | -                      | -                      | -                      | -                      | -                     |
| 2.5944     | 210     | 1.6105        | -                      | -                      | -                      | -                      | -                     |
| 2.7183     | 220     | 1.9675        | -                      | -                      | -                      | -                      | -                     |
| 2.8421     | 230     | 1.6917        | -                      | -                      | -                      | -                      | -                     |
| 2.9659     | 240     | 1.8939        | -                      | -                      | -                      | -                      | -                     |
| 3.0        | 243     | -             | 0.5188                 | 0.5175                 | 0.5097                 | 0.4840                 | 0.4303                |
| 3.0867     | 250     | 1.8625        | -                      | -                      | -                      | -                      | -                     |
| 3.2105     | 260     | 1.7864        | -                      | -                      | -                      | -                      | -                     |
| 3.3344     | 270     | 1.6404        | -                      | -                      | -                      | -                      | -                     |
| 3.4582     | 280     | 1.6378        | -                      | -                      | -                      | -                      | -                     |
| 3.5820     | 290     | 1.8484        | -                      | -                      | -                      | -                      | -                     |
| 3.7059     | 300     | 1.7864        | -                      | -                      | -                      | -                      | -                     |
| 3.8297     | 310     | 1.5436        | -                      | -                      | -                      | -                      | -                     |
| **3.9536** | **320** | **1.3438**    | **0.5188**             | **0.5183**             | **0.51**               | **0.4848**             | **0.4332**            |

* The bold row denotes the saved checkpoint.

### Framework Versions
- Python: 3.11.11
- Sentence Transformers: 3.4.1
- Transformers: 4.49.0
- PyTorch: 2.6.0+cu124
- Accelerate: 1.3.0
- Datasets: 3.3.1
- Tokenizers: 0.21.0

## Citation

### BibTeX

#### Sentence Transformers
```bibtex
@inproceedings{reimers-2019-sentence-bert,
    title = "Sentence-BERT: Sentence Embeddings using Siamese BERT-Networks",
    author = "Reimers, Nils and Gurevych, Iryna",
    booktitle = "Proceedings of the 2019 Conference on Empirical Methods in Natural Language Processing",
    month = "11",
    year = "2019",
    publisher = "Association for Computational Linguistics",
    url = "https://arxiv.org/abs/1908.10084",
}
```

#### MatryoshkaLoss
```bibtex
@misc{kusupati2024matryoshka,
    title={Matryoshka Representation Learning},
    author={Aditya Kusupati and Gantavya Bhatt and Aniket Rege and Matthew Wallingford and Aditya Sinha and Vivek Ramanujan and William Howard-Snyder and Kaifeng Chen and Sham Kakade and Prateek Jain and Ali Farhadi},
    year={2024},
    eprint={2205.13147},
    archivePrefix={arXiv},
    primaryClass={cs.LG}
}
```

#### MultipleNegativesRankingLoss
```bibtex
@misc{henderson2017efficient,
    title={Efficient Natural Language Response Suggestion for Smart Reply},
    author={Matthew Henderson and Rami Al-Rfou and Brian Strope and Yun-hsuan Sung and Laszlo Lukacs and Ruiqi Guo and Sanjiv Kumar and Balint Miklos and Ray Kurzweil},
    year={2017},
    eprint={1705.00652},
    archivePrefix={arXiv},
    primaryClass={cs.CL}
}
```

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