Indiana Law Journal最新文献

{"title":"Intolerants:","authors":"Tania Ahmad","doi":"10.2307/j.ctt2005rdp.10","DOIUrl":"https://doi.org/10.2307/j.ctt2005rdp.10","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"135-160"},"PeriodicalIF":0.0,"publicationDate":"2016-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147911462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis","authors":"Shahar Dillbary, G. Edwards, Fredrick E. Vars","doi":"10.2139/SSRN.2816136","DOIUrl":"https://doi.org/10.2139/SSRN.2816136","url":null,"abstract":"This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists — the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide — the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"5"},"PeriodicalIF":0.8,"publicationDate":"2016-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84152522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Congress, Tribal Recognition, and Legislative-Administrative Multiplicity","authors":"K. Carlson","doi":"10.2139/SSRN.2619288","DOIUrl":"https://doi.org/10.2139/SSRN.2619288","url":null,"abstract":"For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"348 1","pages":"8"},"PeriodicalIF":0.8,"publicationDate":"2016-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76309940","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"To Loose the Bonds: The Deceptive Promise of Freedom from Pre-Trial Immigration Detention","authors":"D. Gilman","doi":"10.2139/ssrn.2737416","DOIUrl":"https://doi.org/10.2139/ssrn.2737416","url":null,"abstract":"Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through custody determination, or bond, proceedings focused on the question of whether a migrant poses a flight risk or danger to the community. Yet, because the proceedings skip the critical inquiry into the need for detention before setting monetary bond requirements for release that are difficult to fulfill, freedom remains elusive.Custody determination proceedings are a cornerstone in the U.S. immigration detention edifice but have received scarce attention. Furthermore, the public debate on mass incarceration, which could meaningfully inform the discussion, generally ignores the reality of expansive immigration detention, including for pre-trial detainees who might be released. This Article takes up the task of critiquing the role and functioning of immigration custody determination proceedings, in part by joining together the conversations taking place in the immigration and criminal pre-trial realms. In this Article, I assert that immigration custody determination proceedings fail to preserve and protect the constitutional presumption of liberty applicable to all persons facing detention without a criminal conviction. The proceedings result in automatic detention without meaningful individualized consideration or review. Furthermore, they adopt elements from the criminal pre-trial system that are ill-suited to the immigration setting while failing to incorporate lessons learned in the criminal justice setting. Important considerations in the criminal justice context, such as the inadvisability of emphasizing monetary bond, do not make their way into immigration custody determination proceedings, with negative results for liberty. Given these realities, the Article both proposes normative changes to immigration custody determination proceedings and calls for additional research in order to rationalize the process. These reforms would realign the system with the limited purposes of immigration detention in order to protect liberty and avoid the significant human and societal costs associated with detaining individuals who might safely be released.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"19 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2016-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88960531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Self-Help, Reimagined","authors":"D. Greiner, Dalié Jiménez, L. R. Lupica","doi":"10.2139/SSRN.2633032","DOIUrl":"https://doi.org/10.2139/SSRN.2633032","url":null,"abstract":"We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials are available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents. This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"19 1","pages":"6"},"PeriodicalIF":0.8,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81912537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trust: A Model for Disclosure in Patent Law","authors":"A. Waldman","doi":"10.2139/SSRN.2634573","DOIUrl":"https://doi.org/10.2139/SSRN.2634573","url":null,"abstract":"How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust. Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current application of the public use bar appears to privilege the confidentiality and control norms of industry while minimizing those no less strong norms common to lone entrepreneurs. This results in a general pattern: corporate inventors tend to whin their public use cases; solo entrepreneurs tend to lose them. As a result, the public use bar has unintended negative effects, including discouraging experimentation and discriminating against inventors without the financial backing of corporate employers. This project proposes a new way of talking about, thinking through, and determining when previous disclosures bar subsequent patentability. In short, I argue that patent disclosures in contexts of trust retain their legal protection despite any ostensible loss of control or lack of formal confidentiality agreements. This proposal respects social network differences and will advance the goals of patent law and increase access to the innovation economy for all persons.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"87 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2015-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81079588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Two Faces of the Foreign Intelligence Surveillance Court","authors":"E. Berman","doi":"10.2139/SSRN.2250123","DOIUrl":"https://doi.org/10.2139/SSRN.2250123","url":null,"abstract":"When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (FISA Court), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has largely missed a critical feature of the way the FISA Court works. As this Article will show, since 9/11, the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional — and entirely different — role of “rulemaker.” This is the first scholarly examination of this dichotomy and its implications for reform. Further, the Article is particularly timely in providing an assessment of the recently enacted USA Freedom Act of 2015, Congress’ attempt to reform the Court. I argue that, viewed through the lens of the Court’s dual roles, the scholarly and public conversation has fallen short in two important respects. First, it has failed to give the Court sufficient credit for its laudable performance as gatekeeper, and second, it has ignored the implications that the gatekeeper/rulemaker dichotomy has for reform. As a result, I conclude that the USA Freedom Act is not only woefully inadequate to remedy the problems that it targets but also fails entirely to address additional problems with the FISA Court. In light of these conclusions, the USA Freedom Act represents a missed opportunity. In not fully appreciating or accounting for the unique challenges that the Court’s rulemaking function poses, the Act does not go nearly far enough in bolstering the Court’s rulemaking competence. Moreover, the Act neglects (as has the public debate) a critical area for reform: ensuring sufficient flow of information from the executive branch to the FISA Court. I therefore explore the nature of this challenge and offer some additional reform ideas for consideration.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"58 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84890416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Right to Attention","authors":"J. Tran","doi":"10.2139/SSRN.2600463","DOIUrl":"https://doi.org/10.2139/SSRN.2600463","url":null,"abstract":"What marketing, contracts, healthcare — specifically informed consent and mandatory ultrasounds — have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective — e.g., how much information the communicator discloses — or on the information itself, but surprisingly, not much on the receiver’s perspective.This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely bombard us with their “products” daily resulting in our own time and monetary loss. Just to name a few, without recognizing the right to attention, contract formation and informed consent are hollow and superfluous: contracting parties have no meeting of the mind and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills as though their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.This paper proposes legislation to recognize the right to attention as a statutory right, or alternatively, suggests that the courts recognize the right to attention as a common law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights include, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right not to receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right not to be required to receive information against one’s will.This paper is the first to identify the right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This paper hopes to identify and illuminate the right to attention in hope to generate further discussion and exploration of this novel bundle of rights.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"71 1","pages":"9"},"PeriodicalIF":0.8,"publicationDate":"2015-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73361805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comprehensive Empirical Study of Data Privacy, Trust, and Consumer Autonomy","authors":"J. Kesan, C. Hayes, Masooda N. Bashir","doi":"10.2139/SSRN.2576346","DOIUrl":"https://doi.org/10.2139/SSRN.2576346","url":null,"abstract":"Modern society is driven by data. Data storage is practically unlimited with today’s technology, and analytical tools make it very easy to find patterns and make predictions in a way that is very useful for private businesses and governments. These uses of digital data also raise considerable privacy issues that are of great concern to consumers. In this article, we present and analyze the results of an extensive survey that we conducted to explore what people know, what people do, and what people want, when it comes to privacy online. Our survey is the first comprehensive examination of the intersection of knowledge and opinions among the survey participants concerning online privacy, law, and the data practices of both the private sector and the government. Our survey results indicate that consumers often want more options than the market gives them. Over 80% of our survey participants, for example, indicated that on some occasion they have submitted information online when they wished that they did not have to do so. One of the possible reasons why consumers still participate in these markets is that they do not have any meaningful alternatives. The private sector currently has very little incentive to provide these alternatives because consumers have been responding to unattractive business practices with complacency. Responses to our survey also indicate a low level of trust of the government as a data collector and data keeper. Our results indicate that significant changes are needed to increase consumer engagement in the online marketplace and improve trust between the government and its citizens. These improvements should begin by empowering users and giving them more control over their digital data, and we present ambitious proposals to this end. The long-term solution that we propose would involve an overhaul of current data privacy laws, and the creation of a profile clearinghouse that would serve a similar purpose as credit reporting bureaus. Through this clearinghouse, consumers could view and challenge most information that private businesses and the government hold about them. Dramatic changes are necessary in order to ensure that consumers can have empowering and engaging experiences in today’s world of digital data.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"48 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2015-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72524407","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance","authors":"Jeffrey L. Vagle, Jeffrey L. Vagle","doi":"10.31228/osf.io/3g85p","DOIUrl":"https://doi.org/10.31228/osf.io/3g85p","url":null,"abstract":"Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications — including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic communications is enough to give the NSA the right to store that data until it is able to decrypt or decode it.Through this provision, the NSA is automatically treating all electronic communications from U.S. citizens that are hidden or obscured through encryption — for whatever reason — as suspicious, a direct descendant of the “nothing-to-hide” family of privacy minimization arguments. The ubiquity of electronic communication in the United States and elsewhere has led to the widespread use of encryption, the vast majority of it for innocuous purposes. This Article argues that the mere encryption by individuals of their electronic communications is not alone a basis for individualized suspicion. Moreover, this Article asserts that the NSA’s policy amounts to a suspicionless search and seizure. This program is therefore in direct conflict with the fundamental principles underlying the Fourth Amendment, specifically the protection of individuals from unwarranted government power and the establishment of the reciprocal trust between citizen and government that is necessary for a healthy democracy.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"34 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2015-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78539032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}