Indiana Law Journal最新文献

{"title":"The Decisions of Corporate Special Litigation Committees: An Empirical Investigation","authors":"M. Myers","doi":"10.2139/ssrn.1119942","DOIUrl":"https://doi.org/10.2139/ssrn.1119942","url":null,"abstract":"This Article examines the decisions of corporate special litigation committees using an original data set gathered from company filings with the SEC. It demonstrates that the prevailing view in corporate law - that special litigation committees uniformly decide to dismiss derivative litigation against manager colleagues - is not accurate. This Article shows that approximately forty percent of the time special litigation committees decide to settle claims or pursue them against one or more defendants. Furthermore, approximately seventy percent of the time cases subject to control by a special litigation end in settlement; only approximately twenty percent of the time is the end result dismissal. What has long been viewed as an engine for having derivative litigation dismissed actually leads to settlements most of the time. The view that special litigation committees behave too predictably has underwritten doubts about the ability of independent and disinterested directors to police conflict of interest transactions generally. The findings presented here show that the prevailing view about special litigation committee behavior is an unsound basis for generalizing about how independent and disinterested directors behave.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2008-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82132903","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 Lost Meaning of the Jury Trial Right","authors":"Laura I. Appleman","doi":"10.2139/SSRN.1084960","DOIUrl":"https://doi.org/10.2139/SSRN.1084960","url":null,"abstract":"Apprendi and Blakely instigated a tremendous revolution in criminal procedure. These \"number 10 earthquake[s]\" have caused a massive rethinking of sentencing law and policy. Until now, however, there has been only meager historical and scholarly support for the keystone of the Court's sentencing decisions: the scope, meaning and provenance of the jury trial right. In response, this Article provides the missing historical and constitutional justification for the Court's fidelity to the jury. In doing so, I will show that the original jury trial right was a community right, not an individual one as we currently envision it. Part of the difficulty the Court has faced with its championing of jury rights is due to the Constitution's two criminal jury clauses, each seemingly addressing a different right. The first, in the Constitution proper, reads like a collective right, or a right of the people: \"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.\" The second, in the Bill of Rights, reads like a right of the accused: \"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.\" Until quite recently, the Court consistently emphasized the second, defendants-right version of the jury trial right. Modern scholarship is gradually rediscovering the first, with Akhil Amar in particular emphasizing that the right has a collective dimension. My article goes further still. I will claim that even the Sixth Amendment jury trial right, which sounds grammatically like a right of the accused, is actually a restatement of the collective right in Article III. My original historical research confirms that the jury trial right in Article III was strictly a collective right, as its grammar suggests. But the central claim of this Article is that nothing in the Sixth Amendment was meant to change this historical understanding and confer an individual right on defendants. Our understanding of the jury trial right as an extension of the defendant's individual liberties came later, and with a much different gloss.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2008-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79557365","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":"No Boy Left Behind? Single-Sex Education and the Essentialist Myth of Masculinity","authors":"D. Cohen","doi":"10.4324/9781315581675-20","DOIUrl":"https://doi.org/10.4324/9781315581675-20","url":null,"abstract":"In late 2006, the Department of Education changed the Title IX regulations to broaden the permissibility of single-sex education in primary and secondary schools. The changes took place in the context of a growing concern over the performance and well-being of boys in American schools. This article describes, dissects, and critically analyzes the narrative about boys, masculinity, and single-sex education that surrounded these changes.The public narrative about the need for single-sex education focused, in substantial part, on what I call the essentialist myth of masculinity. This article catalogs the important components of this myth: heteronormativity, aggression, activity, sports-obsession, competitiveness, stoicism, and not being girls. The article then shows, using education and gender theory, that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls).The article argues that the Title IX regulatory change that allows for the expansion of single-sex schooling can actually work to further empower and entrench the essentialist myth of masculinity, thus violating its own prohibition on sex stereotyping. By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2008-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88296793","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 Comparison of Soviet and American Law","authors":"H. J. Berman","doi":"10.1111/J.1744-1714.1963.TB01183.X","DOIUrl":"https://doi.org/10.1111/J.1744-1714.1963.TB01183.X","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2007-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85103927","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 Impact of Popular Culture on American Perceptions of the Courts","authors":"D. Papke","doi":"10.2139/SSRN.1005385","DOIUrl":"https://doi.org/10.2139/SSRN.1005385","url":null,"abstract":"After a brief introduction defining popular culture as the commodities and experiences produced by the culture industry for mass audiences, this essay explores the impact of court-related popular culture on what Americans think of and expect from their courts. The Perry Mason effect from an earlier era and the CSI effect from the present are noted, as is scholarly work by Michael Asimow, Philip T. Dunwoody, Kimberlianne Podlas, Victoria S. Salzmann, and others. The essay concludes with suggestions for what might be done in the courthouse, the community, and the family room to control the impact of court-related popular culture on American legal consciousness.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85476815","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":"Children as Witnesses: A Symposium on Child Competence and the Accused’s Right to Confront Child Witnesses","authors":"Aviva A. Orenstein","doi":"10.2139/SSRN.1551364","DOIUrl":"https://doi.org/10.2139/SSRN.1551364","url":null,"abstract":"The rules of evidence provide a mechanism for sorting through the mass of information that could be presented at trial, winnowing irrelevancies, and excising potentially distracting or unfairly prejudicial material. They also reflect basic tenets about how the finder of fact determines truth. For instance, the rules shield the jury from, or at least alert it to, some potentially unreliable sources. Most importantly for the purposes of this symposium, the evidence rules reflect and perpetuate deeply-held notions of who is sufficiently trustworthy to serve as a witness. The rules control who may testify, what the witnesses may say, and what sorts of questions may be asked of the witnesses on cross-examination.The scholars in this symposium address these questions from different angles, bringing to bear history, psychology, and a careful analysis of the recent Supreme Court cases on confrontation. They address five important themes: (1) the special status and rights of children as witnesses; (2) ways in which the special case of child witnesses illuminates contradictions, ambiguities, unresolved questions, and the unfortunate tendency towards all-or-nothing thinking in recent Supreme Court Sixth Amendment jurisprudence; (3) practical suggestions for balancing the interests of child witnesses and the rights of the accused in criminal cases; (4) an inquiry into the fate of pre-Crawford cases, most importantly Maryland v. Craig;2 and (5) a critique of the uses and abuses of historical research by the Supreme Court in its attempt to address issues of confrontation.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86191800","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":"Of Rules and Standards: Reconciling Statutory Limitations on \"Arising Under\" Jurisdiction","authors":"Richard D. Freer","doi":"10.2139/SSRN.946036","DOIUrl":"https://doi.org/10.2139/SSRN.946036","url":null,"abstract":"The Supreme Court has imposed two significant filters on the invocation federal question jurisdiction: the well-pleaded complaint rule and the centrality requirement. Centrality seeks to determine whether the plaintiff's claim is federal enough to justify jurisdiction. The Court sent inconsistent signals on centrality in the first third of the twentieth century, and left the issue alone for fifty years. When it returned to it in 1986, the Court created great confusion, particularly regarding whether a state-created claim can invoke federal jurisdiction. The confusion reflected disagreement about whether to employ a rigid rule espoused by Justice Holmes or a flexible standard to assess centrality. In 2005, in Grable, the Court resolved several important issues left open by earlier cases. Still, a concurring opinion in Grable and scholarly commentary favor a return to the Holmes test. This Article suggests that confusion over centrality stems from divergent views of the purpose of federal question jurisdiction. The Holmes test reflects the view that jurisdiction serves only to provide a federal forum to vindicate federally-created rights. The more flexible approach reflects a broader view that jurisdiction also must provide access to a federal trial forum for the interpretation of federal law. The broader view is consistent with contemporary reality that caseload burdens make it impossible for the Supreme Court to discharge a unifying interpretive function through its appellate jurisdiction over state-court cases. Moreover, the Holmes test does not permit courts to assess litigation reality and thus replicates a shortcoming of the well-pleaded complaint rule. Grable properly brings clarity to the centrality inquiry by espousing a vision of why we have federal question jurisdiction.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2006-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80147301","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":"Regulating the Commander in Chief: Some Theories","authors":"S. Prakash","doi":"10.2139/SSRN.2857450","DOIUrl":"https://doi.org/10.2139/SSRN.2857450","url":null,"abstract":"Recent events have caused scholars to consider a long ignored issue: the relation between the commander in chief (CINC) and Congress's powers to regulate the armed forces and captures. The famous Bybee memorandum brought this issue to the fore when it asserted that Congress could not interfere with \"the President's direction of such core war matters such as the detention and interrogation of enemy combatants. The memo's critics scoffed at this claim, insisting that Congress may regulate the detention of enemy soldiers. With their articles in this issue, Dean Harold Koh, Neil Kinkopf, and others have added their voices to the clamor against the Bybee memo.Although one might generate any number of theories about the interaction of the Commander in Chief Clause and Congress's war regulatory powers, four seem most plausible. This essay sketches these theories with sufficiently broad strokes that none of these sketches will satisfactorily answer questions about who may regulate certain aspects of a war. In particular, these theories will tell us nothing about whether the Bybee memo or its critics have the better argument about whether Congress can limit the CINC's ability to order coercive interrogation techniques.First, it is possible to suppose that congressional and presidential powers do not overlap at all. A second thesis (the Coterminous Thesis) posits that the powers are coterminous, or at least largely so. A third possibility is what we might call the Partial Overlap. It is possible to suppose that the two powers overlap in some ways, but that each also has an exclusive sphere. The final theory posits that the President has all the powers that Congress has and more, but when Congress acts in its more limited sphere, its rules always trump the President's. Arguments about the structural Constitution that seek to further a particular moral view are likely to be utterly feckless. Torture may be an evil necessary for the successful prosecution of war against Al-Qaeda, or an unspeakable act that benefits absolutely no one. Whatever it is, these difficult moral questions have little to do with whether the Constitution enables the President to order the use of coercive interrogation techniques in the face of a statute that prohibits such means.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89326184","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":"Toward a Unified Test of Personal Jurisdiction in an Era of Widely Diffused Wrongs: The Relevance of Purpose and Effects","authors":"C. Floyd, Shima Baradaran","doi":"10.2139/SSRN.1516163","DOIUrl":"https://doi.org/10.2139/SSRN.1516163","url":null,"abstract":"The prevalence in modern society of widely diffused wrongs committed by the transmission of information, whether by traditional means or over the Internet, has placed increasing strain on traditional concepts of personal jurisdiction. While the Supreme Court has stayed above the fray, lower federal and state courts struggle to apply older formulations in new contexts. The problems are varied and difficult, leading to closely divided opinions and debatable results and raising new issues of appropriate limits on the sovereign power of the states and fairness to the parties. Courts confronting these and similarly difficult issues of personal jurisdiction in the context of actions for defamation, copyright infringement, unfair competition, and other wrongs having potentially widely dispersed effects have evidenced considerable confusion over what jurisdictional test should be applied in such cases and over the proper interpretation of those tests in new contexts with which they were not designed to deal. No commentator has yet reconciled the various tests, adequately explained the relationship among them, or clearly described the context in which each test should apply. After exploring the confusion created by these various tests, we argue instead for a unified test for personal jurisdiction based on an objective evaluation of the defendant’s activities with regard to the forum state.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84976037","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":"Eating Our Cake and Having It, Too: Why Real Change is so Difficult in Law Schools","authors":"N. Rapoport","doi":"10.2139/SSRN.703843","DOIUrl":"https://doi.org/10.2139/SSRN.703843","url":null,"abstract":"This essay discusses the experiences of one law school trying to integrate the rankings into its strategic plan. It discusses the intersection of considerations designed to improve the rankings with considerations designed to improve the school as a whole, and it mentions the difficulties inherent in strategic planning in an academic environment.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2005-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73346240","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}