Indiana Law Journal最新文献

{"title":"Law School Rankings","authors":"R. Posner","doi":"10.2139/SSRN.703821","DOIUrl":"https://doi.org/10.2139/SSRN.703821","url":null,"abstract":"Rank ordering is a crude but economical method of conveying information that assists consumers (such as prospective law students) to make choices; hence the popularity of the law school rankings by U.S. News & World Report. However, the validity of USNWR's rankings are undermined by the arbitrary weights attached to the different factors on which the rankings are based. This paper explores a variety of alternatives, beginning with the mean LSAT score of the student body, and emphasizes that the design of a ranking system is relevant to the interest of the people whom the rankings are intended to guide. There is broad convergence of plausible systems of ranking law schools, but it is possible to improve on the USNWR rankings.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"2015 1","pages":"13"},"PeriodicalIF":0.8,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87096451","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":"Ranking Law Schools: A Market Test?","authors":"C. Sunstein","doi":"10.2139/SSRN.703282","DOIUrl":"https://doi.org/10.2139/SSRN.703282","url":null,"abstract":"Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may lead some or many students to make bad choices and thus to participate in the production of inaccurate rankings.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"2 1","pages":"25"},"PeriodicalIF":0.8,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89697280","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":"Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law","authors":"B. Priester","doi":"10.2139/SSRN.437222","DOIUrl":"https://doi.org/10.2139/SSRN.437222","url":null,"abstract":"The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"14 1","pages":"2"},"PeriodicalIF":0.8,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87391743","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 Quantitative Methodology for Determining the Need for Exposure-Prompted Medical Monitoring","authors":"C. P. Guzelian, B. Hillner, P. Guzelian","doi":"10.2139/SSRN.439220","DOIUrl":"https://doi.org/10.2139/SSRN.439220","url":null,"abstract":"Some toxic exposures to drugs or other environmental chemicals may create an increased risk of future disease for which periodic preventive medical screening might be desirable. However, many of these risks, even if unacceptable as a matter of public health policy, might still not be significant enough for medical monitoring (periodic diagnostic screening for latent illnesses or medical conditions) to be an appropriate medical intervention. This somewhat unintuitive, but statistically certain conclusion can be demonstrated in relatively simple mathematical terms. Accordingly, we introduce Bayes's Rule and decision analysis, a quantitative methodology commonly employed by medical practitioners. A review of current medical practices indicates that physicians decide whether to recommend monitoring for a particular exposed population by knowing the natural history of the disease and by first calculating the predictive value of a positive test (PPV), which will be one to five percent or greater for an endorsable monitoring exercise, absent exceptional circumstances. Rather than simply relying on the opinions of retained medical experts, this accessible quantitative method permits judges, jurists, and policymakers to more confidently and objectively decide whether medical monitoring is appropriate and necessary as a result of a specific chemical exposure.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"37 1","pages":"2"},"PeriodicalIF":0.8,"publicationDate":"2003-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75794272","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":"Getting Off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-Clever Congress Could Provoke it to Do so","authors":"Lynn A. Baker, Mitchell N. Berman","doi":"10.2139/SSRN.395222","DOIUrl":"https://doi.org/10.2139/SSRN.395222","url":null,"abstract":"The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"73 1","pages":"12"},"PeriodicalIF":0.8,"publicationDate":"2003-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86131873","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":"Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power","authors":"R. Post, Reva B. Siegel","doi":"10.2139/SSRN.378500","DOIUrl":"https://doi.org/10.2139/SSRN.378500","url":null,"abstract":"In Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts. This essay criticizes this \"juricentric\" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called \"statesmanship\" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5. In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"37 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2003-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74313112","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":"Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past","authors":"Evan H. Caminker","doi":"10.2139/SSRN.323222","DOIUrl":"https://doi.org/10.2139/SSRN.323222","url":null,"abstract":"Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional \"beyond reasonable doubt.\" In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a \"presumption of constitutionality.\" Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"72 1","pages":"5"},"PeriodicalIF":0.8,"publicationDate":"2002-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88011377","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":"10. When Memory Speaks: Remembrance and Revenge in Unforgiven","authors":"Austin D. Sarat","doi":"10.1515/9781400825387.236","DOIUrl":"https://doi.org/10.1515/9781400825387.236","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"176 1","pages":"236-259"},"PeriodicalIF":0.8,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74702692","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":"Making the Case for Megan’s Law: A Study in Legislative Rhetoric","authors":"D. Filler","doi":"10.2139/SSRN.266119","DOIUrl":"https://doi.org/10.2139/SSRN.266119","url":null,"abstract":"Floor speeches by legislators constitute an important body of legal rhetoric. This article studies the Megan's Law legislative floor debates in both the United States Congress and the New York state legislature. The article begins by setting out three practical purposes of legislative debate. First, it can influence voting decisions. Second, it educates and influences both the media and the voting public. Finally it provides a rich source of interpretive material for the judiciary. The article then sets out a naturalistic description of these speeches, comparing the two jurisdictions. Legislators in both Washington, DC and Albany argued for the new laws primarily by painting a grim picture of the status quo. They offered horrific accounts of individual child victimization, questionable statistical claims about the extent of the molestation and abduction crisis, and dehumanizing descriptions of child sexual offenders. Particularly within the U.S. Congress, legislators spent little time touting bills' virtues or rebutting the many possible criticisms of these controversial provisions. New York legislators, perhaps because of their greater political diversity, offered more nuanced critiques of the bills. The article then assesses legislators' rhetorical tropes and claims. Storytelling, for instance, presented both problems and benefits as a primary rhetorical tool for promoting the new social policy. And despite the apparent value of statistical proof, such empirical data was easily manipulated by savvy legislators. Many issues were underdeveloped during the Megan's Law debates. For example, while virtually all legislators spoke exclusively of white offenders and victims, legislators' rhetoric entirely excluded a discussion of the laws' likely disparate impact on African-Americans. Similarly, few legislators acknowledged that benefits of the law - if any were to be had - would flow almost entirely to suburban, and other low density, communities. Finally, the article considers how the Megan's Law debates educated the public, affected legislative voting, or shaped judicial interpretation of the bills. Because it concludes that the Megan's Law legislative debates did not optimally serve these three practical aims, the article evaluates new approaches to enriching the content of legislative debate. It argues that legislatures could appoint a public legislative advocate - the equivalent of a public defender, within the legislative context - or adopt new codes of debate. In any case, legislators should look for ways to improve and enhance the rhetoric of legislative debate.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"2"},"PeriodicalIF":0.8,"publicationDate":"2001-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83164992","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":"How Is International Human Rights Law Enforced","authors":"H. Koh","doi":"10.4324/9781315092492-10","DOIUrl":"https://doi.org/10.4324/9781315092492-10","url":null,"abstract":"liberal","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"22 1","pages":"9"},"PeriodicalIF":0.8,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83200820","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}