Indiana Law Journal最新文献

{"title":"The Sound of the Divine in Daily Life","authors":"Kristina Nelson","doi":"10.2307/jj.14799952.34","DOIUrl":"https://doi.org/10.2307/jj.14799952.34","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"310-314"},"PeriodicalIF":0.0,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147917950","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":"Superstatute Theory and Administrative Common Law","authors":"K. Kovacs","doi":"10.2139/SSRN.2386025","DOIUrl":"https://doi.org/10.2139/SSRN.2386025","url":null,"abstract":"This article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of deliberation that Eskridge and Ferejohn espouse, courts must adhere more closely to the compromises encoded in the statute’s text, paying particular attention to the context and history of each individual provision. Courts should hesitate before moving too far towards the boundaries of the text’s possible meaning. Venturing beyond those boundaries altogether is even more troubling. In the absence of an agency that spurs public deliberation about the meaning of the APA, administrative common law that contradicts or ignores the APA should be presumed to be illegitimate.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"18 1","pages":"8"},"PeriodicalIF":0.8,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75410260","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 with LSATs, Employment Outcomes, and Law Review Citations","authors":"A. Brophy","doi":"10.2139/SSRN.2456032","DOIUrl":"https://doi.org/10.2139/SSRN.2456032","url":null,"abstract":"This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools that improve and decline the most with the new ranking. This paper provides ranks for all 194 ABA accredited law schools that U.S. News included in its rankings released in 2014, including the 47 schools that U.S. News put in its “unranked” category.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"16 1","pages":"6"},"PeriodicalIF":0.8,"publicationDate":"2014-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88230263","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":"Dualism and Doctrine","authors":"D. Fox, Alex Stein","doi":"10.1093/acprof:oso/9780198743095.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198743095.003.0007","url":null,"abstract":"What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are \"mental\" or \"physical.\" The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action. This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"87 1","pages":"975"},"PeriodicalIF":0.8,"publicationDate":"2014-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75778982","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":"Evolving Values, Animus, and Same-Sex Marriage","authors":"Daniel O. Conkle","doi":"10.4324/9781315091464-6","DOIUrl":"https://doi.org/10.4324/9781315091464-6","url":null,"abstract":"Responding to Justice Scalia’s provocative questioning during oral argument in the same-sex marriage cases, I contend in this Essay that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that, in the words of Professor Alexander Bickel, the Court’s recognition of this right “will — in time, but in a rather immediate foreseeable future — gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible groundings for such a ruling: first, substantive due process; second, heightened-scrutiny equal protection; and third, rational-basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. In my judgment, however, the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"14 1","pages":"3"},"PeriodicalIF":0.8,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88965515","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":"Beneath the Surface of Civil Recourse Theory","authors":"Martha Chamallas","doi":"10.2139/SSRN.2304723","DOIUrl":"https://doi.org/10.2139/SSRN.2304723","url":null,"abstract":"This essay offers a progressive critique of civil recourse theory, arguing that Goldberg and Zipursky present too rosy a picture of contemporary tort law that misses the built-in bias embedded in many prevailing doctrines. A fundamental limitation of G and Z’s theory is that it takes no account of the importance of group identity in tort law’s historical construction of wrongs and injuries and fails to detect the skewing of interests that currently receive protection under the law. As classical legal theorists whose primary aim is to reveal the inner logic of tort law, G and Z make little attempt to theorize the impact of cultural polarization and differing perspectives on the complex body of U.S. tort law, suffer from a status quo bias, and are largely oblivious to the theoretical contributions of feminist and critical scholars. The main protagonist of civil recourse theory – the “empowered” individual who seeks vindication of his rights – is a fictional, privatized character who bears little resemblance to the many disempowered injured persons for whom tort law has yet to deliver on its promise of redress for harms suffered. The essay focuses on harms of subordination (domestic violence and sexual harassment), reproductive injury and relational injury as specific examples where civil recourse theory falls short of its goal of describing and explaining the contours of torts.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"65 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2013-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81174255","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":"FRAND's Forever: Standards, Patent Transfers, and Licensing Commitments","authors":"J. Kesan, C. Hayes","doi":"10.2139/SSRN.2226533","DOIUrl":"https://doi.org/10.2139/SSRN.2226533","url":null,"abstract":"The Internet, computing, and telecommunications industries are ripe for a collision between the worlds of intellectual property and standardization. Many technologies in these industries are covered by patents, and some of these patented technologies are essential to standards necessary for interoperability. Many standard-setting organizations (SSOs) adopt IP rules that require participants in the standard-setting process to disclose essential patents or promise to license essential patents on fair, reasonable, and nondiscriminatory (FRAND) terms to implementers of the standard. However, many SSOs also state that the SSO will not get involved in licensing disputes. Thus, it is left to the patent owner and the implementer of the standard to work through their differences, which sometimes results in generalist judges resolving cutting edge technology issues with potentially far-reaching impacts on consumers.We examine the theoretical foundations of FRAND commitments and analyze recent case law to expose the limited ways that theories grounded in patent, antitrust, and contract can apply to problems concerning the FRAND commitment. We note that a contract-based theory offers a good approach in many situations, but there are significant limitations to contract theory as applied to FRAND commitments. In particular, contract theory fails to effectively address the problem of enforcing FRAND commitments after an essential patent has been transferred.In this Article, we propose a novel theory for applying property law to FRAND commitments. As recent work by Merrill and Smith on the property and contract interface demonstrates, there are a number of areas of law that cannot be characterized as purely “in rem” or “in personam,” and in our view, this includes patents in the context of standards. Our property approach thus emphasizes the FRAND commitment as creating something analogous to a servitude under real property law, but our approach also acknowledges the importance of contract law principles to address many other issues.To preserve the viability of FRAND commitments, we have two main recommendations: (1) courts should view FRAND commitments as having traits of both property and contract and apply our proposed theory that FRAND commitments create a servitude that runs with the patent; and (2) courts and adjudicative agencies should reject efforts to impose injunctions on the use of essential patents when the infringer must use the patent to comply with the standard. Injunctions against the use of SEPs could have more harmful effects on consumers and competition than injunctions against the use of non-SEPs, and by making a FRAND commitment, the patent owner is stating that damages would be adequate to compensate for a loss of exclusivity. We thus urge courts to view a FRAND commitment as converting a property rule into a liability rule. If these two recommendations are adopted, companies that manufacture products that conform to technical standards wi","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"121 1","pages":"10"},"PeriodicalIF":0.8,"publicationDate":"2013-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77093582","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":"Reviving Implied Confidentiality","authors":"Woodrow Hartzog","doi":"10.2139/SSRN.2126269","DOIUrl":"https://doi.org/10.2139/SSRN.2126269","url":null,"abstract":"The law of online relationships has a significant flaw-it regularly fails to account for the possibility of an implied confidence. The established doctrine of implied confidentiality is, without explanation, almost entirely absent from online jurisprudence in environments where it has traditionally been applied offline, such as with sensitive data sets and intimate social interactions.Courts' abandonment of implied confidentiality in online environments should have been foreseen. The concept has not been developed enough to be consistently applied in environments such as the Internet that lack obvious physical or contextual cues of confidence. This absence is significant because implied confidentiality could be the missing piece that helps resolve the problems caused by the disclosure of personal information on the Internet.This Article urges a revival of implied confidentiality by identifying from the relevant case law a set of implied confidentiality norms based upon party perception and inequality that courts should be, but are not, considering in online disputes. These norms are used to develop a framework for courts to better recognize implied agreements and relationships of trust in all contexts.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"176 1","pages":"6"},"PeriodicalIF":0.8,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86596928","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":"Got Sun?","authors":"Carolyn Harstad","doi":"10.2979/6259.0","DOIUrl":"https://doi.org/10.2979/6259.0","url":null,"abstract":"Effortless plants for the sunny side of your garden","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147906268","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":"Historic Preservation in Indiana","authors":"Nancy R. Hiller","doi":"10.2979/6002.0","DOIUrl":"https://doi.org/10.2979/6002.0","url":null,"abstract":"Visit the author's <a href=\"http://ahomeofherown.wordpress.com/\">blog</a>","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147888609","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}