Stanford Law Review最新文献

{"title":"Contemporary Voting Rights Controversies Through the Lens of Disability","authors":"R. Belt","doi":"10.2139/SSRN.2780693","DOIUrl":"https://doi.org/10.2139/SSRN.2780693","url":null,"abstract":"People with disabilities are the ticking time bomb of the electorate. An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers. We can consider voters with disabilities as “the canaries in the coal mine,” the people who are an advanced warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. Current debates about access to voting and voter restrictions often ignore the current legal landscape’s disparate effect on those with disabilities. The insights in this Article offer another angle of intervention towards ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability as well and moreover are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"68 1","pages":"1491"},"PeriodicalIF":4.9,"publicationDate":"2016-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68316999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum","authors":"Sarah Krakoff","doi":"10.2139/SSRN.2746166","DOIUrl":"https://doi.org/10.2139/SSRN.2746166","url":null,"abstract":"In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are not subject to heightened scrutiny. Yet this deferential approach has been subject to recent criticism and is currently being challenged in pending cases. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, courts and commentators question the distinction between tribes’ political and racial status, and urge courts to strike down child welfare and gaming laws that benefit tribes. Yet tribes (as collectives) must trace their heritage to peoples who preceded European/American settlement in order to establish the political relationship with the federal government. Tribes, in order to be recognized as such under the Constitution, therefore must, as an initial definitional matter, consist of people tied together by something akin to lineage. Descent and ancestry (often conflated with the socio-legal category of “race,”) are the difference between legitimate federal recognition of tribal status and unauthorized and unconstitutional acts by Congress. Congress, in other words, cannot establish a government-to-government relationship with just any group of people. Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America, and federal courts should not use that constitutional distinction against tribes in a misguided effort to eradicate all traces of things currently sounding in “race.”The argument advanced here might be seen as a form of American Indian law exceptionalism. Yet it is consistent with racial formation theory’s project of understanding race as a construction that serves, creates, and perpetuates legalized subordination, and that also shapes daily social conceptions and interactions. Racial formation theory calls for multiple accounts of racialization depending on the social and economic purposes served by each groups’ subordination. On the remedial side, racial formation theory therefore necessarily anticipates what we might think of as multiple exceptionalisms. Reversing policies that aimed to eliminate Native people from the continent, and the racialized understanding of Indians that drove them, requires maintaining the political status of tribes as separate sovereigns, not destroying it in the name of an ahistorical conception of “race” neutrality.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"69 1","pages":"491"},"PeriodicalIF":4.9,"publicationDate":"2016-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Material Facts in the Debate Over Twombly and Iqbal","authors":"Jonah B. Gelbach","doi":"10.2139/SSRN.2570943","DOIUrl":"https://doi.org/10.2139/SSRN.2570943","url":null,"abstract":"This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading’s case-quality effects -- a quintessential empirical question -- simply can't be answered using data.This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"68 1","pages":"369"},"PeriodicalIF":4.9,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2570943","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68208241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Speech-Facilitating Conduct","authors":"Jud Campbell","doi":"10.31228/osf.io/ctf7s","DOIUrl":"https://doi.org/10.31228/osf.io/ctf7s","url":null,"abstract":"Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law — restrictions on photography and audiovisual recording, limits on campaign contributions, putative news gathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray.This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases — including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees — is now out of step with current doctrine.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"68 1","pages":"1"},"PeriodicalIF":4.9,"publicationDate":"2016-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Three Tests for Practical Evaluation of Partisan Gerrymandering","authors":"S. Wang","doi":"10.2139/SSRN.2671607","DOIUrl":"https://doi.org/10.2139/SSRN.2671607","url":null,"abstract":"Since the United States Supreme Court’s Davis v. Bandemer ruling in 1986, partisan gerrymandering for statewide electoral advantage has been held to be justiciable. The existing Supreme Court standard, culminating in Vieth v. Jubelirer and LULAC v. Perry, holds that a test for gerrymandering should demonstrate both intents and effects, and that partisan gerrymandering may be recognizable by its asymmetry: for a given distribution of popular votes, if the parties switch places in popular vote, the numbers of seats will change in an unequal fashion. However, the asymmetry standard is only a broad statement of principle, and no analytical method for assessing asymmetry has yet been held by the Supreme Court to be manageable. This Article proposes three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts. The first test relies on computer simulation to estimate appropriate levels of representation for a given level of popular vote, and provides a way to measure the effects of a gerrymander. The second and third tests, which evaluate intent, rely on well-established statistical principles, and can be carried out using a hand calculator without examination of maps or redistricting procedures. I apply these standards to a variety of districting schemes, starting from the original “Gerry-manderˮ of 1812 up to modern cases. In post-2010 Congressional elections, partisan gerrymandering in a handful of states generated effects that are larger than the total nationwide effect of population clustering. By applying these standards in two recent cases, I show that Arizona legislative districts (Harris v. Arizona Independent Redistricting Commission) fail to qualify as a partisan gerrymander, but Maryland’s Congressional districts (Shapiro v. McManus) do. I propose that an intents-and-effects standard based on these tests is robust enough to mitigate the need to demonstrate predominant partisan intent. The three statistical standards offered here add to the judge’s toolkit for rapidly and rigorously identifying the effects of redistricting.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"68 1","pages":"1263-1321"},"PeriodicalIF":4.9,"publicationDate":"2015-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68249213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When Nicknames Were Crowdsourced: or, How to Change a Team's Mascot","authors":"Richard Craswell","doi":"10.2139/SSRN.2557870","DOIUrl":"https://doi.org/10.2139/SSRN.2557870","url":null,"abstract":"This essay is about who can change a sports team’s nickname. In fact, it’s mostly about history, and how teams’ control over their nicknames has changed over time. Most of the essay traces the history of six well-known football and baseball team nicknames, focusing on the years from (roughly) 1890 to 1930. The six case studies are: the Nebraska Cornhuskers, the Brooklyn Dodgers, the Michigan State Spartans, the Washington Senators, the Notre Dame Fighting Irish, and the Chicago Cubs.In addition, though, this essay is also about the future. A number of groups have asked Daniel Snyder, the owner of Washington’s pro football team, to change that team’s nickname. So far, Mr. Snyder has refused. My essay begins with a fictional account of how that nickname might conceivably be changed even without Mr. Snyder’s consent. That possibility may strike modern readers as strange – but in 1890, it would have seemed perfectly normal.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"67 1","pages":"1221"},"PeriodicalIF":4.9,"publicationDate":"2015-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rule of Probabilities: A Practical Approach for Applying Bayes' Rule to the Analysis of DNA Evidence","authors":"I. Ayres, B. Nalebuff","doi":"10.2139/SSRN.2549068","DOIUrl":"https://doi.org/10.2139/SSRN.2549068","url":null,"abstract":"Bayes’ rule is not being used to guide jury decision making in the vast majority of criminal cases introducing evidence of DNA testing. Instead of telling juries the “source probability,” the probability that the individual whose DNA matches was the source of the forensic evidence found at the crime scene, experts only present pieces of the puzzle. They provide the probability that a randomly selected innocent person would have a match or the expected number of innocent matches in the database. In some cases, the random match probability will be so low (one in a quadrillion) that the intuitive source probability is practically one hundred percent. But, in other cases, with large database trawls and random match probability at 1 in a million, jurors will have no ability to convert the random match probability or the likelihood ratio based on expected number of matches into relevant data that will help them address the question of guilt. This Article shows that a correct application of Bayes’ rule should lead fact-finders and litigants to focus on the size of two variables that influence the source probability: the probability that a non-source in the DNA database would have an alibi, and the probability that the source of the DNA is included in the database. This Article suggests practical means of estimating these two variables and argues that as a legal matter these parameters as well as the Bayesian posterior source probability are admissible in court. In particular, focusing on the prior probability that the “database is guilty,” i.e. the probability that someone in the database is the source of the forensic evidence, is not just analytically and empirically tractable, but avoids the evidentiary limitations concerning a particular defendant’s prior bad acts. Appropriate application of Bayes’ rule, far from preempting the fact-finding and adversarial process, can guide advocates to engage the important aspects of the evidence that are still likely to be open to contestation. Perhaps most important, appropriate application of Bayes’ rule will also allow jurors to reach verdicts via a coherent path that employs sound logic and reasoning.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"67 1","pages":"1447"},"PeriodicalIF":4.9,"publicationDate":"2015-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68200045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Communicating with vegetative state patients: the role of neuroimaging in American disability law.","authors":"Dalia B Taylor","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Patients in vegetative states appear to be awake but unconscious. If they have been in a vegetative state for more than one year, they have little chance of ever recovering. Additionally, no one can communicate with them, including physicians, loved ones, and families. However, new scientific evidence has challenged our understanding of this bleak reality. In particular, recent neuroscience research has shown that a substantial number of patients in vegetative states may actually be conscious and able to communicate through the use of brain-scanning technology. This exciting development poses many difficult questions, including the one analyzed here: now that we know neuroimaging may be the only way to communicate with these patients, will health care facilities be required to provide brain-scanning equipment under American disability law? This Note argues that lawsuits seeking neuroimaging technology from hospitals have a significant chance of success. The main challenge for plaintiffs will be convincing judges that existing scientific evidence actually shows that neuroimaging can facilitate communication with patients. Ultimately, if the appropriate legal framework develops, brain-scanning technology could permit patients in vegetative states to make decisions regarding their own medical care and allow families to communicate with their loved ones.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 6","pages":"1451-85"},"PeriodicalIF":4.9,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32487882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"God, Civic Virtue, and the American Way: Reconstructing Engel","authors":"C. Lain","doi":"10.31228/osf.io/fzhwp","DOIUrl":"https://doi.org/10.31228/osf.io/fzhwp","url":null,"abstract":"If ever a decision embodied the heroic, countermajoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer — Engel v. Vitale. Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the Supreme Court than perhaps any other decision in its history. Indeed, Engel’s countermajoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case. It does not. Using the lens of legal history, this Article reconstructs the story of Engel, then explores the implications of this reconstructed narrative. Engel is not the countermajoritarian case it seems, but recognizing what it is not allows us to see Engel for what it is: a remarkably thick account of Supreme Court decision-making that enriches a number of conversations in constitutional law. Engel adds a new strand to a burgeoning body of scholarship on the power of culture in general, and social movements in particular, to generate constitutional change. It presents a rare glimpse of the Justices explicitly engaging in the dialogic function of judicial review. And it exposes qualitative differences in the way popular constitutionalism might play out in practice, with implications for the theory itself. In the end, Engel is still a case that offers valuable insights about Supreme Court decision-making and the role of judicial review. They just aren’t the insights that conventional wisdom would have us think.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"77 1","pages":"479"},"PeriodicalIF":4.9,"publicationDate":"2014-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The modernization of American public law: health care reform and popular constitutionalism.","authors":"David A Super","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Patient Protection and Affordable Care Act (ACA) transformed U.S. public law in crucial ways extending far beyond health care. As important as were the doctrinal shifts wrought by National Federation of Independent Business v. Sebelius, the ACA's structural changes to public law likely will prove far more important should they become entrenched. The struggle over the ACA has triggered the kind of \"constitutional moment\" that has largely replaced Article V's formal amendment procedure since the Prohibition fiasco. The Court participates in this process, but the definitive and enduring character of these constitutional moments' outcomes springs from broad popular engagement. Despite the Court's ruling and the outcome of the 2012 elections, the battle over whether to implement or shelve the ACA will continue unabated, both federally and in the states, until We the People render a clear decision. Whether the ACA survives or fails will determine the basic principles that guide the development of federalism, social insurance, tax policy, and privatization for decades to come. In each of these areas, the New Deal bequeathed us a delicate accommodation between traditionalist social values and modernizing norms of economic efficiency and interest group liberalism. This balance has come under increasing stress, with individual laws rejecting tradition far more emphatically than the New Deal did. But absent broad popular engagement, no definitive new principles could be established. The ACA's entrenchment would elevate technocratic norms across public law, the first change of our fundamental law since the civil rights revolution. The ACA's failure would rejuvenate individualistic, moralistic, pre-New Deal norms and allow opponents to attempt a counterrevolution against technocracy.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"66 4","pages":"873-952"},"PeriodicalIF":4.9,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32347851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}