Washington and Lee law review最新文献

{"title":"How the Supreme Court Delivers Fire and Ice to State Criminal Justice","authors":"R. Wright","doi":"10.2139/SSRN.319143","DOIUrl":"https://doi.org/10.2139/SSRN.319143","url":null,"abstract":"The Warren Court left for us an irresistible case study in legal change, particularly for the criminal justice field. In this essay, I begin with this unsurprising proposition: the Warren Court introduced more changes into the criminal justice system than its predecessors. Then the essay takes an institutional turn, looking more at the makers of criminal justice than at the end product. Who carried out the changes that the Warren Court began? How have other legal institutions, particularly state appellate courts and legislatures, responded to the environment of massive change that the Supreme Court created? The question looks past the merits of any particular case that created flux. Instead, I ask more generally about an atmosphere where major change became the norm. In the generations that followed the Warren Court era, state institutions embraced change. The Supreme Court's habit of constant tinkering with the machinery of criminal justice spread to the state level. This is one of the major institutional legacies of the Warren Court in criminal justice. The Warren Court was fire: turning a solid situation into a fluid one, creating movement, causing chemical reactions. Since 1969, other institutions have changed their habits to deal with this more fluid world of criminal justice. The presence of these lively institutions at the state level is an ironic legacy for the Warren Court. The Warren Court is known as an enemy of federalism. But the long-term effects of Warren Court decisions in criminal justice left us with an unexpectedly vibrant federal system. State actors turned into reality many parts of the Warren Court's vision that the Court itself only defined in the abstract. The Rehnquist Court, on the other hand, has become ice. State courts and legislatures have discovered their authority to interpret state constitutions to place their own brand of restrictions on government actors. In response to these innovations in state courts and legislatures, the Rehnquist Court's most famous and emblematic decisions today have the effect of ice. They slow down and freeze into place once ran more freely. Thus, the Rehnquist Court also finds itself in an ironic position when it comes to federalism in criminal justice. Although the Justices often speak warmly of the benefits of variety in state criminal justice systems, sometimes their decisions snuff out variety in the states. This icy effect does not flow from every Rehnquist Court opinion on criminal justice. Sometimes state courts continue to pursue a variety of approaches to a question, even after the Supreme Court speaks and throws its support behind one approach. I close this essay with a few observations about this puzzle: what features of the cases explain why some Rehnquist Court opinions, and not others, function like ice among the state courts?","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"59 1","pages":"1429"},"PeriodicalIF":0.0,"publicationDate":"2002-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68570726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privatization: Not the Answer for Social Security Reform","authors":"Regina T. Jefferson","doi":"10.2139/ssrn.281692","DOIUrl":"https://doi.org/10.2139/ssrn.281692","url":null,"abstract":"Introduction As Social Security faces financial difficulties, few would argue that the program is not in need of change.1 However, there is much less consensus about the manner and degree of change required.2 Most proposals that have emerged in the Social Security reform debate involve three basic concepts: pre-funding, investment diversification, and privatization.3 Although these concepts are frequently considered interdependent, they are actually separate and distinct. Pre-funding refers to the requirement that there be sufficient assets accumulated in the trust fiend in advance to pay for future retirement costs.4 Diversification describes an investment strategy that allocates Social Security reserve funds among different investment alternatives.5 Privatization pertains to the creation of individual accounts owned and managed by workers, very much like the accounts of 401 (k) defined contribution plans.6 Privatization proposals generally are based on either a \"carve out\" or \"add on\" approach.7 The add on approach funds the individual accounts with new Social Security contributions, whereas the carve out approach diverts portions of current contributions to fund the individual accounts.8 Pre-funding and diversification could be implemented under the existing structure of Social Security; however, privatization radically changes boththe structure and character of the existing program. Furthermore, the carve out model of privatization presents a questionable trade-off.9 On the one hand, workers will have greater investment freedom in a privatized system; on the other, they will be exposed to significantly greater risks. Thus, Social Security privatization has potentially serious implications for retirement income security to the extent that it relies on current contributions.10 For this reason, privatization is the focus of much of the Social Security reform debate and is the subject of this Article. Specifically, this Article analyzes the impact of privatization on the existing Social Security program. Part I describes the structure and status of the current Social Security program. Part 11 describes the principal elements of Social Security reform proposals. Part III critiques the private retirement system and its reliance on individual accounts as primary retirement savings vehicles, and demonstrates why this model is inappropriate as a replacement for the existing Social Security program. Part IV explores the impact of privatization on the public welfare function of Social Security and examines some of the weaknesses in many of the privatization proposals. The Article concludes that privatization is a questionable solution for the Social Security debate. Therefore, as policymakers take steps toward implementing a privatized system, they should be mindful of the primary objectives of the existing Social Security program and the relationship of these goals to present societal conditions. …","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"58 1","pages":"1287"},"PeriodicalIF":0.0,"publicationDate":"2001-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68351023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Security: The Broader Issues","authors":"C. E. Steuerle","doi":"10.2139/SSRN.282318","DOIUrl":"https://doi.org/10.2139/SSRN.282318","url":null,"abstract":"In this paper, the author argues that the primary Social Security \"issue\" is not how to design that particular system for retirees 50 or 75 years hence. Instead the broader question is whether the federal government budget can be adaptable enough over time to best meet the needs of all people over the next 50 or 75 years. Right now, Social Security and other elderly programs have large amounts of growth built into them in fairly rigid ways. Legislators simply cannot create systems with that much built-in growth without having impacts far beyond the systems themselves. This paper analyzes three major areas affected by the existing structure of growth in elderly programs. The first is the budget. Built-in growth does not just affect future budgets; it is already a major factor affecting current budget battles. The second is the labor force. Social Security induces people to retire at what now must be considered late middle age. If that trend continues as the baby boom generation retires, there will be a significant reduction in the percentage of the adult population that will be working. The third is the needs of the elderly. Because legislators have set growth patterns in ways that are acclimated to deal with problems as perceived in the past, the system has become less targeted toward the most pressing problems of the elderly themselves. In particular, for each additional dollar of expenditures it makes, Social Security is targeting smaller and smaller shares of benefits to either the older or the more needy among the elderly. By predetermining growth rules, however, change is hard to make. The structure of the existing system confronts politicians with the dilemma of reneging on some set of promises if they want to make the system better at meeting its basic purposes. What we face as a society is a much broader question of how well we are going to allocate scarce resources to meet the most important needs of our nation. Demographic changes have merely forced this issue to the fore, but they would be there to some extent anyway. The issue plays itself out in the three topics discussed here: the current and future allocation of the federal budget and how those allocations are affected by automatic built-in growth of a few major programs; the extent of future labor force participation by adults and how current institutional structures may be blocking a very natural movement toward work by what will soon be a very large stock of older - but not necessarily old - people with significant capabilities; and the continual allocation of decreasing shares of the elderly budget away from those elderly with the greatest needs.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"58 1","pages":"1235"},"PeriodicalIF":0.0,"publicationDate":"2001-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68356987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Erisa Protections Provide Guidance for Social Security Privatization","authors":"Ian D. Lanoff, Roberta J. Ufford","doi":"10.2139/SSRN.281694","DOIUrl":"https://doi.org/10.2139/SSRN.281694","url":null,"abstract":"This article discusses legal means to minimize investment risk if individual accounts are added to Social Security. It describes current fiduciary standards in the Employee Retirement Income Security Act of 1974 (\"ERISA\") that apply to private pension plans transferring investment responsibility to participants. It argues that rulings and regulations issued by the Department of Labor under ERISA provide a model of \"best practice\" for individual accounts under Social Security. It also suggests that such protective measures could be implemented by a Board of Trustees with fiduciary duties and responsibilities, such as the Federal Thrift Savings Board that oversees the Thrift Savings Plan, the individual account plan for federal employees, or the State Board of Administration that will implement the recently established individual account plan, the Public Employee Optional Retirement Program, for state employees in Florida. Or, if the Board approach is deemed unacceptable, responsibility for implementing these protective measures could be assigned to an existing or newly created federal agency.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"51 1","pages":"1353"},"PeriodicalIF":0.0,"publicationDate":"2001-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68350780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Security Reform Issues","authors":"C. Copeland","doi":"10.2139/SSRN.281679","DOIUrl":"https://doi.org/10.2139/SSRN.281679","url":null,"abstract":"The Social Security Program has traditionally been a strongly supported and popular program for providing income protection for workers and their dependents from old-age, death, and disability. Social Security by most accounts has been a successful program, particularly in helping to lower the poverty rate for the elderly from 35.2 percent in 1959 to 10.5 percent in 1998. However, the program is currently projected to be facing a financial shortfall. Consequently, a push to reform the program has been under way in some circles. This paper examines the issues facing the Social Security program that has brought about the discussion to reform the program. In addition, various potential reform ideas and the issues surrounding those reform proposals will be investigated. Both traditional types of reforms, e.g., benefit cuts and tax increases, and privatization are considered.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"58 1","pages":"1203"},"PeriodicalIF":0.0,"publicationDate":"2001-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68350484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Violence Risk Assessment: Scientific Validity and Evidentiary Admissibility","authors":"J. Monahan","doi":"10.1037/10523-069","DOIUrl":"https://doi.org/10.1037/10523-069","url":null,"abstract":"I. Introduction Violence risk assessment is a critical and expanding part of the practice of mental health law in the United States. \"Dangerousness to others\" first became one of the pivotal criteria for involuntary hospitalization of people with mental disorders in the 1960s.(1) Courts first imposed tort liability on clinicians who negligently failed to predict their patients' violence in the 1970s.2 In the 1980s, many states statutes enacted statues authorizing involuntary tWa the other method relies on as informal, \"in the head,\" impressionistic, subjective conclusion, reached ... by a human clinical judge.8 The latter is called the clinical approach and the former the actuarial approach. I will consider each in turn. A. Clinical Approaches to Risk Assessment I reviewed research on the accuracy of clinical judgments at predicting the criterion of \"violent behavior toward others\" in 1981.9 The research concluded that \"psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it) and who were diagnosed as mentally ill.\"10 Remarkably, only one study of the validity of clinicians at predicting \"violence in the comunity\" was published between 1979 and 1993.(11) This was a study of court-ordered pretrial mental health assessments conducted in 1978.(12) Consistent with the previous literature, 39% of the defendants rated by clinicians as having a \"high\" likelihood for being violent to others were reported to have committed dangerous acts during a two-year follow-up, compared to 26% of defendants considered as having a \"low\" likelihood, a statistically significant difference.13 In the last decade, researchers have shown a renewed interest in the topic of clinical risk assessment.14 For example, Lidz, Mulvey, and Gardner, in what is surely the most sophisticated study published on the clinical prediction of violence, took as their subjects male and female patients being examined in the acute psychiatric emergency room of a large civil hospital. …","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"57 1","pages":"901"},"PeriodicalIF":0.0,"publicationDate":"2000-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57489539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Better off dead than disabled?: should courts recognize a \"wrongful living\" cause of action when doctors fail to honor patients' advance directives?","authors":"A A Milani","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"54 1","pages":"149-228"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25679448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Physician-patient sexual contact: the battle between the state and the medical profession.","authors":"T J Dobash","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"50 4","pages":"1725-59"},"PeriodicalIF":0.0,"publicationDate":"1993-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26083792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is it possible to take both fetal life and women seriously? Professor Laurence Tribe and his reviewers.","authors":"S Calhoun, A E Sexton","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"49 2","pages":"437-86"},"PeriodicalIF":0.0,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24847296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Burger Court","authors":"L. Powell","doi":"10.2307/j.ctt15hvrfx.13","DOIUrl":"https://doi.org/10.2307/j.ctt15hvrfx.13","url":null,"abstract":"","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"44 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"1987-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68702375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}