In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language. This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, ask the public. As a demonstration, the Article reports the results of a nationally representative survey of nearly 1500 jury-eligible laypeople. It tests the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in Title VII, the Hate Crimes Prevention Act, the Controlled Substances Act, and jury instructions in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage—patterns that squarely contradict the Court’s ordinary meaning determinations. The results also demonstrate that certain alternative causation standards, though rejected by the Court as inconsistent with ordinary linguistic, conceptual, and moral intuitions, come closer to tracking all three. These discoveries raise serious concerns about the outcomes in recent criminal and tort causation cases, and possibly about ordinary and plain meaning interpretation more broadly. After discussing the implications for causation doctrine and statutory interpretation, the Article considers whether similar experimental methodologies might shed light on additional interpretation controversies in criminal and tort settings, on theories of common law doctrinal development, and on philosophical analyses of causation in criminal and tort theory.
{"title":"Ordinary Causation: A Study in Experimental Statutory Interpretation","authors":"James Macleod","doi":"10.31234/osf.io/pdjb7","DOIUrl":"https://doi.org/10.31234/osf.io/pdjb7","url":null,"abstract":"In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language. This Article considers a novel approach to ordinary meaning statutory interpretation, using these recent causation cases as a proof of concept: To find how people would ordinarily construe statutory language in context, ask a lot of people to apply the disputed language, and observe what they do. In short, to find public meaning, ask the public. As a demonstration, the Article reports the results of a nationally representative survey of nearly 1500 jury-eligible laypeople. It tests the Supreme Court’s recent pronouncements about the ordinary meaning of causal language in Title VII, the Hate Crimes Prevention Act, the Controlled Substances Act, and jury instructions in similar criminal and statutory tort settings. The results reveal clear and consistent patterns of causal attribution and ordinary usage—patterns that squarely contradict the Court’s ordinary meaning determinations. The results also demonstrate that certain alternative causation standards, though rejected by the Court as inconsistent with ordinary linguistic, conceptual, and moral intuitions, come closer to tracking all three. These discoveries raise serious concerns about the outcomes in recent criminal and tort causation cases, and possibly about ordinary and plain meaning interpretation more broadly. After discussing the implications for causation doctrine and statutory interpretation, the Article considers whether similar experimental methodologies might shed light on additional interpretation controversies in criminal and tort settings, on theories of common law doctrinal development, and on philosophical analyses of causation in criminal and tort theory.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"34 1","pages":"957"},"PeriodicalIF":0.8,"publicationDate":"2019-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84837008","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":"Leave Bad Enough Alone","authors":"G. Simson","doi":"10.31228/osf.io/vr9zp","DOIUrl":"https://doi.org/10.31228/osf.io/vr9zp","url":null,"abstract":"75 Indiana Law Journal 649 (Spring 2000)","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"17 1","pages":"17"},"PeriodicalIF":0.8,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83009893","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}
This article argues that pharmaceutical marketing to doctors should be more critically considered as “alternative” facts and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court’s 2011 decision in Sorrell. This article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, should have a right to limit statements that may encourage doctors to prescribe unapproved use of drugs with potentially fatal consequences. This article reveals that this recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts and even some doctors themselves improperly assume that doctors are adequately sophisticated, such that they are protected from self-interested marketing, which this article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. Finally, this article builds upon the revealed cognitive biases to suggest empirically informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This article makes specific proposals to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, the burden of proof in such cases should also be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof from companies that they will actually promote more informed decisions. The article also suggests structural changes to medical education, drug development and marketing informed by the cognitive biases revealed here.
这篇文章认为，针对医生的药品营销应该被更严格地视为“另类”事实，应该受到较少的第一修正案保护，这与最高法院2011年索雷尔案(Sorrell)判决的趋势相反。这篇文章增加了一个重要的批评，基于认知偏见文献的存在和影响，迄今为止尚未在这一领域得到认可。如果法院完全接受这种理解，他们应该认识到，政府应该通过食品和药物管理局(Food and Drug Administration)，有权限制可能鼓励医生开出未经批准使用可能导致致命后果的药物的言论。本文揭示了最近第一修正案法理学的扩张是基于关键的认知偏见和假设。首先，法院甚至一些医生自己都错误地认为医生足够成熟，这样他们就可以免受自利营销的影响，这篇文章证明了这与现实不符。其次，当前的判例法假设，只要信息不是明显错误的，获得更多信息必然会促进更好的决策，这篇文章表明，这一命题在处方药的独特市场中尤其没有根据。重要的是，这种假设可能对健康造成严重后果，因为它们提倡使用往往缺乏科学依据和造成严重健康后果的药物。最后，本文以揭示的认知偏差为基础，提出了基于经验的变化建议，以扩大第一修正案对药品营销的保护以及更广泛的结构改革。本文提出了具体建议，将潜在的误导性信息与完全真实的言论区别对待，从而赋予各州更大的自由裁量权来监管潜在的误导性信息。此外，这类案件中的举证责任也应该颠倒，这样法院就不会再将免责声明视为言论限制的真正替代方案，除非公司提供证据证明免责声明实际上会促进更明智的决定。这篇文章还建议医学教育、药物开发和市场营销的结构性变化应受到这里所揭示的认知偏见的影响。
{"title":"A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection","authors":"Cynthia M. Ho","doi":"10.2139/SSRN.3152645","DOIUrl":"https://doi.org/10.2139/SSRN.3152645","url":null,"abstract":"This article argues that pharmaceutical marketing to doctors should be more critically considered as “alternative” facts and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court’s 2011 decision in Sorrell. This article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, should have a right to limit statements that may encourage doctors to prescribe unapproved use of drugs with potentially fatal consequences. \u0000 \u0000This article reveals that this recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts and even some doctors themselves improperly assume that doctors are adequately sophisticated, such that they are protected from self-interested marketing, which this article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. \u0000 \u0000Finally, this article builds upon the revealed cognitive biases to suggest empirically informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This article makes specific proposals to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, the burden of proof in such cases should also be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof from companies that they will actually promote more informed decisions. The article also suggests structural changes to medical education, drug development and marketing informed by the cognitive biases revealed here.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"47 6 1","pages":"1"},"PeriodicalIF":0.8,"publicationDate":"2018-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84818216","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}
The United States is in the midst of a driverless car revolution. Semi-autonomous cars — those that can steer, accelerate, and brake on their own under certain circumstances — are already available to consumers. Fully autonomous cars will be available within the decade. The federal government and states throughout the nation have responded to these developments by rushing to pass laws designed to regulate the fully autonomous cars that are coming while largely ignoring the semi-autonomous cars that are already on U.S. roads. This is an extremely troubling oversight. New studies suggest that semi-autonomous vehicles are likely far more dangerous than the fully autonomous vehicles being developed. Indeed, despite the fact that semi-autonomous vehicles rely on continuous human supervision to operate safely, a growing body of research demonstrates that drivers of semi-autonomous vehicles are highly prone to distraction and may have significant misunderstandings of the capabilities and limitations of these vehicles. Both the federal government and states should pass laws and regulations designed to address these safety issues. Namely, the federal government should: (1) grant the National Highway Transportation Safety Administration the ability to create and administer a pre-market approval system for autonomous vehicles, (2) require car manufacturers to install attention warning systems on semi-autonomous cars in order to minimize the risk of driver distraction, and (3) place restrictions on the ability of manufacturers to give the semi-autonomous features on their cars names like “Autopilot” that might mislead consumers as to their capabilities. States, in turn, should (1) forbid drivers from tampering with or disabling driver monitoring systems, (2) require owners of semi-autonomous cars to install routine over-the-air software updates that make these vehicles safer, and (3) mandate that drivers of these vehicles complete proper driver training.
{"title":"Hands on the Wheel: A Call for Greater Regulation of Semi-Autonomous Cars","authors":"Tracy Hresko Pearl","doi":"10.2139/SSRN.2930125","DOIUrl":"https://doi.org/10.2139/SSRN.2930125","url":null,"abstract":"The United States is in the midst of a driverless car revolution. Semi-autonomous cars — those that can steer, accelerate, and brake on their own under certain circumstances — are already available to consumers. Fully autonomous cars will be available within the decade. The federal government and states throughout the nation have responded to these developments by rushing to pass laws designed to regulate the fully autonomous cars that are coming while largely ignoring the semi-autonomous cars that are already on U.S. roads. This is an extremely troubling oversight. New studies suggest that semi-autonomous vehicles are likely far more dangerous than the fully autonomous vehicles being developed. Indeed, despite the fact that semi-autonomous vehicles rely on continuous human supervision to operate safely, a growing body of research demonstrates that drivers of semi-autonomous vehicles are highly prone to distraction and may have significant misunderstandings of the capabilities and limitations of these vehicles. Both the federal government and states should pass laws and regulations designed to address these safety issues. Namely, the federal government should: (1) grant the National Highway Transportation Safety Administration the ability to create and administer a pre-market approval system for autonomous vehicles, (2) require car manufacturers to install attention warning systems on semi-autonomous cars in order to minimize the risk of driver distraction, and (3) place restrictions on the ability of manufacturers to give the semi-autonomous features on their cars names like “Autopilot” that might mislead consumers as to their capabilities. States, in turn, should (1) forbid drivers from tampering with or disabling driver monitoring systems, (2) require owners of semi-autonomous cars to install routine over-the-air software updates that make these vehicles safer, and (3) mandate that drivers of these vehicles complete proper driver training.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"27 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2017-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79431239","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}
The greatest vectors of biodiversity loss in the Anthropocene epoch are climate change, habitat destruction, invasive species, pollution, population, and overkill. Perversely enough, the legal understanding of extinction mechanisms remains frozen in time, like a cave dweller in ice. Climate change, habitat destruction, and alien invasive species should figure more prominently than overkill and the marketing of products derived from endangered species. The law, however, imposes its clearest and harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. The Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change. Nevertheless, the law’s lack of congruence with conservation biology impedes efforts to preserve biodiversity and mitigate climate change.
{"title":"The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law","authors":"J. Chen","doi":"10.2139/SSRN.2862882","DOIUrl":"https://doi.org/10.2139/SSRN.2862882","url":null,"abstract":"The greatest vectors of biodiversity loss in the Anthropocene epoch are climate change, habitat destruction, invasive species, pollution, population, and overkill. Perversely enough, the legal understanding of extinction mechanisms remains frozen in time, like a cave dweller in ice. Climate change, habitat destruction, and alien invasive species should figure more prominently than overkill and the marketing of products derived from endangered species. The law, however, imposes its clearest and harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. The Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change. Nevertheless, the law’s lack of congruence with conservation biology impedes efforts to preserve biodiversity and mitigate climate change.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"6 1","pages":"2"},"PeriodicalIF":0.8,"publicationDate":"2016-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78699854","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}
This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists — the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide — the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.
{"title":"Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis","authors":"Shahar Dillbary, G. Edwards, Fredrick E. Vars","doi":"10.2139/SSRN.2816136","DOIUrl":"https://doi.org/10.2139/SSRN.2816136","url":null,"abstract":"This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists — the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide — the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"5"},"PeriodicalIF":0.8,"publicationDate":"2016-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84152522","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}
For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.
{"title":"Congress, Tribal Recognition, and Legislative-Administrative Multiplicity","authors":"K. Carlson","doi":"10.2139/SSRN.2619288","DOIUrl":"https://doi.org/10.2139/SSRN.2619288","url":null,"abstract":"For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"348 1","pages":"8"},"PeriodicalIF":0.8,"publicationDate":"2016-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76309940","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}
Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through custody determination, or bond, proceedings focused on the question of whether a migrant poses a flight risk or danger to the community. Yet, because the proceedings skip the critical inquiry into the need for detention before setting monetary bond requirements for release that are difficult to fulfill, freedom remains elusive.Custody determination proceedings are a cornerstone in the U.S. immigration detention edifice but have received scarce attention. Furthermore, the public debate on mass incarceration, which could meaningfully inform the discussion, generally ignores the reality of expansive immigration detention, including for pre-trial detainees who might be released. This Article takes up the task of critiquing the role and functioning of immigration custody determination proceedings, in part by joining together the conversations taking place in the immigration and criminal pre-trial realms. In this Article, I assert that immigration custody determination proceedings fail to preserve and protect the constitutional presumption of liberty applicable to all persons facing detention without a criminal conviction. The proceedings result in automatic detention without meaningful individualized consideration or review. Furthermore, they adopt elements from the criminal pre-trial system that are ill-suited to the immigration setting while failing to incorporate lessons learned in the criminal justice setting. Important considerations in the criminal justice context, such as the inadvisability of emphasizing monetary bond, do not make their way into immigration custody determination proceedings, with negative results for liberty. Given these realities, the Article both proposes normative changes to immigration custody determination proceedings and calls for additional research in order to rationalize the process. These reforms would realign the system with the limited purposes of immigration detention in order to protect liberty and avoid the significant human and societal costs associated with detaining individuals who might safely be released.
{"title":"To Loose the Bonds: The Deceptive Promise of Freedom from Pre-Trial Immigration Detention","authors":"D. Gilman","doi":"10.2139/ssrn.2737416","DOIUrl":"https://doi.org/10.2139/ssrn.2737416","url":null,"abstract":"Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through custody determination, or bond, proceedings focused on the question of whether a migrant poses a flight risk or danger to the community. Yet, because the proceedings skip the critical inquiry into the need for detention before setting monetary bond requirements for release that are difficult to fulfill, freedom remains elusive.Custody determination proceedings are a cornerstone in the U.S. immigration detention edifice but have received scarce attention. Furthermore, the public debate on mass incarceration, which could meaningfully inform the discussion, generally ignores the reality of expansive immigration detention, including for pre-trial detainees who might be released. This Article takes up the task of critiquing the role and functioning of immigration custody determination proceedings, in part by joining together the conversations taking place in the immigration and criminal pre-trial realms. In this Article, I assert that immigration custody determination proceedings fail to preserve and protect the constitutional presumption of liberty applicable to all persons facing detention without a criminal conviction. The proceedings result in automatic detention without meaningful individualized consideration or review. Furthermore, they adopt elements from the criminal pre-trial system that are ill-suited to the immigration setting while failing to incorporate lessons learned in the criminal justice setting. Important considerations in the criminal justice context, such as the inadvisability of emphasizing monetary bond, do not make their way into immigration custody determination proceedings, with negative results for liberty. Given these realities, the Article both proposes normative changes to immigration custody determination proceedings and calls for additional research in order to rationalize the process. These reforms would realign the system with the limited purposes of immigration detention in order to protect liberty and avoid the significant human and societal costs associated with detaining individuals who might safely be released.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"19 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2016-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88960531","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}
We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials are available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents. This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.
{"title":"Self-Help, Reimagined","authors":"D. Greiner, Dalié Jiménez, L. R. Lupica","doi":"10.2139/SSRN.2633032","DOIUrl":"https://doi.org/10.2139/SSRN.2633032","url":null,"abstract":"We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials are available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents. This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"19 1","pages":"6"},"PeriodicalIF":0.8,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81912537","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}
How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust. Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current application of the public use bar appears to privilege the confidentiality and control norms of industry while minimizing those no less strong norms common to lone entrepreneurs. This results in a general pattern: corporate inventors tend to whin their public use cases; solo entrepreneurs tend to lose them. As a result, the public use bar has unintended negative effects, including discouraging experimentation and discriminating against inventors without the financial backing of corporate employers. This project proposes a new way of talking about, thinking through, and determining when previous disclosures bar subsequent patentability. In short, I argue that patent disclosures in contexts of trust retain their legal protection despite any ostensible loss of control or lack of formal confidentiality agreements. This proposal respects social network differences and will advance the goals of patent law and increase access to the innovation economy for all persons.
{"title":"Trust: A Model for Disclosure in Patent Law","authors":"A. Waldman","doi":"10.2139/SSRN.2634573","DOIUrl":"https://doi.org/10.2139/SSRN.2634573","url":null,"abstract":"How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust. Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current application of the public use bar appears to privilege the confidentiality and control norms of industry while minimizing those no less strong norms common to lone entrepreneurs. This results in a general pattern: corporate inventors tend to whin their public use cases; solo entrepreneurs tend to lose them. As a result, the public use bar has unintended negative effects, including discouraging experimentation and discriminating against inventors without the financial backing of corporate employers. This project proposes a new way of talking about, thinking through, and determining when previous disclosures bar subsequent patentability. In short, I argue that patent disclosures in contexts of trust retain their legal protection despite any ostensible loss of control or lack of formal confidentiality agreements. This proposal respects social network differences and will advance the goals of patent law and increase access to the innovation economy for all persons.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"87 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2015-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81079588","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}
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