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.
{"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":null,"pages":null},"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}
Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible — so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation on the federal government that protected state power, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights — indeed, that attempts to show that it does are laughableThis purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of Reconstruction history. They also undermine the Clause’s vigorous application against the states and place the Court’s anti-establishment decisions under a cloud of illegitimacy.This Essay sets forth logical, textual, and historical justifications for Establishment Clause incorporation based on the original eighteenth-century understanding of the Clause as a purely structural limitation on federal power. The Establishment Clause did not reserve state power, but disabled congressional action. As an express disability on Congress, the Clause generated two immunities, one held by the states against congressional interference with state decisions about religious establishment or disestablishment, and one held by the people against congressional establishment of a national religion.As part of Reconstruction’s imposition of new federal limits on state power, the Fourteenth Amendment extinguished the state immunity from federal interference, but extended the personal immunity to protect the people against state as well as federally established religions. This is logically coherent in the context of Reconstruction’s goals and also sounds in the personal liberty and citizen immunities protected by the text of the Fourteenth Amendment. When framed by a logical and textual account of Establishment Clause incorporation, Reconstruction history suggests an originalist account that the Fourteenth Amendment applied the Establishment Clause to the states.Incorporation of the Establishment Clause, therefore, is eminently defensible. Its justifications require more careful consideration by courts and commentators than they have yet received.
{"title":"Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account","authors":"F. M. Gedicks","doi":"10.2139/SSRN.1997807","DOIUrl":"https://doi.org/10.2139/SSRN.1997807","url":null,"abstract":"Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible — so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation on the federal government that protected state power, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights — indeed, that attempts to show that it does are laughableThis purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of Reconstruction history. They also undermine the Clause’s vigorous application against the states and place the Court’s anti-establishment decisions under a cloud of illegitimacy.This Essay sets forth logical, textual, and historical justifications for Establishment Clause incorporation based on the original eighteenth-century understanding of the Clause as a purely structural limitation on federal power. The Establishment Clause did not reserve state power, but disabled congressional action. As an express disability on Congress, the Clause generated two immunities, one held by the states against congressional interference with state decisions about religious establishment or disestablishment, and one held by the people against congressional establishment of a national religion.As part of Reconstruction’s imposition of new federal limits on state power, the Fourteenth Amendment extinguished the state immunity from federal interference, but extended the personal immunity to protect the people against state as well as federally established religions. This is logically coherent in the context of Reconstruction’s goals and also sounds in the personal liberty and citizen immunities protected by the text of the Fourteenth Amendment. When framed by a logical and textual account of Establishment Clause incorporation, Reconstruction history suggests an originalist account that the Fourteenth Amendment applied the Establishment Clause to the states.Incorporation of the Establishment Clause, therefore, is eminently defensible. Its justifications require more careful consideration by courts and commentators than they have yet received.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85184537","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}
District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have appro
{"title":"Our Non-Originalist Right to Bear Arms","authors":"R. Leider","doi":"10.2139/SSRN.2084805","DOIUrl":"https://doi.org/10.2139/SSRN.2084805","url":null,"abstract":"District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have appro","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77506109","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}
A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of factfinders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to impose liability based on non-direct evidence remains. For instance, people are much more willing to convict a driver of a speeding violation on the basis of a speed camera than on the basis of two cameras documenting the exact time a car passes by them — from which the driver’s speed in the pertinent section of the road is inferred. While these findings do not necessarily refute the existing theories, they indicate that these theories are incomplete and point to the existence of a deep-seated bias against basing liability on inferences — an anti-inference bias. The article dicusses the potential normative implications of the new findings.
{"title":"Seeing is Believing: The Anti-Inference Bias","authors":"E. Zamir, Ilana Ritov, D. Teichman","doi":"10.2139/SSRN.1989561","DOIUrl":"https://doi.org/10.2139/SSRN.1989561","url":null,"abstract":"A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of factfinders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to impose liability based on non-direct evidence remains. For instance, people are much more willing to convict a driver of a speeding violation on the basis of a speed camera than on the basis of two cameras documenting the exact time a car passes by them — from which the driver’s speed in the pertinent section of the road is inferred. While these findings do not necessarily refute the existing theories, they indicate that these theories are incomplete and point to the existence of a deep-seated bias against basing liability on inferences — an anti-inference bias. The article dicusses the potential normative implications of the new findings.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2012-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75332442","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}
Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract so-called "mandatory arbitration" should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Claim-suppressing arbitration, furthermore, violates two fundamental principles of due process: It allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker with a financial stake in the outcome of key jurisdictional decisions "that is to say, arbitrators have authority to decide their own power to decide the merits, a question in which they have a financial stake. The Supreme Court has facilitated this doctrine through a series of poorly-reasoned and incoherent decisions, in which the Court's liberal wing has been particularly inept at seeing the stakes for consumer and employee plaintiffs. Exploiting Justice Breyer's incoherent line of majority opinions attempting to identify "gateway" issues, the conservative Court majority has recently insulated all questions of enforceability of arbitration clauses from judicial review and is on the verge of allowing corporate defendants to immunize themselves from class actions through use of arbitration clauses.
{"title":"Claim-Suppressing Arbitration: The New Rules","authors":"David S. Schwartz","doi":"10.2139/SSRN.1761675","DOIUrl":"https://doi.org/10.2139/SSRN.1761675","url":null,"abstract":"Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract so-called \"mandatory arbitration\" should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Claim-suppressing arbitration, furthermore, violates two fundamental principles of due process: It allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker with a financial stake in the outcome of key jurisdictional decisions \"that is to say, arbitrators have authority to decide their own power to decide the merits, a question in which they have a financial stake. The Supreme Court has facilitated this doctrine through a series of poorly-reasoned and incoherent decisions, in which the Court's liberal wing has been particularly inept at seeing the stakes for consumer and employee plaintiffs. Exploiting Justice Breyer's incoherent line of majority opinions attempting to identify \"gateway\" issues, the conservative Court majority has recently insulated all questions of enforceability of arbitration clauses from judicial review and is on the verge of allowing corporate defendants to immunize themselves from class actions through use of arbitration clauses.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2011-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76867890","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 much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the wake of federal welfare-reform legislation. As a precondition to public assistance, some jurisdictions now require that all applicants submit to a suspicionless home search by law-enforcement investigators seeking evidence of welfare fraud. In turning back challenges to these intrusions, contemporary courts have significantly curtailed the protections of the Fourth Amendment as applied to the poor.While the courts that sanction these practices disclaim any sort of poverty-based classification underlying their analysis, no other rationale withstands scrutiny. Neither precedent nor the principled extension of existing doctrine justifies recent outcomes or explains why the holdings should not be applied to authorize a vast - and, thus, unacceptable - expansion of suspicionless search practices directed at the homes of the less destitute. The developing jurisprudence accordingly represents an implicit concession that the poor constitute a subconstitutional class for purposes of the Fourth Amendment. Framed most charitably, the decisions understand poverty as a condition of moral culpability and thus accept it as a surrogate for the individualized suspicion that otherwise would be required to justify the intrusions at issue. The premise of the dissolute poor, tracing back centuries, remains alive and well in American law, and we have a bifurcated Fourth Amendment to prove its enduring vitality.
{"title":"A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home","authors":"Jordan C. Budd","doi":"10.2139/SSRN.1687938","DOIUrl":"https://doi.org/10.2139/SSRN.1687938","url":null,"abstract":"For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the wake of federal welfare-reform legislation. As a precondition to public assistance, some jurisdictions now require that all applicants submit to a suspicionless home search by law-enforcement investigators seeking evidence of welfare fraud. In turning back challenges to these intrusions, contemporary courts have significantly curtailed the protections of the Fourth Amendment as applied to the poor.While the courts that sanction these practices disclaim any sort of poverty-based classification underlying their analysis, no other rationale withstands scrutiny. Neither precedent nor the principled extension of existing doctrine justifies recent outcomes or explains why the holdings should not be applied to authorize a vast - and, thus, unacceptable - expansion of suspicionless search practices directed at the homes of the less destitute. The developing jurisprudence accordingly represents an implicit concession that the poor constitute a subconstitutional class for purposes of the Fourth Amendment. Framed most charitably, the decisions understand poverty as a condition of moral culpability and thus accept it as a surrogate for the individualized suspicion that otherwise would be required to justify the intrusions at issue. The premise of the dissolute poor, tracing back centuries, remains alive and well in American law, and we have a bifurcated Fourth Amendment to prove its enduring vitality.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2010-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77760338","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}
In an interesting and potentially important article, Professor Deirdre M. Bowen declares that her goal “is to scrutinize what happens when the judiciary and anti– affirmative action activist groups exploit color blindness to rationalize away affirmative action admissions policies.” 1 She argues that her research and her study demonstrate that “reactionary ‘color blindness’” 2 does not actually show that “affirmative action is no longer necessary.” 3 Instead, she believes the results of her study establish that anti–affirmative action forces have embraced an “ideal [that] does not appear to exist” and are “promoting a deeply flawed discourse [by asserting] that affirmative action causes stigma.” 4
在一篇有趣且可能很重要的文章中，迪尔德丽·m·鲍恩(Deirdre M. Bowen)教授宣称，她的目标是“仔细审视当司法部门和反平权行动激进组织利用肤色歧视来合理化平权行动的招生政策时，会发生什么。”她辩称，她的研究和她的研究表明，“反动的‘色盲’”实际上并没有表明“平权行动不再必要”。相反，她认为她的研究结果表明，反平权行动的力量接受了一种“似乎不存在的理想”，并且“通过断言平权行动会导致耻辱，来促进一种有严重缺陷的话语”。“4
{"title":"The Devil is in the Lack of Details","authors":"Ann M. Killenbeck","doi":"10.2139/ssrn.3504949","DOIUrl":"https://doi.org/10.2139/ssrn.3504949","url":null,"abstract":"In an interesting and potentially important article, Professor Deirdre M. Bowen declares that her goal “is to scrutinize what happens when the judiciary and anti– affirmative action activist groups exploit color blindness to rationalize away affirmative action admissions policies.” 1 She argues that her research and her study demonstrate that “reactionary ‘color blindness’” 2 does not actually show that “affirmative action is no longer necessary.” 3 Instead, she believes the results of her study establish that anti–affirmative action forces have embraced an “ideal [that] does not appear to exist” and are “promoting a deeply flawed discourse [by asserting] that affirmative action causes stigma.” 4","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74045336","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}
Although the percentage of employees represented in collective bargaining in the public sector is more than five times the percentage in the private sector, collective bargaining for public employees remains very controversial The two most powerful arguments against public employee collective bargaining is that it is antidemocratic and that it impedes effective government. Concern with the antidemocratic effects of public sector collective bargaining leads courts and labor boards to narrow the scope of what must be negotiated. Concerns with collective bargaining impeding effective government leads to backlash by the legislative and executive branches against public employee unions.This article contends that the narrowness of the scope of bargaining that results from concerns over the antidemocratic nature of public employee bargaining leads to public employee bargaining impeding effective government. The law of negotiability channels channels employees and their unions away from participation in and responsibility for decisions affecting the risks of the public sector enterprise and into negotiating contract provisions that protect them from those risks. Public employee unions have performed that role very effectively, so effectively that the results can impede effective government. The article examines numerous cases where, in spite of the law, public employers have involved employees and their unions in decisions affecting the risks of the enterprise with very positive results. The article urges that jurisdictions break away from the private sector model which classifies every subject as either one on which collective bargaining is mandated or which is left to the unilateral control of management and develop alternative vehicles of employee-union voice in public sector decision-making.
{"title":"The Paradox of Public Sector Labor Law","authors":"M. Malin","doi":"10.2139/SSRN.1459080","DOIUrl":"https://doi.org/10.2139/SSRN.1459080","url":null,"abstract":"Although the percentage of employees represented in collective bargaining in the public sector is more than five times the percentage in the private sector, collective bargaining for public employees remains very controversial The two most powerful arguments against public employee collective bargaining is that it is antidemocratic and that it impedes effective government. Concern with the antidemocratic effects of public sector collective bargaining leads courts and labor boards to narrow the scope of what must be negotiated. Concerns with collective bargaining impeding effective government leads to backlash by the legislative and executive branches against public employee unions.This article contends that the narrowness of the scope of bargaining that results from concerns over the antidemocratic nature of public employee bargaining leads to public employee bargaining impeding effective government. The law of negotiability channels channels employees and their unions away from participation in and responsibility for decisions affecting the risks of the public sector enterprise and into negotiating contract provisions that protect them from those risks. Public employee unions have performed that role very effectively, so effectively that the results can impede effective government. The article examines numerous cases where, in spite of the law, public employers have involved employees and their unions in decisions affecting the risks of the enterprise with very positive results. The article urges that jurisdictions break away from the private sector model which classifies every subject as either one on which collective bargaining is mandated or which is left to the unilateral control of management and develop alternative vehicles of employee-union voice in public sector decision-making.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85804676","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}
Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure. This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory. Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions. This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts. It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population - Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews. These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder. Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.
{"title":"\"Why Rebottle the Genie?\": Capitalizing on Closure in Death Penalty Proceedings","authors":"J. Madeira","doi":"10.2139/SSRN.1347844","DOIUrl":"https://doi.org/10.2139/SSRN.1347844","url":null,"abstract":"Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure. This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory. Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions. This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts. It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population - Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews. These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder. Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80749290","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}
I argue that the most efficient way to regulate investment banks for financial responsibility is to make them bear (at least some) of the consequences of a systemic crisis. More prudential oversight is not likely to be helpful, in an age of rigorous risk modeling, and complex federal insolvency regimes (as in the banking industry) are not likely to be tractable for investment banks. The most effective incentive for firms to take a more pro-active role in counterparty and systemic risk management, thus, is to formalize the existing expectation that financial services conglomerates participate (at least, to a degree commensurate with their interest) in the rescue of an insolvent competitor whom the industry deems "too interconnected" to fail. To that end, this Article proposes a self-regulatory framework for top-tier financial holding companies and investment banks both to make such determinations and help shoulder the burden in addressing the consequences. Congress would enact legislation creating the framework of such an organization, as well as principles for the sharing of information among participating firms, to be implemented by specific rules. The organization would be responsible for identifying risks, determining the flows of information necessary to contain those risks, and building mechanisms to share that information. More importantly, the organization would be expected to participate in the financing (and share in the profits or loss resulting from) any bailout of a member entity, pursuant to rules established by the organization. An industry regulator (similar to the SEC) would be responsible for overseeing rulemaking that establishes procedures for making such determinations and enforcing compliance with those rules. The Federal Reserve Board, meanwhile, would have the authority to monitor the activities of individual member firms, to set the terms for any acquisition of an insolvent member firm within the parameters established by the industry framework, and (at its discretion) to finance or fund a bailout, in part or in whole, if it is determined to be in the public interest.
{"title":"Requiem for the Bulge Bracket?: Revisiting Investment Bank Regulation","authors":"Onnig H. Dombalagian","doi":"10.2139/ssrn.1249441","DOIUrl":"https://doi.org/10.2139/ssrn.1249441","url":null,"abstract":"I argue that the most efficient way to regulate investment banks for financial responsibility is to make them bear (at least some) of the consequences of a systemic crisis. More prudential oversight is not likely to be helpful, in an age of rigorous risk modeling, and complex federal insolvency regimes (as in the banking industry) are not likely to be tractable for investment banks. The most effective incentive for firms to take a more pro-active role in counterparty and systemic risk management, thus, is to formalize the existing expectation that financial services conglomerates participate (at least, to a degree commensurate with their interest) in the rescue of an insolvent competitor whom the industry deems \"too interconnected\" to fail. To that end, this Article proposes a self-regulatory framework for top-tier financial holding companies and investment banks both to make such determinations and help shoulder the burden in addressing the consequences. Congress would enact legislation creating the framework of such an organization, as well as principles for the sharing of information among participating firms, to be implemented by specific rules. The organization would be responsible for identifying risks, determining the flows of information necessary to contain those risks, and building mechanisms to share that information. More importantly, the organization would be expected to participate in the financing (and share in the profits or loss resulting from) any bailout of a member entity, pursuant to rules established by the organization. An industry regulator (similar to the SEC) would be responsible for overseeing rulemaking that establishes procedures for making such determinations and enforcing compliance with those rules. The Federal Reserve Board, meanwhile, would have the authority to monitor the activities of individual member firms, to set the terms for any acquisition of an insolvent member firm within the parameters established by the industry framework, and (at its discretion) to finance or fund a bailout, in part or in whole, if it is determined to be in the public interest.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2009-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76988600","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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