Rank ordering is a crude but economical method of conveying information that assists consumers (such as prospective law students) to make choices; hence the popularity of the law school rankings by U.S. News & World Report. However, the validity of USNWR's rankings are undermined by the arbitrary weights attached to the different factors on which the rankings are based. This paper explores a variety of alternatives, beginning with the mean LSAT score of the student body, and emphasizes that the design of a ranking system is relevant to the interest of the people whom the rankings are intended to guide. There is broad convergence of plausible systems of ranking law schools, but it is possible to improve on the USNWR rankings.
{"title":"Law School Rankings","authors":"R. Posner","doi":"10.2139/SSRN.703821","DOIUrl":"https://doi.org/10.2139/SSRN.703821","url":null,"abstract":"Rank ordering is a crude but economical method of conveying information that assists consumers (such as prospective law students) to make choices; hence the popularity of the law school rankings by U.S. News & World Report. However, the validity of USNWR's rankings are undermined by the arbitrary weights attached to the different factors on which the rankings are based. This paper explores a variety of alternatives, beginning with the mean LSAT score of the student body, and emphasizes that the design of a ranking system is relevant to the interest of the people whom the rankings are intended to guide. There is broad convergence of plausible systems of ranking law schools, but it is possible to improve on the USNWR rankings.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87096451","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}
Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may lead some or many students to make bad choices and thus to participate in the production of inaccurate rankings.
{"title":"Ranking Law Schools: A Market Test?","authors":"C. Sunstein","doi":"10.2139/SSRN.703282","DOIUrl":"https://doi.org/10.2139/SSRN.703282","url":null,"abstract":"Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may lead some or many students to make bad choices and thus to participate in the production of inaccurate rankings.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89697280","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 paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.
{"title":"Structuring Sentencing: Apprendi, The Offense of Conviction, and the Limitied Role of Constitutional Law","authors":"B. Priester","doi":"10.2139/SSRN.437222","DOIUrl":"https://doi.org/10.2139/SSRN.437222","url":null,"abstract":"The paper analyzes the recent line of United States Supreme Court cases that has called into question the constitutionality of highly controversial contemporary sentencing laws such as mandatory minimum sentences and the Federal Sentencing Guidelines. A narrow majority in Apprendi v. New Jersey (2000) and a plurality in Harris v. United States (2002) evaluated these sentencing laws under the Jury Trial guarantee of the Sixth Amendment and, at least for the time being, approved of their constitutionality. The paper demonstrates that the Court's interpretive struggle in these cases results from too narrow a focus on the Sixth Amendment and the allocation of responsibility between the trial jury and the sentencing judge. The paper argues that the constitutionality of these sentencing laws must be evaluated from a broader perspective: the separation of powers in constitutional criminal procedure. Rather than an issue of constitutional interpretation involving solely the Jury Trial guarantee, the validity of sentencing laws implicates the full range of the Constitution's provisions governing criminal procedure and their allocation of power to legislatures and prosecutors in addition to juries and judges. From this structural constitutional argument, the paper defends the constitutionality of most sentencing laws on the grounds that the separation of powers in criminal procedure imposes only a narrow restriction on legislative power to design statutory schemes by which convicted offenders are sentenced: a requirement that provisions that determine or enhance the defendant's maximum punishment be enacted, charged, and proven as part of the defendant's offense of conviction. Other sentencing laws, including mandatory minimums and the Guidelines, do not alter the defendant's maximum punishment when they are used to determine the defendant's particular sentence. Such laws therefore may be applied by the sentencing judge, rather than being found beyond a reasonable doubt by a trial jury, without violating the Constitution.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87391743","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":"When vitalism is dead wrong: the discrimination against and torture of incompetent patients by compulsory life-sustaining treatment.","authors":"Alicia R Ouellette","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25606360","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}
Some toxic exposures to drugs or other environmental chemicals may create an increased risk of future disease for which periodic preventive medical screening might be desirable. However, many of these risks, even if unacceptable as a matter of public health policy, might still not be significant enough for medical monitoring (periodic diagnostic screening for latent illnesses or medical conditions) to be an appropriate medical intervention. This somewhat unintuitive, but statistically certain conclusion can be demonstrated in relatively simple mathematical terms. Accordingly, we introduce Bayes's Rule and decision analysis, a quantitative methodology commonly employed by medical practitioners. A review of current medical practices indicates that physicians decide whether to recommend monitoring for a particular exposed population by knowing the natural history of the disease and by first calculating the predictive value of a positive test (PPV), which will be one to five percent or greater for an endorsable monitoring exercise, absent exceptional circumstances. Rather than simply relying on the opinions of retained medical experts, this accessible quantitative method permits judges, jurists, and policymakers to more confidently and objectively decide whether medical monitoring is appropriate and necessary as a result of a specific chemical exposure.
{"title":"A Quantitative Methodology for Determining the Need for Exposure-Prompted Medical Monitoring","authors":"C. P. Guzelian, B. Hillner, P. Guzelian","doi":"10.2139/SSRN.439220","DOIUrl":"https://doi.org/10.2139/SSRN.439220","url":null,"abstract":"Some toxic exposures to drugs or other environmental chemicals may create an increased risk of future disease for which periodic preventive medical screening might be desirable. However, many of these risks, even if unacceptable as a matter of public health policy, might still not be significant enough for medical monitoring (periodic diagnostic screening for latent illnesses or medical conditions) to be an appropriate medical intervention. This somewhat unintuitive, but statistically certain conclusion can be demonstrated in relatively simple mathematical terms. Accordingly, we introduce Bayes's Rule and decision analysis, a quantitative methodology commonly employed by medical practitioners. A review of current medical practices indicates that physicians decide whether to recommend monitoring for a particular exposed population by knowing the natural history of the disease and by first calculating the predictive value of a positive test (PPV), which will be one to five percent or greater for an endorsable monitoring exercise, absent exceptional circumstances. Rather than simply relying on the opinions of retained medical experts, this accessible quantitative method permits judges, jurists, and policymakers to more confidently and objectively decide whether medical monitoring is appropriate and necessary as a result of a specific chemical exposure.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2003-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75794272","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 spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.
消费能力仍然是伦奎斯特法院(Rehnquist Court)联邦主义复兴的一个显著例外，它的行使仍然受到1987年南达科他州诉多尔案(South Dakota v. Dole)极其慷慨的裁决的支配。因此，许多评论家在本专题讨论会和其他地方撰文，建议国会应通过使用支出权来规避对国会权力的限制，以回应伦奎斯特法院对各州权利的裁决。我们在本文中认为，那些敦促国会利用多尔来制约伦奎斯特法院恢复各州权利的人，可能会受益于对法律原则创造的上下文依赖更加敏感，我们敦促对战略思考的需要更加敏感。第一部分回顾了多尔案，并考察了最近下级法院的判决，以说明多尔案的检验在实践中是多么无效。第二部分说明了为什么这个测试在实质上和概念上都是不可靠的。当然，这部分的结果是，多尔应该被抛弃。然而，普遍的学术假设是，它不会。事实上，正是这种假设促使国会以多尔案为蓝本，规避法院更具限制性的联邦制案件。第三部分详细审查了多尔的耐久性假设，特别关注法院将很快审查对2000年《宗教土地使用和制度化人员法案》(RLUIPA)的挑战的可能性，该法案除其他外，将消费能力作为杠杆，以扩大州囚犯的自由行使权利。我们的结论是，RLUIPA不太可能促使法院推翻甚至修改多尔案。因此，第四部分将注意力转向规避主义策略，展示国会如何利用多尔测试来绕过伦奎斯特法院的几项联邦制裁决。第五部分认为，法院不太可能容忍这一举动。因此，它引发了一种反常后果的幽灵:一个过于聪明的国会可能会迫使部分不情愿的最高法院限制最重要的国会权力，而伦奎斯特法院的州权复兴迄今为止还没有受到影响。
{"title":"Getting Off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-Clever Congress Could Provoke it to Do so","authors":"Lynn A. Baker, Mitchell N. Berman","doi":"10.2139/SSRN.395222","DOIUrl":"https://doi.org/10.2139/SSRN.395222","url":null,"abstract":"The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2003-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86131873","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 Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts. This essay criticizes this "juricentric" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called "statesmanship" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5. In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.
{"title":"Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power","authors":"R. Post, Reva B. Siegel","doi":"10.2139/SSRN.378500","DOIUrl":"https://doi.org/10.2139/SSRN.378500","url":null,"abstract":"In Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts. This essay criticizes this \"juricentric\" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called \"statesmanship\" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5. In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2003-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74313112","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}
Health insurers are generally guided by the principle of "actuarial fairness," according to which they distinguish among various risks on the basis of cost-related factors. Thus, insurers often limit or deny coverage for vision care, hearing aids, mental health care, and even AIDS treatment based on actuarial justifications. Furthermore, approximately forty-two million Americans have no health insurance at all, because most of these individuals cannot afford the cost of insurance. This Article argues that Americans have come to demand more than actuarial fairness from health insurers and are increasingly concerned by what I call "moral fairness." This is evidenced by the hundreds of laws that have been passed to constrain insurers' discretion with respect to particular coverage decisions. Legislative mandates are frequent, but seemingly haphazard, following no systematic methodology. This Article suggests an analytical framework that can be utilized to determine which interventions are appropriate and evaluates a variety of means by which moral fairness could be promoted in the arena of health care coverage.
{"title":"Unmanaged care: towards moral fairness in health care coverage.","authors":"Sharona Hoffman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Health insurers are generally guided by the principle of \"actuarial fairness,\" according to which they distinguish among various risks on the basis of cost-related factors. Thus, insurers often limit or deny coverage for vision care, hearing aids, mental health care, and even AIDS treatment based on actuarial justifications. Furthermore, approximately forty-two million Americans have no health insurance at all, because most of these individuals cannot afford the cost of insurance. This Article argues that Americans have come to demand more than actuarial fairness from health insurers and are increasingly concerned by what I call \"moral fairness.\" This is evidenced by the hundreds of laws that have been passed to constrain insurers' discretion with respect to particular coverage decisions. Legislative mandates are frequent, but seemingly haphazard, following no systematic methodology. This Article suggests an analytical framework that can be utilized to determine which interventions are appropriate and evaluates a variety of means by which moral fairness could be promoted in the arena of health care coverage.</p>","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579575","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}
Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional "beyond reasonable doubt." In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a "presumption of constitutionality." Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.
{"title":"Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past","authors":"Evan H. Caminker","doi":"10.2139/SSRN.323222","DOIUrl":"https://doi.org/10.2139/SSRN.323222","url":null,"abstract":"Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional \"beyond reasonable doubt.\" In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a \"presumption of constitutionality.\" Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2002-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88011377","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":"Cloning human organs: potential sources and property implications.","authors":"Laura J Hilmert","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546685","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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