The Supreme Court's decision in Grutter v. Bollinger,1 upholding race-conscious affirmative action in admissions to the University of Michigan Law School, is widely seen as a landmark decision for its reaffirmation ofJustice Lewis Powell's position in the Bakke case2 a quarter century ago. The Powell opinion had justified the consideration of race as one factor in a public university's admissions process designed to produce diversity in its student body for educational purposes.3 In Grutter, the Court spelled out in some detail the potential educational advantages of student diversity, including the preparation of graduates for a society and a work force that are growing more and more diverse. The opinion thus provides a grounding in social science for the advantages Justice Powell had asserted on the basis of less evidence.
最高法院在格鲁特诉博林格案(Grutter v. Bollinger)中做出的裁决，在密歇根大学法学院(University of Michigan Law School)的录取中支持种族歧视的平权法案，被广泛视为一个里程碑式的决定，因为它重申了25年前刘易斯·鲍威尔大法官(Lewis Powell)在巴克案中的立场。鲍威尔的意见证明，公立大学在招生过程中考虑种族因素是合理的，目的是为了教育目的而使学生群体多样化在格鲁特案中，最高法院详细阐述了学生多样性在教育方面的潜在优势，包括为毕业生为日益多样化的社会和劳动力做好准备。因此，该意见为鲍威尔大法官在较少证据的基础上断言的优势提供了社会科学基础。
{"title":"THE REVIVAL OF FORWARD-LOOKING AFFIRMATIVE ACTION","authors":"Kenneth L. Karst","doi":"10.2307/4099348","DOIUrl":"https://doi.org/10.2307/4099348","url":null,"abstract":"The Supreme Court's decision in Grutter v. Bollinger,1 upholding race-conscious affirmative action in admissions to the University of Michigan Law School, is widely seen as a landmark decision for its reaffirmation ofJustice Lewis Powell's position in the Bakke case2 a quarter century ago. The Powell opinion had justified the consideration of race as one factor in a public university's admissions process designed to produce diversity in its student body for educational purposes.3 In Grutter, the Court spelled out in some detail the potential educational advantages of student diversity, including the preparation of graduates for a society and a work force that are growing more and more diverse. The opinion thus provides a grounding in social science for the advantages Justice Powell had asserted on the basis of less evidence.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"60"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099348","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tomorrow's Massiah: Towards a \"Prosecution Specific\" Understanding of the Sixth Amendment Right to Counsel","authors":"Michael J Howe","doi":"10.2307/4099350","DOIUrl":"https://doi.org/10.2307/4099350","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"134"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099350","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Justice Ginsburg's First Decade: Some Thoughts about Her Contributions in the Fields of Procedure and Jurisdiction","authors":"D. Shapiro","doi":"10.2307/4099344","DOIUrl":"https://doi.org/10.2307/4099344","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"68 1","pages":"21"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099344","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Justice Ginsburg and the Judicial Role in Expanding “We the People”: The Disability Rights Cases","authors":"S. Bagenstos","doi":"10.2307/4099347","DOIUrl":"https://doi.org/10.2307/4099347","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"104 1","pages":"49-59"},"PeriodicalIF":2.9,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4099347","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68755609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bankruptcy Law, Ritual, and Performance","authors":"Donald R. Korobkin","doi":"10.2307/3593385","DOIUrl":"https://doi.org/10.2307/3593385","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"2124"},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593385","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory","authors":"Norman W. Spaulding","doi":"10.2307/3593382","DOIUrl":"https://doi.org/10.2307/3593382","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1992"},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593382","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69173206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assessing the Rights of IRU Holders in Uncertain Times","authors":"A. Subramanian","doi":"10.2307/3593384","DOIUrl":"https://doi.org/10.2307/3593384","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"2094"},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593384","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ethnic but Equal: The Quest for a New Democratic Order in Bosnia and Herzegovina","authors":"A. Mansfield","doi":"10.2307/3593383","DOIUrl":"https://doi.org/10.2307/3593383","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"2052"},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593383","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases","authors":"H. Monaghan","doi":"10.2307/3593381","DOIUrl":"https://doi.org/10.2307/3593381","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"9 1","pages":"1919"},"PeriodicalIF":2.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In The Expectations of Consumers,' I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them by offering a reinvigorated understanding of the consumer expectations doctrine that seeks to capture important aspects of public health and safety concerns that the Restatement formulation excludes and that courts plausibly might be groping toward in their consumer expectations jurisprudence. Rather than permit unguided conjecture by jury members regarding the content of consumer expectations, however, I recommend that the doctrine be redirected specifically toward those aspects of risk perception and evaluation that express important public values regarding the acceptability of product-caused harms, but that cannot be subsumed within a technically-oriented reasonable alternative design standard. Although I attempt to provide both a theoretical foundation for and a practical explication of the consumer expectations doctrine as reconceived in this light, I also note in the Article that the test "should be thought of as a work in progress, subject to debate and revision in the best spirit of the common law."2 Consistent with that ambition, therefore, I am extremely grateful that Professors Henderson and Twerski, who served as Reporters for the Third Restatement, have offered their careful, constructive response to my proposal.3 Space permits me to address here only two of their critiques. The Reporters contend that the reinvigorated consumer expectations test described in The Expectations of Consumers reflects "elitism," first because it permits courts to make judgments that they believe should be made only by the "more populist-oriented branches of government"4 and, second, because it substitutes the "soft technology" of psychology for the free-
{"title":"The Design of Products Liability: A Reply to Professors Henderson and Twerski","authors":"Douglas A. Kysar","doi":"10.2307/3593404","DOIUrl":"https://doi.org/10.2307/3593404","url":null,"abstract":"In The Expectations of Consumers,' I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them by offering a reinvigorated understanding of the consumer expectations doctrine that seeks to capture important aspects of public health and safety concerns that the Restatement formulation excludes and that courts plausibly might be groping toward in their consumer expectations jurisprudence. Rather than permit unguided conjecture by jury members regarding the content of consumer expectations, however, I recommend that the doctrine be redirected specifically toward those aspects of risk perception and evaluation that express important public values regarding the acceptability of product-caused harms, but that cannot be subsumed within a technically-oriented reasonable alternative design standard. Although I attempt to provide both a theoretical foundation for and a practical explication of the consumer expectations doctrine as reconceived in this light, I also note in the Article that the test \"should be thought of as a work in progress, subject to debate and revision in the best spirit of the common law.\"2 Consistent with that ambition, therefore, I am extremely grateful that Professors Henderson and Twerski, who served as Reporters for the Third Restatement, have offered their careful, constructive response to my proposal.3 Space permits me to address here only two of their critiques. The Reporters contend that the reinvigorated consumer expectations test described in The Expectations of Consumers reflects \"elitism,\" first because it permits courts to make judgments that they believe should be made only by the \"more populist-oriented branches of government\"4 and, second, because it substitutes the \"soft technology\" of psychology for the free-","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1803"},"PeriodicalIF":2.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3593404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69172854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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