What does it mean to “trust the science”? The phrase is often used to suggest that scientific knowledge is static and that the public can treat current recommendations as eternal verities. The medical community is not omniscient, however. Indeed, some illnesses are characterized by uncertainty: it is not clear with what frequency the associated symptoms occur or whether they are a manifestation of a psychological disorder or a physiological disease. The medical field is no stranger to such challenges, labeling such illnesses as “contested.” The communication of uncertainty surrounding these illnesses, however, presents a troubling dynamic. Rather than engaging in constructive dialogue that moves scientific understanding forward, viewpoints become entrenched, points of disagreement are obscured, and professionals retaliate against one another. In the best case scenario, patients are merely left to sort through dense medical concepts on their own; in the worst case, they are targeted by predatory providers. Patients suffer, trust in science declines. Drawing on insights from the economics literature, this Article presents a theoretical framework for approaching the uncertainty inherent in contested illnesses. The framework discusses the pattern of evidence accumulation that accompanies an uncertain illness, distinct from that of a disease where uncertainty is substantially resolved. Applying these insights to the communication of uncertainty surrounding contested illnesses, the Article notes that null results in the presence of well-designed studies should be weighed differently than null results in the presence of case studies or small sample studies. If an illness is truly uncertain, the framework highlights the potential benefits of additional caution in approaching irreversible actions, such as prematurely communicating the resolution of uncertainty (which can lead to the development of patient mistrust). This careful communication of uncertainty is vital to prevent patient marginalization and to clarify the often-inscrutable information landscape in these contexts. Current regulations for medical providers and public figures are insufficient, however, to incentivize such careful communication. This Article proposes a government-coordinated informational digest that weighs existing evidence based on the rigor of study design and imputes null results to missing results of completed studies. The agency coordinating the digest will provide incentives for studies that fill gaps in the literature and which incorporate input from patient advocate groups into the design. In doing so, it will enable the medical community to both better handle existing uncertainty and to take important steps toward resolving it. More importantly, however, this transparent process educates the public about how scientific beliefs should evolve and prevents the irreversible harm of patient marginalization.
{"title":"Disregarding Uncertainty, Marginalizing Patients","authors":"Elissa P. Gentry","doi":"10.18060/27979","DOIUrl":"https://doi.org/10.18060/27979","url":null,"abstract":"What does it mean to “trust the science”? The phrase is often used to suggest that scientific knowledge is static and that the public can treat current recommendations as eternal verities. The medical community is not omniscient, however. Indeed, some illnesses are characterized by uncertainty: it is not clear with what frequency the associated symptoms occur or whether they are a manifestation of a psychological disorder or a physiological disease. The medical field is no stranger to such challenges, labeling such illnesses as “contested.” The communication of uncertainty surrounding these illnesses, however, presents a troubling dynamic. Rather than engaging in constructive dialogue that moves scientific understanding forward, viewpoints become entrenched, points of disagreement are obscured, and professionals retaliate against one another. In the best case scenario, patients are merely left to sort through dense medical concepts on their own; in the worst case, they are targeted by predatory providers. Patients suffer, trust in science declines. \u0000Drawing on insights from the economics literature, this Article presents a theoretical framework for approaching the uncertainty inherent in contested illnesses. The framework discusses the pattern of evidence accumulation that accompanies an uncertain illness, distinct from that of a disease where uncertainty is substantially resolved. Applying these insights to the communication of uncertainty surrounding contested illnesses, the Article notes that null results in the presence of well-designed studies should be weighed differently than null results in the presence of case studies or small sample studies. If an illness is truly uncertain, the framework highlights the potential benefits of additional caution in approaching irreversible actions, such as prematurely communicating the resolution of uncertainty (which can lead to the development of patient mistrust). This careful communication of uncertainty is vital to prevent patient marginalization and to clarify the often-inscrutable information landscape in these contexts. Current regulations for medical providers and public figures are insufficient, however, to incentivize such careful communication. This Article proposes a government-coordinated informational digest that weighs existing evidence based on the rigor of study design and imputes null results to missing results of completed studies. The agency coordinating the digest will provide incentives for studies that fill gaps in the literature and which incorporate input from patient advocate groups into the design. In doing so, it will enable the medical community to both better handle existing uncertainty and to take important steps toward resolving it. More importantly, however, this transparent process educates the public about how scientific beliefs should evolve and prevents the irreversible harm of patient marginalization.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"43 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139385133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"NIL Collectives and Title IX: A Proactive Consideration of Title IX's Application to Donor-Driven NIL Collectives","authors":"Abigail Oliphant","doi":"10.18060/27986","DOIUrl":"https://doi.org/10.18060/27986","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"56 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139384743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sex education in American public schools has long been the subject of controversy. Although debates overthe inclusion of sex education in schools now focus on students’ access to comprehensive curricula that includes the experiences of queer and transgender students, sex education in the United States has long maintained its roots in the institutional promotion of “sexual purity.” Through an exploration of the latest attacks on comprehensive sex education, particularly in the context of reinvigorated “Don’t Say Gay and Trans” legislation, this Article postulates that a novel interpretation of Title IX of the Education Amendments of 1972 is needed that requires education policymakers to incorporate the experiences and needs of queer and transgender students insex education curricula. This Article examines the application of the Supreme Court’s Bostock v. Clayton County decision to Title IX and argues that the prohibition against discrimination in education on the basis ofsexual orientation and gender identity raises a plausible Title IX challenge to non-inclusive sex education curricula. By first offering a brief historical overview of public sex education curricula in the United States, this Article contextualizes the present need for comprehensive sex education as an impactfulresource forstudents, as well as the unique sexual health challenges faced by queer and trans adolescents. This Article then outlines the important changes to Title IX in the wake of the Bostock decision, President Biden’s 2021 Executive Order implementing Bostock, and subsequent appellate case law. Most importantly, this Article will highlight the potential for Title IX claims to be brought against public schools, districts, and states that offer non-comprehensive sex education curricula that excludes content relating to the unique needs of queer and trans students. This Article concludes by addressing potential challenges to such an interpretation of Title IX in the context of sex education curricula and will underscore the important policyramifications of incorporating the experiences and needs of queer and trans students in educational dialogues surrounding sexual health.
{"title":"A New Sex Education: The Title IX Defense Against \"Don't Say Gay\"","authors":"Robert Blake Watson","doi":"10.18060/27981","DOIUrl":"https://doi.org/10.18060/27981","url":null,"abstract":"Sex education in American public schools has long been the subject of controversy. Although debates overthe inclusion of sex education in schools now focus on students’ access to comprehensive curricula that includes the experiences of queer and transgender students, sex education in the United States has long maintained its roots in the institutional promotion of “sexual purity.” Through an exploration of the latest attacks on comprehensive sex education, particularly in the context of reinvigorated “Don’t Say Gay and Trans” legislation, this Article postulates that a novel interpretation of Title IX of the Education Amendments of 1972 is needed that requires education policymakers to incorporate the experiences and needs of queer and transgender students insex education curricula. This Article examines the application of the Supreme Court’s Bostock v. Clayton County decision to Title IX and argues that the prohibition against discrimination in education on the basis ofsexual orientation and gender identity raises a plausible Title IX challenge to non-inclusive sex education curricula. \u0000By first offering a brief historical overview of public sex education curricula in the United States, this Article contextualizes the present need for comprehensive sex education as an impactfulresource forstudents, as well as the unique sexual health challenges faced by queer and trans adolescents. This Article then outlines the important changes to Title IX in the wake of the Bostock decision, President Biden’s 2021 Executive Order implementing Bostock, and subsequent appellate case law. Most importantly, this Article will highlight the potential for Title IX claims to be brought against public schools, districts, and states that offer non-comprehensive sex education curricula that excludes content relating to the unique needs of queer and trans students. This Article concludes by addressing potential challenges to such an interpretation of Title IX in the context of sex education curricula and will underscore the important policyramifications of incorporating the experiences and needs of queer and trans students in educational dialogues surrounding sexual health.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"16 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139385428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The constitutional test the SupremeCourt has prescribed to review courtroom closures for compliance with the Sixth Amendment’s right to a public trial is in the nature of strict scrutiny. The Courtrequires an “overriding interest” to justify the closure, and a narrow, minimally restrictive scope to the closure. Many lower courts have imposed a less demanding test for “partial” closures, which admitto the courtroom some, but not all, of the public. These courts require a less demanding justification before closing the courtroom to certain individuals—the justification need be only “substantial,” rather than “overriding.” This standard is in the nature of intermediate scrutiny, as applied in other constitutional contexts. There is a third type of “closure,” however, beyond the complete closures the Supreme Court has reviewed, and the partial closures encountered by other courts. This third type is the imposition of entry conditions on would-be audience members, such as requiring a form of identification. These generally applicable conditions may not actually exclude anyone but could conceivably dissuade some audience members from attending a trial. For instance, an attendee might prefer not to provide identification to court personnel and might be turned away as a result. In keeping with the doctrinal model already followed by the courts—applying “tiered scrutiny” to courtroom closures—conditional courtroom entry should be reviewed according to the most lenient of the tiers, rational basis scrutiny. A sliding scale should apply to public trial scrutiny, “Waller” scrutiny, the most demanding, when all are excluded. “Substantial reason” scrutiny, less demanding, should apply when some are excluded. Andrational basis scrutiny, much less demanding, should apply when no one need be excluded, but for their non-compliance with a general rule. A lesser standard should apply in the case of entry conditions because they differ from other closures and cause minimal prejudice to the purposes of the right to a public trial.
{"title":"The Right to a Public Trial, Conditional Courtroom Entry and Tiers of Constitutional Scrutiny","authors":"Stephen E. Smith","doi":"10.18060/27982","DOIUrl":"https://doi.org/10.18060/27982","url":null,"abstract":"The constitutional test the SupremeCourt has prescribed to review courtroom closures for compliance with the Sixth Amendment’s right to a public trial is in the nature of strict scrutiny. The Courtrequires an “overriding interest” to justify the closure, and a narrow, minimally restrictive scope to the closure. Many lower courts have imposed a less demanding test for “partial” closures, which admitto the courtroom some, but not all, of the public. These courts require a less demanding justification before closing the courtroom to certain individuals—the justification need be only “substantial,” rather than “overriding.” This standard is in the nature of intermediate scrutiny, as applied in other constitutional contexts. There is a third type of “closure,” however, beyond the complete closures the Supreme Court has reviewed, and the partial closures encountered by other courts. This third type is the imposition of entry conditions on would-be audience members, such as requiring a form of identification. These generally applicable conditions may not actually exclude anyone but could conceivably dissuade some audience members from attending a trial. For instance, an attendee might prefer not to provide identification to court personnel and might be turned away as a result. In keeping with the doctrinal model already followed by the courts—applying “tiered scrutiny” to courtroom closures—conditional courtroom entry should be reviewed according to the most lenient of the tiers, rational basis scrutiny. A sliding scale should apply to public trial scrutiny, “Waller” scrutiny, the most demanding, when all are excluded. “Substantial reason” scrutiny, less demanding, should apply when some are excluded. Andrational basis scrutiny, much less demanding, should apply when no one need be excluded, but for their non-compliance with a general rule. A lesser standard should apply in the case of entry conditions because they differ from other closures and cause minimal prejudice to the purposes of the right to a public trial.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139386559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The federal market is a cornerstone of every federal polity. It would be difficult to imagine American federalism without the internal free trade constitutionalized by the Dormant Commerce Clause (DCC). This Article provides a criticism of the Supreme Court’s DCC case law and proposes a new approach that takes economic reality into account. The Article demonstrates that the Supreme Court’s DCC case law, owing to its countenancing unnecessary restrictions of trade, fails to fulfill the constitutional function one may attribute to a federal market. First, it seems the Supreme Court replaced the inquiry that fits the Constitution with one that it felt comfortable with. Although the case law promises to suppress state protectionism, in fact, it deals merely with naked protectionism and, thus, gives states a very wide playing field to shelter local economic interests. Second, the Supreme Court’s case law is inconsistent in the sense that it does not do what it promises to do. The Court promises to suppress state protectionism but, instead, it invalidates only those measures that are outrageously protectionist; it examines existential necessity but ignores the question of extensional necessity. Furthermore, it promises a two-step analysis that distinguishes between the restriction of trade and its justification, but the analysis usually does not get to the second step, since only those measures are pronounced restrictive in the first place that could not be sufficiently justified in the second place. The paper proposes a substantive sliding-scale approach that takes economic reality into account. This implies that the current two-limb test should be replaced with a three-limb test providing for an increasingly closer scrutiny of symmetric, asymmetric, and discriminatory impact. It demonstrates that theidea of suppressing state protectionism implies two requirements of necessity. The first one, labeled by this Article as “existential necessity,” requires that completely unnecessary restriction of trade be ruled out. The second one, baptized as “extensional necessity,” filters out restrictions that go beyond what is necessary and turns on the existence of less restrictive regulatory alternatives. This calls for the comparison of policy options in terms of trade restrictiveness and effectiveness but involves no genuine value choice. The proposed doctrine’s novelty lies in the introduction of extensional necessity, which is patently overlooked in the Supreme Court’s current case law.
{"title":"The Dormant Commerce Clause's Unfulfilled Constitutional Promise to Rule Out Protectionism: Proposal for a New Doctrine","authors":"C. Nagy","doi":"10.18060/27978","DOIUrl":"https://doi.org/10.18060/27978","url":null,"abstract":"The federal market is a cornerstone of every federal polity. It would be difficult to imagine American federalism without the internal free trade constitutionalized by the Dormant Commerce Clause (DCC). This Article provides a criticism of the Supreme Court’s DCC case law and proposes a new approach that takes economic reality into account. \u0000The Article demonstrates that the Supreme Court’s DCC case law, owing to its countenancing unnecessary restrictions of trade, fails to fulfill the constitutional function one may attribute to a federal market. First, it seems the Supreme Court replaced the inquiry that fits the Constitution with one that it felt comfortable with. Although the case law promises to suppress state protectionism, in fact, it deals merely with naked protectionism and, thus, gives states a very wide playing field to shelter local economic interests. Second, the Supreme Court’s case law is inconsistent in the sense that it does not do what it promises to do. The Court promises to suppress state protectionism but, instead, it invalidates only those measures that are outrageously protectionist; it examines existential necessity but ignores the question of extensional necessity. Furthermore, it promises a two-step analysis that distinguishes between the restriction of trade and its justification, but the analysis usually does not get to the second step, since only those measures are pronounced restrictive in the first place that could not be sufficiently justified in the second place. \u0000The paper proposes a substantive sliding-scale approach that takes economic reality into account. This implies that the current two-limb test should be replaced with a three-limb test providing for an increasingly closer scrutiny of symmetric, asymmetric, and discriminatory impact. It demonstrates that theidea of suppressing state protectionism implies two requirements of necessity. The first one, labeled by this Article as “existential necessity,” requires that completely unnecessary restriction of trade be ruled out. The second one, baptized as “extensional necessity,” filters out restrictions that go beyond what is necessary and turns on the existence of less restrictive regulatory alternatives. This calls for the comparison of policy options in terms of trade restrictiveness and effectiveness but involves no genuine value choice. The proposed doctrine’s novelty lies in the introduction of extensional necessity, which is patently overlooked in the Supreme Court’s current case law.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"51 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139386570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Please Don't Leave Me Hanging: A Right to Privacy Argument for Insurance Protection Against Autoerotic Asphyxiation Death","authors":"Michalynn M. Miller","doi":"10.18060/27985","DOIUrl":"https://doi.org/10.18060/27985","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"36 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139385111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Patentability Challenges in Personalized Medicine: A Fork in the Road","authors":"Anusuya Das","doi":"10.18060/27983","DOIUrl":"https://doi.org/10.18060/27983","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"83 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139386128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From American Nightmare to American Dream? A Comprehensive Solution to Racially Discriminatory Appraisal Practices","authors":"Eleanor Klemsz","doi":"10.18060/27984","DOIUrl":"https://doi.org/10.18060/27984","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"54 16","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139385695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Having just crossed the one-year mark for service on the Indiana Supreme Court, the Indiana Law Review has invited me to reflect on my experience over that first year. When Governor Holcomb announced he had selected me to succeed Justice Steven David, Chief Justice Loretta Rush offered kind remarks that included a description of this new role as “a big job” with a “high bar” and “a lot of responsibilities.” One year later, I can confirm: She was right. But it is also a rewarding and fulfilling opportunity, and as I reflect on this first year, a few things stand out.
{"title":"Joining the Indiana Supreme Court: Rookie Year Reflections","authors":"Derek R. Molter","doi":"10.18060/27642","DOIUrl":"https://doi.org/10.18060/27642","url":null,"abstract":"Having just crossed the one-year mark for service on the Indiana Supreme Court, the Indiana Law Review has invited me to reflect on my experience over that first year. When Governor Holcomb announced he had selected me to succeed Justice Steven David, Chief Justice Loretta Rush offered kind remarks that included a description of this new role as “a big job” with a “high bar” and “a lot of responsibilities.” One year later, I can confirm: She was right. But it is also a rewarding and fulfilling opportunity, and as I reflect on this first year, a few things stand out.","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135146378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Work Hard and Die Poor: The History of Law Libraries in Indiana","authors":"Lee R. Little","doi":"10.18060/27645","DOIUrl":"https://doi.org/10.18060/27645","url":null,"abstract":"","PeriodicalId":81517,"journal":{"name":"Indiana law review","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135146381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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