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Articles 1 - 30 of 6538
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Corporate Climate Litigation And Environmental Justice: How Green Amendments Can Be Used To Advance Accountability And Equity, Noah Hines
Indiana Journal of Law and Social Equality
The term “Green Amendment” was first coined by author Maya van Rossum in her 2017 book The Green Amendment: Securing Our Right to a Healthy Environment, in which she argues that modern environmental protection laws are fundamentally failing the most vulnerable people in society and proposes the creation of new constitutional rights as a solution. The provisions van Rossum argues ought to be added to state constitutions as “Green Amendments” are also sometimes called “Environmental Rights Amendments,” and generally enumerate the right of all citizens to a clean or healthy environment. Green Amendments currently exist in Pennsylvania, Montana, Illinois, Hawaii, …
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Indiana Journal of Law and Social Equality
This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …
Doe Not Worry: Expanding Protections For Unaccompanied Children, Heidi E. Davis
Doe Not Worry: Expanding Protections For Unaccompanied Children, Heidi E. Davis
Indiana Journal of Law and Social Equality
A recent Fourth Circuit decision created a circuit split regarding the standard applied to constitutional violations in secure holding facilities. The more “liberal” professional judgment standard—as promulgated by Youngberg v. Romeo and applied to unaccompanied immigrant minors in Doe 4 ex rel. Lopez—is necessary but insufficient for the protection of unaccompanied children. This Note first examines the origins of the professional judgment standard in the Youngberg case. Then, cases are surveyed showing that the Supreme Court has recognized children as a vulnerable population, and current regulations, legislation, and court opinions recognize the vulnerabilities of unaccompanied children. With these ideas in …
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay
Indiana Law Journal
The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …
The Trade Origins Of Privacy Law, Anupam Chander
The Trade Origins Of Privacy Law, Anupam Chander
Indiana Law Journal
The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.
But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …
Don't Mess With Texans' Rights: Protecting Transgender Youth From The Paternalistic Policies Of State Executives, Mary Franklin
Don't Mess With Texans' Rights: Protecting Transgender Youth From The Paternalistic Policies Of State Executives, Mary Franklin
Indiana Journal of Law and Social Equality
Texas Attorney General Ken Paxton issued an opinion in 2022 detailing how gender-affirming care for transgender minors constituted child abuse under the Texas Family Code. As a result of this opinion, multiple families of trans teens engaging in various forms of gender-affirming care were investigated by the Texas Department of Family and Protective Services. This Article applies the constitutional standards imposed by the equal protection clause, substantive due process, and parental authority to Paxton’s recommendation, using both the U.S. and Texas Constitutions. Ultimately, this Article concludes that Paxton’s opinion fails to meet these constitutional standards and recommends action from the …
Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda
Banned Books & Banned Identities: Maintaining Secularism And The Ability To Read In Public Education For The Well-Being Of America's Youth, Megan M. Tylenda
Indiana Journal of Law and Social Equality
Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without …
Interlocal Power Roulette, Daniel B. Rosenbaum
Interlocal Power Roulette, Daniel B. Rosenbaum
Indiana Law Journal
Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …
Patent Term Tailoring, Sarah Rajec
Patent Term Tailoring, Sarah Rajec
Indiana Law Journal
Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …
Defining Religion And Accommodating Religious Exercise, Justin Collings, Anna Bryner
Defining Religion And Accommodating Religious Exercise, Justin Collings, Anna Bryner
Indiana Law Journal
It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also …
The Procedural Justice Industrial Complex, Shawn E. Fields
The Procedural Justice Industrial Complex, Shawn E. Fields
Indiana Law Journal
The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …
Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino
Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino
IP Theory
The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second …
The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang
The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang
IP Theory
The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.
Will the copyright regime continue …
Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla
Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla
IP Theory
Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …
What's Not Natural Phenomena? Let's Consider A Three-Step Innovative Concept Test For Composition Of Matter Claims, Sydney Hancock
What's Not Natural Phenomena? Let's Consider A Three-Step Innovative Concept Test For Composition Of Matter Claims, Sydney Hancock
IP Theory
Biotechnology innovation is rapidly growing, especially in the realm of biotech. This growth leads to questions about patent subject matter eligibility of natural phenomena. For example, currently the human genome and microbiome are being extensively studied, bacteriophages are being edited, animals are being cloned, and CRISPR is widespread. Additionally, composition of matter patent claims give the most protection to patent holders. Therefore, knowing when a natural phenomenon veers into human innovation is important for courts, lawyers, and innovators in the era of biotechnology and genetic engineering.
Part I discusses the history of Supreme Court cases on natural phenomena subject matter …
A Closer Look At The "Eye" Test: The British Influence On Early American Design Patent Infringement Law, Mark D. Janis
A Closer Look At The "Eye" Test: The British Influence On Early American Design Patent Infringement Law, Mark D. Janis
IP Theory
The Supreme Court has asserted that “[t]he Patent Clause in our Constitution ‘was written against the backdrop’ of the English system.” That notion has a long lineage. In 1818, the author of an anonymous “Note on the Patent Laws,” widely assumed to be Justice Story, claimed that “[t]he patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject.”
But these generalizations significantly overstate—and oversimplify—the influence of British law on the nascent American jurisprudence of patents. Early American jurists felt no reluctance …
Taxation Of Intellectual Property Litigation, Chitra A. Ram
Taxation Of Intellectual Property Litigation, Chitra A. Ram
IP Theory
In the field of intellectual property law, few attorneys consider the tax implications of legal proceedings prior to undertaking litigation. In studying the interdisciplinary space between intellectual property law, litigation, and taxation practices, this Article hopes to further expand existing research on the scope and incentives behind intellectual property protection in the United States, the policies underlying the system of federal income taxation adopted by the United States, and the precedents upheld by courts in deciding matters at the nexus of intellectual property litigation costs, expenses, and taxation.
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Indiana Journal of Law and Social Equality
“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” - Justice Anthony Kennedy, Lawrence v. Texas (2003)
This Note will first focus on a historical analysis of originalist constitutional interpretation, drawing attention to initial disparities in the Constitution incompatible with our current social context. It will discuss modern originalism as a method of perpetuating systemic shortcomings, drawing specific attention to originalist interpretation as a method of oppression against white women and people of color, specifically Black women. In analyzing the harm originalism does to …
Fair’S Fair: How Public Benefit Considerations In The Fair Use Doctrine Can Patch Bias In Artificial Intelligence Systems, Patrick K. Lin
Fair’S Fair: How Public Benefit Considerations In The Fair Use Doctrine Can Patch Bias In Artificial Intelligence Systems, Patrick K. Lin
Indiana Journal of Law and Social Equality
The impact of artificial intelligence (AI) expands relentlessly despite well documented examples of bias in AI systems, from facial recognition failing to differentiate between darker-skinned faces to hiring tools discriminating against female candidates. These biases can be introduced to AI systems in a variety of ways; however, a major source of bias is found in training datasets, the collection of images, text, audio, or information used to build and train AI systems. This Article first grapples with the pressure copyright law exerts on AI developers and researchers to use biased training data to build algorithms, focusing on the potential risk …
Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway
Incombustible Ideas: Evaluating The Impact Of Federal Court Opinions Regarding Book Banning In Public-School Libraries, Noah T. Holloway
Indiana Journal of Law and Social Equality
No abstract provided.
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Indiana Journal of Law and Social Equality
No abstract provided.
Protection And Prevention: The Shortcomings Of U.S. Copyright Law In Combatting Cultural Appropriation In The Fashion Industry, Luke E. Steffe
Protection And Prevention: The Shortcomings Of U.S. Copyright Law In Combatting Cultural Appropriation In The Fashion Industry, Luke E. Steffe
IP Theory
American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their …
The Social Value Of Intellectual Property, Alina Ng Boyte
The Social Value Of Intellectual Property, Alina Ng Boyte
IP Theory
No abstract provided.
Encouraging Public Access To Pharmaceuticals Through Modified Protection Of Clinical Trial Data, Scott M. Nolan Ii
Encouraging Public Access To Pharmaceuticals Through Modified Protection Of Clinical Trial Data, Scott M. Nolan Ii
IP Theory
Part I of this Article investigates the development of pharmaceuticals and clinical trial data with a focus on patent and data protection. Part II evaluates the effects of protection and the challenges it poses to widespread public pharmaceutical access. Part III discusses two scholarly approaches to the public access issue that focus on clinical data protection and their associated challenges. In light of these scholarly works, Part IV suggests a new approach to clinical trial data protection that aims to improve public pharmaceutical access while maintaining the incentives to invent for drug developers.
The Irrationality Of Child Support Enforcement In The United States: Harming Children And Punishing The Poor, Hannah Pitcher
The Irrationality Of Child Support Enforcement In The United States: Harming Children And Punishing The Poor, Hannah Pitcher
Indiana Journal of Law and Social Equality
No abstract provided.
Syringe Service Programs In Indiana: Moving Past The “Moral” Concerns Of Harm Reduction Towards Effective Legislation, Steven Nisi
Syringe Service Programs In Indiana: Moving Past The “Moral” Concerns Of Harm Reduction Towards Effective Legislation, Steven Nisi
Indiana Journal of Law and Social Equality
No abstract provided.
Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty
Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty
Indiana Journal of Law and Social Equality
No abstract provided.
An Old Illness: How The United States Uses Racist And Xenophobic Ideas About Disease To Exclude Haitian Migrants During The Covid-19 Pandemic, Emily Mcconnville
An Old Illness: How The United States Uses Racist And Xenophobic Ideas About Disease To Exclude Haitian Migrants During The Covid-19 Pandemic, Emily Mcconnville
Indiana Journal of Law and Social Equality
No abstract provided.
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
IP Theory
The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …
Jury-Related Errors In Copyright, Zahr K. Said
Jury-Related Errors In Copyright, Zahr K. Said
Indiana Law Journal
Copyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing. Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the …