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Indiana Law Journal

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Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr. Apr 2018

Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr.

Indiana Law Journal

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for demo-cratic self-government to function, the voters themselves must possess the infor-mation necessary to hold the government accountable. Yet, the information neces-sary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically im-portant information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election ...


The Fragile Menagerie: Biodiversity Loss, Climate Change, And The Law, James M. Chen Apr 2018

The Fragile Menagerie: Biodiversity Loss, Climate Change, And The Law, James M. Chen

Indiana Law Journal

I. THE HIPPODROME OF THE GODS: RACING AGAINST ECOLOGICAL AND EVOLUTIONARY APOCALYPSE - p. 304

II. ACROSS THE APOCALYPSE ON HORSEBACK: LEGAL RESPONSES TO BIODIVERSITY LOSS - p. 310

A. OVERKILL - p. 310

B. ALIEN INVASIVE SPECIES - p. 316

C. HABITAT DESTRUCTION AND PUBLIC LAND MANAGEMENT - p. 321

  1. ISLAND BIOGEOGRAPHY - p. 321
  2. PUBLIC LANDS MANAGEMENT - p. 325

III. THE ENDANGERED SPECIES ACT: FROM PRIVATE LANDS TO GLOBAL COMMONS - p. 329 A. ENDANGERED SPECIES ACT MECHANICS - p. 330

  1. LISTING ENDANGERED AND THREATENED SPECIES - p. 330
  2. CRITICAL HABITAT - p. 333
  3. INTERAGENCY CONSULTATION - p. 333

B. HABITAT CONSERVATION ON PRIVATE LANDS - p. 335

C. ΑΡΚΤΟΎΡΟΣ ...


Fourth Amendment Localism, Wayne A. Logan Apr 2018

Fourth Amendment Localism, Wayne A. Logan

Indiana Law Journal

INTRODUCTION - p. 370

I. SUBNATIONAL CONSTITUTIONALISM - p. 376

A. SUBSTANTIVE LAW - p. 377

B. GEOGRAPHY - p. 379

C. RESOURCES - p. 381

II. THE LOCALISTS - p. 382

A. “NEW DEMOCRATISTS” - p. 383

B. “NEW ADMINISTRATIVISTS” - p. 386

C. SUMMARY - p. 389

III. ASSESSING LOCALISM’S LIMITS - p. 391

A. TAILORING - p. 391

B. EXPERIMENTATION - p. 399

C. TIEBOUT SORTING AND EXTERNALITIES - p. 404

IV. WHITHER FOURTH AMENDMENT LOCALISM - p. 408

A. FOURTH AMENDMENT EXCEPTIONALISM - p. 409

  1. INDIVIDUAL INTERESTS - p. 409
  2. STRUCTURAL DEMOCRATIC INTERESTS - p. 411
  3. COMPARATIVE DISTINCTIVENESS - p. 413

B. “LEVELING UP” FOURTH AMENDMENT DOCTRINE - p. 416

CONCLUSION - p. 419


Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars Apr 2018

Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars

Indiana Law Journal

This Article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable de-creases suicide by 10.7%. These countervailing effects can be explained ...


Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English Apr 2018

Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English

Indiana Law Journal

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the ...


The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim Apr 2018

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept ...


The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider Apr 2018

The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider

Indiana Law Journal

Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism,1 yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with ...


Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi Apr 2018

Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi

Indiana Law Journal

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the ...


The Limits On Congress's Power To Do Nothing: A Preliminary Inquiry, William P. Marshall Jan 2018

The Limits On Congress's Power To Do Nothing: A Preliminary Inquiry, William P. Marshall

Indiana Law Journal

As Part I of this Essay will show, arguments for limiting Congress’s authority to do nothing are not readily found in history, text, or constitutional structure. Part I concludes, however, that the need for establishing some constitutional limits on congressional inaction is nevertheless compelling because of the seriousness of the dangers involved. Accordingly, Part II goes on to advance an approach that would limit Congress’s power to do nothing in certain circumstances. Specifically, Part II proposes an approach that would limit Congress’s power to do nothing based on the type of power that Congress is (or is ...


The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner Jan 2018

The "Lower" Federal Courts: Judging In A Time Of Trump, Nancy Gertner

Indiana Law Journal

To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude ...


Undue Burdens And Potential Opportunities In Voting Rights And Abortion Law, Pamela S. Karlan Jan 2018

Undue Burdens And Potential Opportunities In Voting Rights And Abortion Law, Pamela S. Karlan

Indiana Law Journal

One of the problems with the way we have tried to build a more just constitutional law is our failure to see, and then to make the most of, doctrinal connections across constitutional subfields—that is, to build constitutional bridges. This Essay seeks to build one such bridge between two areas of legal doctrine that might seem relatively disconnected from one another: voting rights and reproductive justice.

Many years ago, I joked about one aspect of that connection: “Redistricting, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology, and often a need ...


"A Few Bad Apples": How The Narrative Of Isolated Misconduct Distorts Civil Rights Doctrine, Chiraag Bains Jan 2018

"A Few Bad Apples": How The Narrative Of Isolated Misconduct Distorts Civil Rights Doctrine, Chiraag Bains

Indiana Law Journal

In Parts I and II, I examine precedents involving the two broad topics with which this Essay began: policing and race, respectively. The narrative is perhaps more familiar in the policing context. Attorney General Jeff Sessions articulated it succinctly in a March 2017 memo ordering the reevaluation of all consent decrees the Justice Department had entered with police departments because “[t]he misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe.”4 The narrative applies with respect to race, as well, although ...


Foreword, Dawn Johnsen Jan 2018

Foreword, Dawn Johnsen

Indiana Law Journal

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.


The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias Jan 2018

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Indiana Law Journal

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more ...


Ordinariness As Equality, Elise C. Boddie Jan 2018

Ordinariness As Equality, Elise C. Boddie

Indiana Law Journal

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”

Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness. It discusses these points through the lens of a true ...


Trump, The Court, And Constitutional Law, Erwin Chemerinsky Jan 2018

Trump, The Court, And Constitutional Law, Erwin Chemerinsky

Indiana Law Journal

In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These ...


Trump As Constitutional Failure, Jamal Greene Jan 2018

Trump As Constitutional Failure, Jamal Greene

Indiana Law Journal

As Part I explains, the American constitutional system assumes a certain sort of democratic culture. That assumption is encapsulated in Chief Justice John Marshall’s dictum, in M’Culloch v. Maryland, that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” The U.S. Constitution indeed lacks “the prolixity of a legal code,” but subsequent history confirms that its relative sparseness is not, as Marshall maintained, because it is “a constitution we are expounding.” The U.S. Constitution is among the world’s least prolix and most ...


The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger Jan 2018

The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger

Indiana Law Journal

The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and fairness. Tax policy provides one central context in which collective judgments about fundamental values help form national identity. We believe that a national wealth tax (that is, a tax on individuals’ net worth) should be among the policy options under consideration to support vital infrastructure, social service, and other governmental functions. Although not a new concept, a wealth tax may be an idea whose time has come, as inequality soars toward record highs.

Our aim in this Essay is ...


Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel Jan 2018

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Indiana Law Journal

I will argue that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play ...


Prochoicelife: Asking Who Protects Life And How -- And Why It Matters In Law And Politics, Reva Siegel Jan 2018

Prochoicelife: Asking Who Protects Life And How -- And Why It Matters In Law And Politics, Reva Siegel

Indiana Law Journal

In this Essay I reason from a “prochoicelife” perspective that asks whether government protects new life by means that respect women’s reproductive decisions. I develop a framework that allows us to compare the policies for protecting new life that governments choose and the values they demonstrate. This Essay’s critical framework connects policies on sexual education, contraception, abortion, health care, income assistance, and the accommodation of pregnancy and parenting in the workplace. It shows that some jurisdictions protect new life selectively, favoring policies for protecting new life that restrict women’s reproductive decisions over policies that respect women’s ...


Utopian Thinking For Progressive Constitutionalists, Mark Tushnet Jan 2018

Utopian Thinking For Progressive Constitutionalists, Mark Tushnet

Indiana Law Journal

The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly ...


Military Officers And The Civil Office Ban, Stephen Vladeck Jan 2018

Military Officers And The Civil Office Ban, Stephen Vladeck

Indiana Law Journal

In the symposium Essay that follows, I aim to push back against this impression by introducing readers to an important—but little-known—constraint on the militarization of civilian government: the ban on active-duty military officers holding “civil office” codified today at 10 U.S.C. § 973(b). Like its far-better-known contemporary, the Posse Comitatus Act of 1878, the civil office ban was enacted after the Civil War as a means of limiting the ability of the military to exercise control over civilian matters. As the Ninth Circuit put it in 1975, its purpose was “to assure civilian preeminence in government ...


Is The Second Amendment Becoming Irrelevant?, A Winkler Jan 2018

Is The Second Amendment Becoming Irrelevant?, A Winkler

Indiana Law Journal

Why might the Second Amendment cease to serve this vital constitutional function? The explanation begins with the difference between how the Second Amendment is invoked in political debates and how the amendment is invoked in court. There are, it seems, two Second Amendments. There is a Judicial Second Amendment comprised of court decisions interpreting the provision, and there is an Aspirational Second Amendment that is used in political dialogue. These two versions of the Second Amendment are different; the aspirational one is far more hostile to gun laws than the judicial one.

Moreover, the Aspirational Second Amendment is overtaking the ...


The Death Of Rules And Standards, Anthony J. Casey, Anthony Niblett Oct 2017

The Death Of Rules And Standards, Anthony J. Casey, Anthony Niblett

Indiana Law Journal

Scholars have examined the lawmakers’ choice between rules and standards for decades. This Article, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form—the microdirective—which will provide the benefits of both rules and standards without the costs of either. Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a ...


User-Friendly Taxpaying, Kathleen Delaney Thomas Oct 2017

User-Friendly Taxpaying, Kathleen Delaney Thomas

Indiana Law Journal

Technology is revolutionizing our lives. With the touch of a button or a simple voice command, we can instantly order groceries, get directions, or find the nearest sushi restaurant. Sensibly, the private sector has capitalized on these recent innovations to drive up profits. To sell more laundry detergent, Amazon now enables consumers to order refills by simply pressing the “dash button” mounted above their laundry machines. Starbucks lures more customers by allowing them to pre-order online and have their drink waiting when they arrive at the store. The theory behind this approach is simple: if you want someone to use ...


Collateral Visibility: A Socio-Legal Study Of Police Body Camera Adoption, Privacy, And Public Disclosure In Washington State, Bryce Clayton Newell Oct 2017

Collateral Visibility: A Socio-Legal Study Of Police Body Camera Adoption, Privacy, And Public Disclosure In Washington State, Bryce Clayton Newell

Indiana Law Journal

Law enforcement use of body-worn cameras has become a subject of significant public and scholarly debate in recent years. This Article presents findings from a study of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s public records act, state privacy law, and original empirical findings related to officer attitudes about—and perceptions of—the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law ...


Taking Systemic Risk Seriously In Financial Regulation, Todd Henderson, James C. Spindler Oct 2017

Taking Systemic Risk Seriously In Financial Regulation, Todd Henderson, James C. Spindler

Indiana Law Journal

Bank regulation failed in the run up to the financial crisis of2008, as it has numerous times in the course of U.S. history. This is despite the existence of traditional prudential regulation, such as capital adequacy mandates, reserve requirements, and bank examination, as well as more common legal remedies, such as tort and contract litigation. Unsurprisingly, in the wake of these failures, many reforms have been proposed, and some adopted, to try to reduce bank risk taking. These reforms include limiting bank size, requiring bank managers to be paid differently, restricting investment in high-risk financial products, and, of course ...


Substitute And Complement Theories Of Judicial Review, David E. Landau Oct 2017

Substitute And Complement Theories Of Judicial Review, David E. Landau

Indiana Law Journal

Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, “political safeguard” theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary—judges are unlikely to succeed in their projects unless they have sufficient assistance ...


International Law In National Schools, Ryan M. Scoville Oct 2017

International Law In National Schools, Ryan M. Scoville

Indiana Law Journal

Why is international law ineffective at times in achieving its aims, such as preventing human rights abuses, forestalling armed conflict, and ensuring global cooperation on matters ranging from the environment to nuclear proliferation? This Article offers original empirical research to suggest that an important and underappreciated part of the answer lies in legal education. Conducting a global survey on the study of international law at thousands of law schools in over 190 countries, the Article reveals significant cross-national disparities in the pervasiveness of international legal training, and draws on other research to highlight similar variations in instructional quality, topical emphases ...


"To Hell In A Handbasket": Teachers, Free Speech, And Matters Of Public Concern In The Social Media World, Jessica O. Laurin Oct 2017

"To Hell In A Handbasket": Teachers, Free Speech, And Matters Of Public Concern In The Social Media World, Jessica O. Laurin

Indiana Law Journal

This Note argues that courts should narrow the scope of examined speech and place little weight on the amount of media attention that the speech received. Although courts sometimes reject First Amendment protection on the Pickering balancing test instead of the public concern issue, the public concern requirement is a threshold issue that plays a critical role in successful First Amendment claims. Accordingly, courts need to revisit the public concern doctrine to ensure that its analysis is sound and yields the correct outcome.

Part I provides background concerning retaliation claims, criticism of the public concern requirement, and special issues that ...