Digital Commons Network^™

Fulfilling The Promise Of The Housing Choice Voucher Program: Blind Review As An Enforcement Method For Source-Of-Income Antidiscrimination Laws, Zachary Wakefield

Indiana Journal of Law and Social Equality

The housing choice voucher program (HCV) is one that provides subsidies to very low-income individuals. These subsidies allow recipients of the vouchers to pay thirty percent of their income out of pocket towards their rent, with the difference being paid by the subsidy from the government directly to a landlord. Although the program itself is federal, it is administered by the states at the local level. As with most housing in the United States, the Fair Housing Act protects HCV recipients from discrimination based on “race, color, religion, sex, familial status, or national origin,” regardless of the state where the …

The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, And Need (Especially In Post-Dobbs America), Deborah Widiss

Articles by Maurer Faculty

The federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.

Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such …

Blunt Speech Rights, Nicholas Almendares

Articles by Maurer Faculty

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a …

Silencing The Sex Worker, Yvette Butler

Articles by Maurer Faculty

This Article argues that sex workers are silenced when they attempt to contribute to lawmaking processes. As a result, they are unable to contribute their knowledge in a meaningful way. The consequence is that laws reflect only one perspective of life in the sex trades: the prostitution abolitionist position that all sex work is inherently a form of violence against women. Without the ability to help shape this narrative, sex workers will continue to be silenced by the allegation that they are a danger to the feminist movement, courts will make harmful rulings, and legislatures will continue to enact laws …

Valuing Esg, Aneil Kovvali, Yair Listokin

Articles by Maurer Faculty

Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for …

Misery, Melancholy, And Misfortune: A Migrant Case Study, Jayanth K. Krishnan

Articles by Maurer Faculty

There is an ongoing crisis of despair involving migrants from abroad who are seeking refuge in one of the world’s longest-standing, post-World War II democracies—India. There are roughly 4.9 million noncitizen migrants in India, with most coming from Bangladesh, Myanmar, Nepal, Pakistan, and Sri Lanka. Because these migrants often live in the shadows, they are frequently deprived of fundamental human rights.

On the one hand, it may seem surprising that this population remains so vulnerable. After all, India’s Supreme Court has been a leading institutional light in safeguarding the rights of many marginalized groups. Supreme courts in other countries point …

Conjuring The Flag: The Problem Of Implied Government Endorsements, Michael Mattioli

Articles by Maurer Faculty

This Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in …

The Sec And "Major Questions Doctrine" Questions, Donna M. Nagy

Articles by Maurer Faculty

Nearly two years ago, in the wake of the Supreme Court’s formal adoption of what it termed the “major questions doctrine,” the Wall Street Journal reported a prediction that “‘every corporate securities lawyer in America is going to now fashion their arguments against SEC rulemaking to force-fit it into [that doctrine].’” As articulated by the sharply divided 6- 3 majority in West Virginia v. EPA, major questions doctrine (MQD) analysis is warranted in certain “extraordinary cases” involving a “transformative expansion” in a federal agency’s regulatory authority that is premised on “a merely plausible textual basis for the agency action.” Extraordinariness, …

Expecting Medication Surveillance, Jennifer D. Oliva

Articles by Maurer Faculty

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

The "New" Drug War, Jennifer D. Oliva, Taleed El-Sabawi

Articles by Maurer Faculty

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure …

Selling Surveillance, Asaf Lubin

Articles by Maurer Faculty

Almost everything we do on the Internet is achieved through Internet-connected devices, such as smartphones and laptops. This reality has produced a new sprawling industry of commercial spyware corporations: a vast network of companies specializing in selling security vulnerabilities in the very devices we all use. These companies provide clients with tools and services for unauthorized access and surveillance. Investigative reporting has unearthed the scope and nature of the systematic abuses produced by these technologies. Around the world, government actors rely on spyware to target human rights activists, journalists, and dissidents with almost no accountability.

Spyware companies have long defended …

In Pursuit Of Collective Liberation In Feminist Constitutionalism, Yvette Butler

Articles by Maurer Faculty

A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.

What Fischer V. United States Gets Wrong About Prosecutorial Discretion, Cindy J. Cho

Articles by Maurer Faculty

Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021.  Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical.

This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases.  A survey of ten January 6 cases …

Mending A Broken Ethics Culture: The Promise And Pitfalls Of The Supreme Court's, Charles G. Geyh

Articles by Maurer Faculty

The Judicial Conference of the United States has done an admirable job of embedding its code of conduct into the culture of the federal courts and creating an ethical climate within the federal judiciary. The ethics culture on the Supreme Court, in contrast, is quite different, as reflected in the recent litany of ethical problems the Justices have encountered, the Court's longstanding hostility to proposals for it to adopt a code, and the defensive tone of the new code itself. Legal scholarship analogizing judges to priests in a faith-based constitutional order underscores the need for judges to be true believers …

Private Climate Governance Of Finance: "Net Zero" Prospects And Politics., Cynthia A. Williams

Articles by Maurer Faculty

In 2021, as part of the COP26 climate negotiations in Glasgow, the Glasgow Financial Alliance for Net Zero (“GFANZ”) was announced. This Alliance of banks, asset managers, and insurance companies, among other financial institutions, with more than $130 trillion of assets under management when announced, was based on a pledge by the participating companies to work towards net-zero status in their businesses by 2050 or sooner. Led by former UK Bank of England Governor Mark Carney, who is now the U.N.’s Special Envoy on Climate, it seemed to have some promise as a “soft law” governance mechanism to develop voluntary …

Cutting The Gordian Knot: Legislative Courts And Due Process, Martin H. Redish, Austin Piatt

Indiana Law Journal

Legislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle it will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants.

That is where due process comes in. Despite the fundamental …

On Copyright Utilitarianism, Patrick R. Goold, David A. Simon

Indiana Law Journal

Utilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so …

State Taxes And "Pike Balancing", Bradley W. Joondeph

Indiana Law Journal

For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce …

Content Moderation Regulation As Legal Role-Scripting, Sari Mazzurco

Indiana Law Journal

Lawmakers and scholars concerned with content moderation regulation typically appeal to “analogies” to justify or undermine different forms of regulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are “like” speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores.

Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are “right” and “wrong” within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what …

The Supreme Court, Constitutional Development, And Evolution Theory: A Critique, Charles M. Lamb Ph.D., Jacob R. Neiheisel

Indiana Law Journal

This article spotlights how University of Chicago Professor David Strauss’s publications present the early stages of a descriptive theory of constitutional interpretation and evolution, and how his theoretical contributions might be strengthened. Specifically highlighted here are ten milestone Supreme Court rulings with the objective of determining which were “evolutionary” as opposed to “modernizing,” based on Strauss’s theoretical formulations. On various occasions these cases demonstrate how Strauss’s theory can be not only refined but broadened. The concluding section assesses Strauss’s contribution to the study of American constitutional development and how it might be revamped. There we argue that despite Strauss’s influence …

Counterman V. Colorado: True Threats, Speech Harms, And Missed Opportunities, R. George Wright

Indiana Law Journal

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.

The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure …

Framing Online Speech Governance As An Algorithmic Accountability Issue, Mehtab Khan

Indiana Law Journal

Automated tools used in online speech governance are prone to errors on a large-scale yet widely used. Legal and policy responses have largely focused on case-by-case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I …

A New Criminal Response Framework: Rejecting The "Four Horsemen Of The Carceral State", George Glass

Indiana Law Journal

Many first-year criminal law courses begin with a discussion of the nineteenth-century English case Regina v. Dudley & Stephens. In this case, a ship was caught in a storm, and while stranded at sea, two men decided to kill and eat a younger man in order to survive. The case considers whether these two men should be punished for killing the third man, and if so, how severe should that punishment be. For many law students, this is one of the rare occasions when they are asked whether punishment is justified. Soon, they will instead be asked which of the …

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 …

Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell

Indiana Journal of Law and Social Equality

Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …

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 …

Comparative Intellectual Property & Religion, Tabrez Y. Ebrahim

IP Theory

This Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy …

Coping With Coppa: Exploring Alternatives To The Children's Online Privacy Protection Act, Andrew Parra

Indiana Journal of Law and Social Equality

The Children’s Online Privacy Protection Act of 1998 (COPPA) stands as one of the greatest protectors of children’s privacy for nearly twenty-five years. However, COPPA has struggled to keep pace with technological changes during this time, and the COVID-19 pandemic highlighted the shortcomings of COPPA regulations as children were forced to spend increased amounts of time in digital spaces. As the Federal Trade Commission (FTC) is set to make changes to COPPA, it is necessary to consider what changes would be most beneficial to protect children. This paper will explore the current regulatory framework, its strengths and weaknesses, and then …

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 Private Law Of Self-Help, João Marinotti

Articles by Maurer Faculty

Individuals regularly take steps to protect themselves, their property, and their broader legal interests. They carry pepper spray, have guard dogs, and install fences. Such measures are colloquially deemed methods of self-help. Yet, despite its ubiquity, self-help as a legal concept has been chronically understudied. Consequently, American private law is missing a doctrinally coherent and prescriptively useful framework for self-help. As a matter of legal theory, this conceptual void is problematic in and of itself; the doctrinal incoherence stemming from this analytical gap decreases the law’s stability and undermines its predictability.

But the concern is not merely theoretical. The magnitude …