Digital Commons Network^™

Vol. 64, No. 06 (February 20, 2023)

Indiana Law Annotated

No abstract provided.

Vol. 64, No. 05 (February 13, 2023)

Indiana Law Annotated

No abstract provided.

Vol. 64, No. 04 (February 6, 2023)

Indiana Law Annotated

No abstract provided.

Vol. 64, No. 02 (January 23, 2023)

Indiana Law Annotated

No abstract provided.

Time Off Work For Menstruation: A Good Idea?, Deborah Widiss

Articles by Maurer Faculty

In February 2023, Spain became the first European country to guarantee “menstrual leave” for workers, joining several countries, mostly in East Asia, that have long done so. It has also become increasingly common for companies to offer paid time off to menstruators as a discretionary benefit. Reports on these developments are almost always accompanied by criticism from self-identified feminists voicing concern that the policies will spur discrimination against women or reinforce stereotypes about menstruators as incapable workers. This echoes earlier arguments over maternity leave. In their groundbreaking book, Menstruation Matters, Bridget Crawford and Emily Waldman expose myriad ways in which …

The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein

Articles by Maurer Faculty

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …

Situating Structural Challenges To Agency Authority Within The Framework Of The Finality Principle, Harold J. Krent

Indiana Law Journal

No abstract provided.

The Curtailment Of Constitutional Rights And Mechanisms Of Social Control In The People's Republic Of China: Hubei Province Case At The Onset Of The Covid-19 Pandemic, Fabio Ratto Trabucco

Indiana Journal of Global Legal Studies

This paper analyzes the curtailment of constitutional rights arising from the implementation of emergency measures due to the COVID-19 pandemic in China’s Hubei Province, which was not at all counterbalanced by introducing new forms of due constitutional protection. Likewise, high expectations cannot be set on pre-existing means of constitutional safeguards since the Chinese government clearly refused to establish new or different safeguarding procedures nor did it deem it necessary to establish ad hoc courts in order to tackle the COVID-19 pandemic. The paper is laid out as follows: (1) fundamental rights in a contemporary socialist state: an overview; (2) containment …

Introduction: The Risk Of Digitalization: Transforming Government Into A Digital Leviathan, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This paper provides an overview of the threats posed by digitalization, particularly with regard to the public sector. It starts by describing digital risks as true global risks and argues that their scope and severity have not been recognized until now. The most well-known challenges come from the transformation of the private sector (economy, society, and individuals) and the emergence of large private powers that dominate the digital environment (digital feudal lord). However, there are even greater challenges coming from the digitization of government, creating almighty public bodies detached from laws that kept them locked until now.

Neurorights And New Charts Of Digital Rights: A Dialogue Beyond The Limits Of The Law, Rafael Yuste

Indiana Journal of Global Legal Studies

In this article, the authors address some of the most pressing issues that stem from the relationship between the technological advancements of the twenty-first century and legal regulation. The development of neurotechnology and artificial intelligence (AI), while offering considerable opportunities for the betterment of social life, also poses unprecedented risks. These challenges manifest in a wide variety of topics. Areas such as human rights treaties, antitrust law, property law, and labor law are affected by these developments. The risks associated with the unregulated use of neurotechnology and AI do not cease at the sectorial stage. Some of the values upon …

Trust In Artificial Intelligence: Analysis Of The European Commission Proposal For A Regulation Of Artificial Intelligence, Antonio Estella

Indiana Journal of Global Legal Studies

I shall start by reflecting on the importance that trust has for society (section 2). From there, I will define what is to be understood in this paper by trust (section 3). I shall then review the basis of trust (section 4) and shall make a reference to the main sources of evidence on trust (like, surveys and laboratory experiments), and to some of the results that these sources reveal on interpersonal and institutional trust (section 5). In the next section (section 6), I shall go on to analyse specifically the issue of trust in AI, will refer to the …

The Contentious Issues Of Governance By Algorithms, Gilles J. Gugielmi

Indiana Journal of Global Legal Studies

The development of computerized tools that lead to decision-making processes which apply locally defined parameters poses many questions about democracy. These questions stem from our very conception of the state and its role, going beyond the boundaries of typical administrative law. According to a popular notion that permeates the practices of most executive branches in liberal political regimes, democratic concerns are now competing with managerial concerns. In order to analyze this idea, we must study the implementation of algorithms in administrative decision-making, underscoring both the changes to the characterization of administrative decisions and the questions raised about an administrative judicial …

Socioeconomic Rights, Competition, And Systemic Neutrality: Approaching The Right(S) Contribution To Emancipatory Social Movements, Joshua Curtis

Indiana Journal of Global Legal Studies

Debate over the emancipatory potential of socioeconomic rights and their relevance to broader social movements is long-standing but is now picking up steam and taking on a life well beyond its traditionally legal disciplinary confines. This article contributes to the widening debate by emphasising the need for socioeconomic rights to be re-thought simultaneously outward (through deeper engagement with extant economic and political systems) and inward (by re-assessing various doctrines ingrained in their own construction). I pursue this ‘two-track’ methodology by first constructing a novel theory regarding the outward engagement of socioeconomic rights with competition law and policy, focusing on the …

Solving Contemporary Issues In Conservation Through A Market-Based International Park System, Ian Finley

Indiana Journal of Global Legal Studies

In 2016, the United States National Park Service celebrated its centennial, which caused a flurry of calls for reflection and recommendations for improvements for national parks.1 People began urging the national parks to reaffirm their commitment to conservation and recreation, along with encouraging more research.2 It seemed to be a natural time to revisit the original “justification for both Yosemite and Yellowstone park [that] was the protection of unique scenery in the national interest.”3 That being said, in light of developments in national parks over the last one hundred years, it is important to challenge or at least qualify that …

Managing Digital Resale In The Era Of International Exhaustion, Seth Niemi

Indiana Journal of Global Legal Studies

The Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament both guarantee copyright holders’ exclusive rights of reproduction and distribution of their copyrighted material. Starting from a similar statutory basis, United States and European Union courts have diverged in their interpretation of these protections with respect to the first sale rule for digital goods. This paper analyzes the treatment of such “digital exhaustion” arguments under copyright law between the two legal systems from both the statutory interpretations employed and the policy rationales considered. The paper concludes by discussing the implications of adoption of digital exhaustion, within international law, …

Government By Algorithms At The Light Of Freedom Of Information Regimes: A Case-By-Case Approach On Adm Systems Within Public Education Sector, María Estrella Gutierrez

Indiana Journal of Global Legal Studies

What the Houston Court qualified as “mysterious ‘black box’ impervious to challenge” was in practice a sophisticated software of many layers of calculations, which rated teachers’ effectiveness to make employment decisions. In the European Union, a system as such would fall under the Proposal for AI Regulation of 2021, which qualifies AI models in education and vocational training as “high-risk” systems. Automated decision-making systems (ADM systems), AI-driven or not, are being increasingly used by governments in public education for different purposes, such as handling applications for undergraduate admission or profiling students and teachers to assess their performance. Across cases and …

Accommodating Disabilities In The Post-Covid-19 Workplace, Barbara Hoffman

Indiana Journal of Law and Social Equality

No abstract provided.

Foreword: 2022 Law Vs. Antisemitism Symposium, Diane Kemker

Indiana Journal of Law and Social Equality

No abstract provided.

Anti-Semitism And The Overlooked Benefits Of Allowing “Hate Speech”, Michael Conklin

Indiana Journal of Law and Social Equality

No abstract provided.

What Is An English Jew?: The Legal Construction Of Jewish Identity Under The Uk Equality Act Of 2010, Lesley Klaff

Indiana Journal of Law and Social Equality

No abstract provided.

To Be Blunt: Weed Appreciate You Not Flying With Marijuana, But Current Conflicting Cannabis Law Leaves Things Hazy, Emily O'Brien

Indiana Journal of Law and Social Equality

No abstract provided.

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …

Three-Judge District Courts, Direct Appeals, And Reforming The Supreme Court’S Shadow Docket, Michael E. Solimine

Indiana Law Journal

The “shadow docket” is the term recently given to a long-standing practice of the U.S. Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently, the practice has received unusual attention inside and outside the legal community, because of its seemingly increased use by the Court in high-profile cases, with the emergency orders often sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems …

Defining Disparate Treatment: A Research Agenda For Our Times, Deborah Hellman

Indiana Law Journal

Both statutory and constitutional laws prohibiting discrimination forbid actions taken on the basis of certain traits. But rarely are those traits specifically defined. As a result, courts fill in these definitions and do so with consequential results. The boundaries they draw often determine whether or not a law, policy, or action constitutes disparate treatment on the basis of a legally protected trait. As disparate treatment calls for a significantly heavier burden of justification than does disparate impact, the key move putting laws, policies, and the acts of individuals into one category or the other happens in this definitional step.

Defining …

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Indiana Law Journal

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional, paper counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology as well, arguing that use of these systems will increase the number of warrants issued throughout the United …

The Incongruence Principle Of Evidence, Hillel Bavli

Indiana Law Journal

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law—including Bayesian inference and cognitive psychology—to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make inferences and judgments. I …

Adapting Standards Of Judicial Impartiality To Student Discipline In Higher Education: Pitfalls And Potential Learned From Title Ix Adjudications, Brennan Murphy

Indiana Law Journal

No abstract provided.

Asian American Allyship, Victor C. Romero

Indiana Journal of Law and Social Equality

No abstract provided.

Guilty Of Probable Cause: Public Arrest Records And Dignity In The Information Age, Nicholas Thompson

Indiana Journal of Global Legal Studies

The United States is exceptional among Western nations in its treatment of criminal records. Today, an estimated one-third of Americans1 bear the “modern equivalent of branding”: the publicly-accessible criminal record.2 Far from remaining locked in digital limbo, these records serve a variety of purposes, from legitimate law enforcement use to extortion against arrestees seeking to scrub their mugshots from a Google search.3 It would be natural to assume that such records result from an individual’s commission of a crime, for which the individual is duly convicted and then marked with the brand of the state for the transgression. But the …

Judicial Ethics And Identity, Charles Gardner Geyh

Articles by Maurer Faculty

This Article seeks to untangle a cluster of controversies and conundrums at the epicenter of the judiciary’s role in American government, where a judge’s identity as a person and role as a judge intersect. Part I synthesizes the traditional ethics schema, which proceeds from the premise that good judges decide cases on the basis of facts and law, unsullied by the extralegal influences of identity that make judges who they are as human beings. Part II discusses the empirical evidence, and the extent to which identity influences judicial decision- making in ways that contradict tenets of the traditional schema. Part …