Digital Commons Network^™

Vol. 62, No. 02 (January 24, 2022)

Indiana Law Annotated

No abstract provided.

Vol. 62, No. 01 (January 17, 2022)

Indiana Law Annotated

No abstract provided.

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Lexipol's Fight Against Police Reform, Ingrid V. Eagly, Joanna C. Schwartz

Indiana Law Journal

We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force.

This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards. Founded in 2003, Lexipol now writes police policies and trainings for over one-fifth of American law enforcement agencies. As this Article …

Bostock And Contact Theory: How Will A Single U.S. Supreme Court Decision Reduce Prejudice Against Lgbtq People?, Mantas Grigorovicius

Indiana Law Journal

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that antidiscrimination laws help to “lead and guide the folkways,” and this Comment explores how …

Mandating Board Diversity, Sung Eun (Summer) Kim

Indiana Law Journal

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who selfidentifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort …

What Will The “Foreseeable Future” Bring For Climate- Imperiled Species?, Olivia Bauer

Indiana Law Journal

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the …

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Worth A Shot: Encouraging Vaccine Uptake Through "Empathy", Jody L. Madeira

Articles by Maurer Faculty

Pro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.

This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies …

Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform, David Gamage, John R. Brooks

Articles by Maurer Faculty

The U.S. income tax system is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is magnified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful.

The conventional view among tax law experts has assumed that the problems created by the realization doctrine …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

“The Virus Of Liberty”: John Perry Barlow, Internet Law, And Grateful Dead Studies, Joseph A. Tomain

Articles by Maurer Faculty

In 2019, the Duke Law and Technology Review published a special issue titled, "The Past and Future of the Internet: A Symposium for John Perry Barlow." This essay examines the legal scholarship in the Barlow symposium and frames it in the interdisciplinary terms of Grateful Dead studies. Part I focuses on the two Barlow essays that formed the basis of the symposium. Part II connects issues raised by the Barlow symposium to Grateful Dead studies. The essay concludes that Barlow's legacy should inspire others to engage both the cultural and political paths with “groundless hope,” because protecting the “inexplicable pleasures …

The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan

Articles by Maurer Faculty

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful …

Climate Change, West Virginia V. Epa, And The Sec's Distinctive Statutory Mandate., Cynthia A. Williams, Donna M. Nagy, Jill E. Fisch, George S. Georgiev

Articles by Maurer Faculty

In March 2022, the Securities and Exchange Commission (SEC) proposed a rule that would require publicly traded companies to provide investors with various climate-related disclosures. See The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 Fed. Reg. 21344 (Apr. 11, 2022) (the Proposal). The rule has generated extensive debate; to date, the SEC has received more than 4,000 substantive comment letters and more than 10,000 form letters. Commenters have raised a variety of concerns about the Proposal, including questioning the extent to which the SEC has the authority to mandate climate-related disclosure. Since the Supreme Court’s June 2022 ruling …

Can Social Science Teach Congress New Tricks?: Addressing The Need For Educational Support Dogs In Classrooms, Elaina H. Wilson

Indiana Law Journal

In the United States, children with disabilities are afforded protections in three federal statutes: the Individuals with Disabilities Education Act; Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990. However, these laws fail to provide for educational support dogs in public schools, despite the common and successful use of educational support dogs in other countries. The success of educational support dogs abroad is not suprising, as recent waves of social science research make clear the benefits of dogs in schools, from increased productivity within the classroom to improved morale within the school community …

Do Social Movements Spur Corporate Change? The Rise Of “Metoo Termination Rights” In Ceo Contracts, Rachel Arnow-Richman, James Hicks, Steven Davidoff Solomon

Indiana Law Journal

Do social movements spur corporate change? This Article sheds new empirical and theoretical light on the issue through an original study of executive contracts before and after MeToo. The MeToo movement, beginning in late 2017, exposed a workplace culture seemingly permissive of high-level, sex-based misconduct. Companies typically responded slowly and imposed few consequences on perpetrators, often allowing them to depart with lucrative exit packages. Why did companies reward rather than penalize bad actors, and has the movement disrupted this culture of complicity?

The passage of time since the height of the movement allows us to investigate these issues empirically, using …

"On The Eve Of Destruction": Courts Confronting The Climate Emergency, Mary Christina Wood

Indiana Law Journal

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no …

Possessing Intangibles, João Marinotti

Articles by Maurer Faculty

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

Weathering State And Local Budget Storms: Fiscal Federalism With An Uncooperative Congress, David Gamage, Darien Shanske, Gladriel Shobe, Adam Thimmesch

Articles by Maurer Faculty

Throughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal …

The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones

Articles by Maurer Faculty

Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.

Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …

The Right To Privacy And Data Protection In Times Of Armed Conflict, Asaf Lubin, Russell Buchan

Books & Book Chapters by Maurer Faculty

Contemporary warfare yields a profound impact on the rights to privacy and data protection. Technological advances in the fields of electronic surveillance, predictive algorithms, big data analytics, user-generated evidence, artificial intelligence, cloud storage, facial recognition, and cryptography are redefining the scope, nature, and contours of military operations. Yet, international humanitarian law offers very few, if any, lex specialis rules for the lawful processing, analysis, dissemination, and retention of personal information. This edited anthology offers a pioneering account of the current and potential future application of digital rights in armed conflict.

In Part I Mary Ellen O’Connell, Tal Mimran and Yuval …

La Liberté D’Expression Aux États-Unis Et En France, Elisabeth Zoller

Books & Book Chapters by Maurer Faculty

A chapter from the Ministry's report, RÉPUBLIQUE ÉCOLE LAÏCITÉ

"Should Supreme Court Justices Fear Access To Their Papers? An Empirical Study Of The Use Of Three Archival Collections", Susan Demaine, Benjamin J. Keele

Books & Book Chapters by Maurer Faculty

Susan deMaine's contribution to this volume is "Should Supreme Court Justices Fear Access to Their Papers? An Empirical Study of the Use of Three Archival Collections." Co-authored by Benjamin J. Keele.

US. Supreme Court justices typically donate their working papers to archives upon their retirement, often with lengthy embargoes. 1 Researchers have debated whether the justices should be required to retain and disclose their papers as government · records, but there has been little study of how the papers are used in scholarly and journalistic discussions of the Court.· This empirical study examines how the papers of Justices William Brennan, …

"Exploring Citation Count Methods Of Measuring Faculty Scholarly Impact", Margaret Kiel-Morse

Books & Book Chapters by Maurer Faculty

Margaret Kiel-Morse's contribution to this volume is "Exploring Citation Count Methods of Measuring Faculty Scholarly Impact."

After US News & World Report's announcement in 2019 that they will provide a separate ranking of law schools based on faculty scholarly impact, scrutinizing the various methods of assessing scholarly impact has been a hot topic. The various methods include reputation surveys, citation counts, and publication counts. This paper focuses on citation counts. Several methods of conducting citation counts have been circulated since the 1990s, notably Brian Leiter 's studies using Westlaw 's Law Reviews and Journals database; the Leiter study updates conducted …

"Capturing Impact: Telling The Story Of Your Scholarship Beyond The Citation Count", Ashley A. Ahlbrand

Books & Book Chapters by Maurer Faculty

Ashley Ahlbrand's contribution to this volume is "Capturing Impact: Telling the Story of Your Scholarship Beyond the Citation Count."

When we conduct research, what is our end goal? Who is our audience? Since the mid-20th century, with the development, first, of journal citation indexes, then journal impact factors, then journal citation metrics for individuals, academia has seen increased pressure to publish and be cited in journals within one 's discipline. These citation metrics are used to compare schools and to evaluate scholars for promotion and tenure, for grant consideration, and for bestowing other awards and honors. Discipline-specific journal citations tend …

Racial And Ethnic Ancestry Of The Nation's Black Law Students: An Analysis Of Data From The Lssse Survey, Kevin D. Brown, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

This article proceeds in three substantive parts. In Part I, we discuss the changing racial and ethnic ancestries of Black people in the United States since affirmative action began. In Part II, we discuss the LSSSE data set that we use along with our weighting procedure based on the ABA data. Also in Part II, we discuss the Public Use Microdata Sample (PUMS), a subset of the American Community Survey (ACS). We use the ACS PUMS to provide comparative national data to analyze the relative representation of each group of Blacks among law students. In Part III, we present the …

Organized For Service: The Hicks Classification System And The Evolution Of Law School Curriculum, John L. Moreland

Articles by Maurer Faculty

This article traces the origins and development of the Hicks Classification System, an in-house organizational scheme used by the Yale Law Library from the late 1930s to the 1990s. It explores the relationship between the Hicks Classification System and the changing pedagogical methods of the law school curriculum during the early part of the 20th century. It provides a brief biographical sketch of Frederick C. Hicks, creator of the scheme, the need for a legal classification system, a detailed analysis of Hicks’s scheme, its finding aids, and a discussion of the inherent cultural biases in the system.