Digital Commons Network^™

Reconstituting Corporate Power & Accountability, Cindy J. Cho, Donald Braman, Theresa Gabaldon

Articles by Maurer Faculty

Modern society faces a growing crisis of corporate impunity. While corporations generate immense value, they increasingly inflict harm at scales that dwarf those of traditional street crime. Decades of deregulation, unchecked corporate lobbying, and a judiciary actively dismantling the administrative state have created a dangerous accountability vacuum. And just as federal oversight is collapsing, the Supreme Court's expanding preemption doctrine is handcuffing state regulators. This Article proposes a paradigm shift: the revitalization of state criminal authority, a power largely shielded from federal interference. Upon securing a conviction or deferred prosecution agreement, states should mandate that the offending corporation conduct all …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

Climate Change And Corporate Law In The United States: Not "Woke" But Eyes Open., Cynthia A. Williams

Articles by Maurer Faculty

This Essay discusses the evidence that climate change and nature loss create financially material risks for corporations that must be carefully considered by officers and directors pursuant to their fiduciary duties of loyalty and care. This analysis concludes that under the current state of fiduciary duty law and the known financial risks presented by climate change and nature loss, officers and directors of corporations may breach their fiduciary duties by failing to implement and monitor a robust system to identify and manage each type of industry-specific climate-related and nature related risk. Risk of breach is particularly acute for entity-specific compliance …

Admissions Essays After Sffa, Sonja Starr

Indiana Law Journal

The Supreme Court concluded its 2023 decision barring affirmative action in university admissions with a qualification: Although they may not give weight to “race qua race,” universities may consider individual applicants’ discussion of race-related life experience that bears on their strengths and potential. This “essay carveout” provides a potential path forward for universities (and other entities to which the affirmative action ban may eventually apply). But the Court also warned against using it to enact “indirect” affirmative action, and legal advocates of colorblindness stand poised to challenge any use of essays that appears to stray over this line. So where …

Climate Litigation And Third-Party Litigation Finance, Courtney Geiss

Indiana Law Journal

For the last 200 years, human activities have been the main driver of global climate change, particularly the burning of fossil fuels. Increased emissions from fossil fuels have contributed to rising temperatures, food scarcity, and natural disasters, including fires, flooding, and droughts. Although climate change has been an issue in the public eye for the last several decades, global emissions are projected to continue increasing. At this point, it is clear that current actions at the individual and state level are not enough to meaningfully reduce greenhouse gas emissions. In this Note, I will discuss the idea of using third-party …

Super-Groups: Legal Empowerment And "Public Law", Matthew Lawrence

Indiana Law Journal

Not all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions that use their stategiven influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to “capture.” At the …

Seeking Safety And Losing The Self: Affirmative Action Bans And The Whitening Of Mexican American Identity, Bella Bennett

Indiana Journal of Law and Social Equality

No abstract provided.

Jbs’S Initial Public Offering: Threats To Environmental And Human Rights, Kayla Thompson

Indiana Journal of Law and Social Equality

This paper centers around the decision to be made regarding JBS, the world’s largest meat company, wanting to list shares on the New York Stock Exchange (NYSE), and the environmental and social impacts that could result from the Security and Exchange Commission’s (SEC) approval. JBS has been at the center of various controversies over the last several years, including sourcing cattle from ranches acquired through illegal deforestation, engaging in greenwashing practices, incorrectly reporting greenhouse gas emissions, and engaging in human rights abuses. Many environmental groups have filed complaints with the SEC concerning JBS’s bid to list on the NYSE. The …

Prescribing A Balance: Sustaining Environmental Health With Pharmaceutical Interest In Puerto Rico, Derek Warzel

Indiana Law Journal

Puerto Rico, often referred to as the “Medical Cabinet of the U.S.A.,” is a hub for pharmaceutical manufacturing, contributing significantly to the American medical supply chain and Puerto Rico’s economy. However, decades of industrial activity, compounded by climate events like Hurricane Maria, have led to severe environmental damage, particularly through groundwater contamination and damaged Superfund sites. This Note examines the historical intersection of economic incentives and environmental neglect in Puerto Rico, focusing on the pharmaceutical industry’s impact. By critically analyzing the Superfund program and proposing reforms, this Note advocates for a balanced approach: introducing proactive environmental protections and financial incentives …

Unconcerned And Undertrained: The Indiana Jail Death Epidemic And The Need For Expanded Jail Officer Training, Sadie Rothrock

Indiana Law Journal

On October 4, 2018, Jerod Draper lost his life after two hours of torture by Harrison County jail officers. While in custody of the jail and suffering from an overdose, Jerod Draper was placed in a restraint chair for two hours and tased seven times in fifteen minutes. Jerod Draper’s story is one of the many stories demonstrating how a jail death epidemic is occurring throughout Indiana. In this Note, I discuss the history of incarceration in the United States, the statutes under which families of jail death victims can sue, and Indiana’s jail death problem. I then highlight Indiana’s …

The Interaction Between Privacy Laws And Restrictive Licensing Agreements In Cross-Border Satellite Imagery, Ida Samardar

IP Theory

No abstract provided.

Housing As A Human Right Through Legislative Action: Comparing France And Scotland’S Enforceable Rights To Housing, Emily Peterson, Jack E. Turman Jr., Ph.D.

Indiana Journal of Law and Social Equality

No abstract provided.

The Bankruptcy Off-Ramp From Complex Civil Litigation: Purdue Pharma, Opioids, And Unorthodox Civil Procedure In Public Harms Cases, Abbe R. Gluck

Indiana Law Journal

For civil procedure scholars, bankruptcy has become exciting. Last year, the United States Supreme Court decided for the first time a case that implicated both the core of the national opioids litigation and one of the most important developments in modern civil procedure—namely, the enormous amount of unorthodox procedural innovation that is happening in the courts as parties strive to reach global settlement.

The decision, Harrington v. Purdue L.P., took almost seven months despite the grant of expedited review—an indication that the result was likely not easily reached. In June 2024, the Court, voting five to four, reversed the Second …

Conceptualizing Caremark, Roy Shapira

Indiana Law Journal

Who is accountable for corporate compliance failures? The issue of compliance has emerged as one of the most significant developments in corporate governance over the past decades. However, until recently, corporate law has had surprisingly little to say about the question, leaving the policing of issues such as toxic pollution, product safety, or data privacy, to other regulators. This situation has changed dramatically over the past few years. Today, virtually every corporate fiasco is followed by an oversight duty lawsuit against the company’s directors and officers for not doing enough to prevent the debacle. But the rapid resurgence of oversight …

Federalism, State Action, And Workers' Medical Privacy, Ani B. Satz

Indiana Law Journal

Injured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the …

Benched Judges, Anna Roberts

Indiana Law Journal

In multiple jurisdictions, if the prosecutor wants to attack the credibility of a person testifying in their own defense with that witness’s prior felony convictions, the judge has no power to say no. Judges decry their powerlessness. Their opinions reveal three types of concerns: that these convictions lack probative value on the issue of credibility, that they inflict unfair prejudice that jury instructions cannot ameliorate, and that the power transferred by these provisions from judge to prosecutor is undeserved and abused.

There is much that could be done to address these concerns. The rules could be reinterpreted or rewritten to …

The Vicious Patent Cycle: Addressing The Current Conflict Facing Startup Valuation And Patent Risk Through Policy Change, Karlie Hinton

IP Theory

Young, startup, and growth companies play an increasingly important role in driving innovation and economic growth, but they face distinct challenges when attempting to leverage valuable assets to secure funding and scale their ventures. The valuation of startup companies, especially those built around new technologies and corresponding intellectual property, presents a complex challenge. With limited financial history and uncertain futures, investors often turn to proxies like patents to ascribe potential value. In recent years, the practice of startups using patents to secure investment and higher valuations has become increasingly common. However, this growing reliance on patents raises important questions about …

Paternity, Protection, And Pirates: A Queer Theory Analysis Of Intellectual Property Metaphors, Eden Sarid

IP Theory

Intellectual Property and queer theory share a fundamental concern with the interplay between private and public, tangible and intangible, and language and form. Queer theory emphasizes how language impacts the construction of identity and belonging, highlighting that discourse plays a pivotal role in structuring gender, sexuality, and normativity. Intellectual Property is often portrayed as strictly neutral, laser-focused on spurring creativity and innovation. However, is this portrayal reflective of reality? And does this purported neutrality hold up in IP’s rhetoric? By examining two principal IP terminologies through a queer lens – the term “protection” to describe IP legal privilege, and the …

The Mathematics Of Regulatory Fragmentation: Understanding The Multiplicative Costs Of State-Level Platform Requirements, Amanda Reid

IP Theory

The recent wave of state-level social media regulation represents an unprecedented experiment in territorial control of digital platforms. While constitutional questions around state authority remain central to these debates, this article examines a distinct but complementary concern: the mathematical reality of how overlapping technical requirements multiply compliance burdens. These laws aim to protect youth online through technical mandates, yet they create a regulatory patchwork that generates multiplicative rather than additive costs. Following combination theory [N(N-1)/2], each new state regulation creates conflict points with existing requirements.

This article analyzes how this regulatory multiplication affects platform architecture, user experience, and safety outcomes. …

Under The Radar: The Hidden Harms Of Patent Practices In Defense Contracting, Hunter Schmittou

IP Theory

28 U.S.C. § 1498 allows the federal government and its contractors to use patented technologies without prior authorization, with the government assuming liability for infringement. While originally intended to facilitate procurement, its modern application has weakened patent protections, allowing contractors to incorporate patented innovations with minimal legal or financial consequences. This system disincentivizes private-sector investment in military technology, distorts competition, and increases procurement inefficiencies, ultimately placing the burden of infringement on taxpayers. The resulting imbalance not only stifles innovation but also entrenches reliance on a small group of dominant defense contractors, reducing technological diversity and slowing progress. Addressing these shortcomings …

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

Courting Bias: Effects Of Gender Socialization And Judges' Genders On Litigants And The Judiciary, Ellie Barmes

Indiana Journal of Law and Social Equality

No abstract provided.

Climate Prosecution As Climate Regulation, Cindy J. Cho

Articles by Maurer Faculty

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must …

Legal Implications Of Digital Health Apps Informing Food Allergy Labeling For Consumers' Health And Privacy Protection, Kathy Keunghee Kim

Maurer Theses and Dissertations

This dissertation examines food allergy labeling’s use in a digital format. Allergy information is typically found on food packaging and containers to help consumers identify individually concerned allergens. Given the critical role that food allergy labels play in preventing unexpected allergic reactions before selecting or consuming food, it is essential to comprehend the labeling descriptions. However, current regulations and laws regarding allergy labeling often confuse consumers due to the existence of mandatory and voluntary Precautionary Allergy Labeling (PAL) categories and the absence of laws and regulations that require allergy information for restaurant meals. Technology companies have introduced digital health and …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Indiana Law Journal

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Lies, Counter-Lies, And Disinformation In The Marketplace Of Ideas, Enrique Armijo

Indiana Law Journal

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by …

The Rise And Fall Of The Consideration Of Race And Ethnicity In The Admissions Process: The Long-Term Negative Consequences Of The Fall, Kevin Brown

Indiana Law Journal

Chief Justice Roberts wrote the majority opinion for the Supreme Court that struck down the affirmative action policies of Harvard College and the University of North Carolina. While Justices Thomas, Gorsuch, and Kavanaugh each wrote separate concurring opinions, they also joined Chief Justice Roberts’s opinion along with Justices Alito and Barrett. Thus, unlike the Court’s prior significant decisions that narrowly upheld affirmative action by one vote, this decision’s six-Justice majority allowed Chief Justice Roberts to write an opinion that more definitively rejected affirmative action than the Court’s tentative and cautious opinions upholding it. Despite what many may think about the …

Popularity Contest: Is An Independent Judiciary Compatible With Popular Constitutionalism?, Lulu S. Faulk

Indiana Law Journal

Can the theory of popular constitutionalism—where the people have authority to shape constitutional law—exist alongside judicial independence? On the surface, these two ideas seem like contestants in a popularity contest: Popular constitutionalism embraces the will of the people in defining constitutional law, while judicial independence insists that judges disregard any and all external pressure in an effort to uphold the tenets of the Constitution even when they are unpopular. The contrast of these competing ideas is all the more evident with recent Supreme Court decisions such as Dobbs v. Jackson Women’s Health Organization, demonstrating a deviation from majority opinion in …

Fall 2024

Ergo

No abstract provided.

Corporate Civil Disobedience, Susanna K. Ripken

Indiana Law Journal

Classic theories of civil disobedience endorse the right of individuals to commit illegal acts to protest unjust laws and policies. Acts of civil disobedience have historically played a central role in exposing injustice and producing vital legal and social change. The literature on civil disobedience is vast; political and legal theorists have long recognized the contributions of individual legal resisters in the ongoing pursuit of a just society. Little attention has been given, however, to intentional lawbreaking by organizational entities that seek to protest unjust, illegitimate, or discriminatory laws. This Article addresses that gap by exploring the prospect of corporate …