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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.

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Indiana Law Journal

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial …

Typhoid Mario: Video Game Piracy As Viral Vector And National Security Threat, Andrew V. Moshirnia

Indiana Law Journal

Current academic and policy discussions regarding video game piracy focus on the economic losses inherent to copyright infringement. Unfortunately, this approach neglects the most significant implication of video game piracy: malware distribution. Copyright-motivated efforts to shut down file-sharing sites do little to reduce piracy and actually increase viral malware infection. Pirated video games are an ideal delivery device for malware, as users routinely launch unverified programs and forego virus detection. The illicit nature of the transaction forces users to rely almost entirely on the reputation of websites, uploaders, and other users to determine if a file is safe to download. …

Are Charter Schools The Second Coming Of Enron?: An Examination Of The Gatekeepers That Protect Against Dangerous Related-Party Transactions In The Charter School Sectors, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole

Indiana Law Journal

INTRODUCTION

OVERVIEW OF ENRON

A. ENRON AND DEREGULATION

B. THE LJM SPES

C. ENRON’S COLLAPSE

II: ENRON’S GATEKEEPER PROBLEMS

A. ARTHUR ANDERSEN

B. INDEPENDENT ANALYSTS

C. CREDIT RATING AGENCIES

D. ENRON’S BOARD OF DIRECTORS

E. SECURITIES AND EXCHANGE COMMISSION (SEC)

III: CHARTER SCHOOLS AND RELATED-PARTY TRANSACTIONS

A. CHARTER SCHOOL DEREGULATION AND PRIVATE INVESTORS

B. EXAMPLES OF ENRON-LIKE RELATED-PARTY TRANSACTIONS

1. IMAGINE SCHOOLS

2. IVY ACADEMIA CHARTER SCHOOL

3. AMERICAN INDIAN MODEL CHARTER SCHOOLS

4. GRAND TRAVERSE ACADEMY

5. PENNSYLVANIA CYBER CHARTER SCHOOL

C. THE FEDERAL GOVERNMENT, RELATED-PARTY TRANSACTIONS, AND THE NEED FOR STRONG GATEKEEPING

IV: CHARTER SCHOOL GATEKEEPERS

A. AUDITORS …

The Promises And Pitfalls Of Harmonization: What Insurance Guarantee Schemes Tell Us About When Harmonization Works, Jordan Burton

Indiana Law Journal

In Part I, this Note considers the mechanisms of harmonization and the regulatory and fairness policy concerns that harmonization is designed to address. Part II explores some of the problems harmonization can create, with an eye toward how those problems manifest in the IGS context. Finally, Part III discusses how IGS address an urgent and inevitable problem that affects actors in the insurance market at every level. By analyzing comments on the Commission’s White Paper, Part III proposes that these three factors—convergence of stakeholder interest, inevitability, and urgency— are key to understanding when member states, EU citizens, and industry actors …

Licenses And The Property/Contract Interface, Christina M. Mulligan

Indiana Law Journal

INTRODUCTION

I. THE ROLE OF FORMAL CATEGORIES

II. THE COMPOUND-PAUCITAL LICENSE

A. IDIOSYNCRASY AND INFORMATION ASYMMETRIES

B. REGULATING LICENSES

1. THE NOTICE STRATEGY

2. THE PROTECTION STRATEGY

III. RESTRAINTS ON ALIENATION AND USE

A. HARMS CAUSED BY RESTRAINTS ON ALIENATION AND USE

1. INCREASED INFORMATION COSTS

2.WASTE

B. LIMITING HARM WITH PROTECTIVE STANDARDIZATION

1. THE LICENSE V. SALE DISTINCTION IN PRACTICE

2.WHAT IS A DIGITAL SALE?

3. FAVORING SALES WITHOUT LOSING FLEXIBILITY

C. DISTINGUISHING BETWEEN IN REM AND IN PERSONAM LICENSE TERMS

IV. LICENSE REVOCATION

A. TIMING REVOCATION

B. BENEFITS AND CONCERNS

1.MANAGING SHARED RESOURCES VS. UPSET RELIANCE INTERESTS

2. …

Congressional Authorization Of The Campaign Against Isil, Tyler Salway

Indiana Law Journal

I. THE BIRTH OF ISIL

II. CONGRESSIONAL AUTHORIZATION

A. EXPRESS AUTHORIZATION

1. METHODS OF INCLUSION

2. ISIL’S INCLUSION UNDER THE 9/11 AUMF

B. IMPLICIT AUTHORIZATION

III. ISIL AND THE TRUMP PRESIDENCY

CONCLUSION

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Indiana Law Journal

This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. cities may employ, so as to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago: in order to gauge the uniformity, as well as the relative cost effectiveness, of the parking ticket appeals process. The Article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the …

Evading Constitutional Challenge: Dapa's Implications For Future Exercises Of Executive Enforcement Discretion, Lucy Chauvin

Indiana Law Journal

I. UNITED STATES V. TEXAS: DEFINING THE BOUNDARIES OF ENFORCEMENT DISCRETION

A. DAPA AND THE CONSTITUTIONAL CHALLENGE

B. SCHOLARLY DEBATE: APPLICATION OF YOUNGSTOWN FRAMEWORK TO DAPA

II. TAKE CARE: CONFLICTING INTERPRETATIONS OF THE DUTY TO FAITHFULLY EXECUTE THE LAW

III. ENFORCEMENT DISCRETION: INTERACTION BETWEEN CONGRESS AND THE EXECUTIVE

A. HECKLER V. CHANEY: EARLY RECOGNITION OF EXECUTIVE ENFORCEMENT DISCRETION

B. ENFORCEMENT DISCRETION’S SPECIFIC APPLICATION TO IMMIGRATION LAW

C. THE MEANING OF “DEFERRED ACTION”

IV. THE HISTORICALLY LIMITED ROLE OF THE JUDICIARY

A. PRESUMPTIVE UNREVIEWABILITY

B. ADDITIONAL PROCEDURAL HURDLES

V. MOVING FORWARD: LESSONS TO BE LEARNED FROM THE OBAMA ADMINISTRATION

A. FRAMING …

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 in Washington State …

"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 …

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 from …

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, …

Executive Branch Fact Deference As A Separation Of Powers Principle, Emily A. Kile

Indiana Law Journal

This Note concludes that, although Zivotofsky I provides a basis for judicial review of the legality of the Obama Administration’s “hostilities” determination (and, by extension, other questions of statutory interpretation related to foreign affairs), that review could be blunted by judicial deference to the executive branch’s factual determinations relevant to whether the Libyan airstrikes constituted “hostilities” within the War Powers Resolution. By addressing the political question doctrine’s history and the response to Zivotofsky I, this Note will explore whether the political question doctrine—particularly in cases of statutory interpretation—has lost some of its force as a justiciability doctrine. This Note will …

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 …

Pharmaceutical Federalism, Patricia J. Zettler

Indiana Law Journal

There is growing interest in states regulating pharmaceuticals in ways that challenge the U.S. Food and Drug Administration’s (FDA) federal oversight. For example, in 2013, Maine enacted a law to permit the importation of unapproved drugs, reflecting concerns that federal requirements are too restrictive, while in 2014 Massachusetts banned an FDA-approved painkiller, reflecting concerns that federal requirements are too lax. This Article provides an account of this recent state interest in regulating drugs and considers its consequences. It argues that these state regulatory efforts, and the nascent litigation about them, demonstrate that the preemptive reach of the FDA’s authority extends …

Measuring The Creative Plea Bargin, Thea Johnson

Indiana Law Journal

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical re-search, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David J. Herzig

Indiana Law Journal

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex in-dividuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the re-cent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …

Don't Let The Facts Get In The Way Of The Truth: Revisiting How Buckhannon And Alyeska Pipeline Messed Up The American Rule, Landyn Wm. Rookard

Indiana Law Journal

No abstract provided.

Beyond "Best Practices": Employment-Discrimination Law In The Neoliberal Era, Deborah Dinner

Indiana Law Journal

Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of anti-discrimination ideals in the late twentieth century was intertwined with the de-regulation of labor and with cutbacks in the welfare state. The Article argues that even “best practices” to prevent employment discrimination are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and …

National Protection Of Student-Athlete Mental Health: The Case For Federal Regulation Over The National Collegiate Athletic Association, Jayce Born

Indiana Law Journal

No abstract provided.

Criminalizing Pregnancy, Cortney Lollar

Indiana Law Journal

The state of Tennessee arrested a woman two days after she gave birth and charged her with assault of her newborn child based on her use of narcotics during her preg-nancy. Tennessee’s 2014 assault statute was the first to explicitly criminalize the use of drugs by a pregnant woman. But this law, along with others like it being considered by legislatures across the country, is only the most recent manifestation of a long history of using criminal law to punish poor mothers and mothers of color for their behavior while pregnant. The purported motivation for such laws is the harm …

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Indiana Law Journal

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a …

Law And Identifiability, Daphna Lewinsohn-Zamir, Ilana Ritov, Tehila Kogut

Indiana Law Journal

Psychological studies have shown that people react either more generously or more punitively toward identified individuals than toward unidentified ones. This phenomenon, named the identifiability effect, has received little attention in the legal literature, despite its importance for the law. As a prime example, while legislators typically craft rules that would apply to unidentified people, judges ordinarily deal with identified individuals. The identifiability effect suggests that the outcomes of these two forms of lawmaking may differ, even when they pertain to similar facts and situations.

This Article is a preliminary investigation into the relevance of the identifiability effect for law …

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Indiana Law Journal

This Article addresses the question of law, religion, and the market directly. It does so by developing three theories of how one might conceptualize the proper relationship between commerce and religion. The first two theories I offer are not meant to be summaries of any position explicitly articulated by any particular thinker. There is a paucity of explicit reflection on the question of markets and reli-gion and virtually no effort to generate broad legal theories of that relationship. Rather, these theories are an attempt to explicitly articulate clusters of intuitions that seem to travel together. My hope is to show …

“Illegal” Migration Is Speech, Daniel I. Morales

Indiana Law Journal

Noncitizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that noncitizens living outside the United States have a say in the formation of immigration law since they must obey it. This Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of “illegal” migration as First Amendment speech.

If noncitizens’ …

One Person, One Vote: Gerrymandering And The Independent Commission, A Global Perspective, James Ruley

Indiana Law Journal

In 1863, on the hallowed fields at Gettysburg, Abraham Lincoln encapsulated a core principle of democracy by describing our system as a “government of the people, by the people, [and] for the people.” This definition accurately depicts the ideal of democracy—that supreme power is vested in the citizenry, not in the government itself. Since the American model is based on representative democracy instead of direct democracy, extreme scrutiny must be placed upon the system of choosing representatives if government is to accurately represent the will of the people.

One of the greatest abuses of a citizen’s voting rights is gerrymandering. …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Indiana Law Journal

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is one in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and nonpublic information through the lens of social science —namely, principles of trust.

Patent law’s public use bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows that current …

Post-Racialism And The End Of Strict Scrutiny, David Schraub

Indiana Law Journal

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or eye …