Digital Commons Network^™

Ninth Amendment Neurorights, Joseph A. Tomain

Indiana Law Journal

Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature …

The Mirage Of Artificial Intelligence Terms Of Use Restrictions, Peter Henderson, Mark A. Lemley

Indiana Law Journal

Artificial intelligence (AI) model creators commonly attach restrictive terms of use to both their models and their outputs. These terms typically prohibit activities ranging from creating competing AI models to spreading disinformation. Often taken at face value, these terms are positioned by companies as key enforceable tools for preventing misuse, particularly in policy dialogs. The California AI Transparency Act even codifies this approach, mandating certain responsible use terms to accompany models.

But are these terms truly meaningful, or merely a mirage? There are myriad examples where these broad terms are regularly and repeatedly violated. Yet except for some account suspensions …

The Case For Contingent Regulatory Sunsets, Jeffrey D. Manns

Indiana Law Journal

Cost-benefit analysis is at the core of regulatory impact analysis for every proposed rule or regulation and is designed to be a structural constraint on the administrative state. The challenge is ex ante cost-benefit analysis necessarily rests on many assumptions, and much more information is available about a regulation’s impact after it has been implemented. But ex post cost-benefit analysis is ad hoc and infrequent in spite of efforts by numerous presidential administrations to promote regulatory lookbacks.

I propose institutionalizing “contingent regulatory sunsets” to ensure that rules and regulations have the positive impact in practice that administrative agencies intended. I …

Genetic Privacy, Ifeoma Ajunwa, Forrest Briscoe

Indiana Law Journal

The last decade has brought many technological advances to genetic testing. Increasingly, genetic testing, which was previously reserved for clinical or medical settings, has made its way to other spaces. Most significantly, we are now seeing the re-introduction of genetic testing to the workplace. Although the Genetic Information Nondiscrimination Act (GINA), which became law in 2009, would seemingly prohibit genetic testing in the workplace, genetic testing, as part of workplace wellness programs, is lawful under the aegis of the Affordable Care Act (ACA). This poses a threat to genetic privacy in the workplace. While some, like the actor Angelina Jolie, …

Cultural Cognition And The Thoughtful Judge, Jack Whiteley

Indiana Law Journal

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Public-Private Partnerships After Murthy V. Missouri, Danielle Keats Citron, Jeff Stautberg

Indiana Law Journal

This Essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the constitutionality of information sharing between federal agencies and social media companies. The litigation has been a good and a bad teacher. On one hand, the lower court decisions made legible the risks to free expression, accountability, transparency, and intimate privacy posed by government-industry collaborations. On the other hand, the litigation chilled information sharing between federal agencies, state election officials, and social media companies at the moment that such collaboration could and should help protect against foreign malign influence …

Common Law Executive Privilege(S), Jonathan Shaub

Indiana Law Journal

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an …

The Uptake Puzzle In Expungement Of Criminal Records, Jessica Steinberg, Elenore Wade

Indiana Law Journal

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a …

The Anti-Discriminatory Right To Travel, Noah Smith-Drelich

Indiana Law Journal

Travel rights and travel restrictions shape nearly every part of society, moderating where and how we go about our daily lives. Yet a central aspect of travel has gone largely unnoticed in the legal literature. Oppressive governments have routinely restricted free movement as a principal means of effectuating discrimination. And travel rights, as a result, have always had a strong anti-discriminatory valence. From the Magna Carta to Blackstone’s Commentaries to the Constitution itself, rights to travel have consistently emerged from struggles against discrimination.

This Article makes several independent but related contributions. First, the Constitution’s protections of travel have a strong …

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 …

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 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 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 …

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 …

The Future Of Work In The Era Of Ai, Orly Lobel

Indiana Law Journal

Artificial intelligence (AI) is revolutionizing both work itself and the processes of employment—hiring, recruitment, evaluation, compensation, performance analysis, retention, and job mobility. This Essay, based upon the 2024 Indiana Law Journal annual William R. Stewart Lecture, examines the effects of AI on work and argues for a holistic approach that harnesses the benefits of automation while addressing the inevitable systemic changes that AI is rapidly bringing to the labor market. The Essay examines two industries in which AI is already changing labor market demands: trucking and the performing arts. The Essay argues that while the automation can often increase efficiency …

Love, Liberalism, Substituted Judgment, James Toomey

Indiana Law Journal

Under the doctrine of substituted judgment, decision-makers for adults without legal capacity are to make the decision the person in their care would have made. In cases involving irreversible cognitive decline—where substituted judgment is most frequently applied—scholars have struggled to explain it, resorting to mysterious metaphysical claims. These philosophical acrobatics seem necessary because the person for whom the decision is made cannot appreciate it, and, philosophically, they may not be the same person they had been.

This Article offers a novel account of substituted judgment that circumvents these challenges. I argue first that the doctrine is straightforwardly justified in cases …

Helping Students To Organize Their Thoughts About The Erie Doctrine, William Casto

Indiana Law Journal

This little Essay presents a framework for teaching the Erie Doctrine. It is not a grand analysis of the federal courts’ puzzle. It does not even offer a wondrously insightful vision of one of the puzzle’s colorful pieces. Rather, the purpose is quite modest. The essay simply aims to help students to organize their thoughts about whether a particular legal issue is governed by state or federal law. Given the Essay’s limited and wholly heuristic purpose, the usual endless parade of all possible cases and the careful rehearsal of exquisite and finely-tuned factors and considerations are eschewed.

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 …