Digital Commons Network^™

Can Judges Make Reliable Numeric Judgments? Distorted Damages And Skewed Sentences, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Indiana Law Journal

In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges’ civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or “anchors”) affected judges’ decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory damages when informed of a cap on damage awards; imposed different sentences depending upon the sequence in which criminal cases were presented to them; and were influenced …

Banning The Bing: Why Extreme Solitary Confinement Is Cruel And Far Too Usual Punishment, Elizabeth Bennion

Indiana Law Journal

The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with preexisting mental-health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high …

From Weight Checking To Wage Checking: Arming Workers To Combat Wage Theft, Matt Finkin

Indiana Law Journal

Wage theft refers to employer practices that result in employees taking home less than they are legally entitled to under federal and state law: paying below the legal minimum; not paying for time worked by having workers work “off the clock” before checking in, after clocking out, or by requiring work during unpaid break time; not paying for overtime work at the statutory overtime rate; for tipped employees, expropriating tips that should be the employee’s; or just not paying at all. In tandem with the massive shift in the economy from well-paid manufacturing jobs to low-wage service jobs, wage theft …

The Federal Question In Patent-License Cases, Amelia Smith Rinehart

Indiana Law Journal

The patent law has long recognized a patent owner’s ability to license some interest in the patent by granting to others permission to tread upon the patent owner’s property rights without legal consequence. When one of the parties to a patent license decides to seek remedies from the other party for a license harm, the resulting litigation may be a patent-infringement case with a contract issue or a contract case with a patent issue. In most cases, the patent owner brings her suit against the licensee in federal court, alleging that the licensee breached the license contract and, as a …

The Patient Protection And Affordable Care Act: The Latest Obstacle In The Path To Receiving Complementary And Alternative Health Care?, Chelsea Stanley

Indiana Law Journal

Part I of this Note outlines a variety of medical techniques that are considered to be complementary and alternative practices, and it presents evidence of CAM’s growing influence in the United States. Part I also provides a concise summary of some of the most important features of the ACA. Part II analyzes the potential impact of the ACA on CAM. Part II focuses first on those provisions of the ACA that are believed to be supportive of CAM; however, Part II then proposes potential counterarguments ignored or overlooked by those who believe that the ACA will favorably impact CAM. Part …

Duty To Defend And The Rule Of Law, Gregory F. Zoeller

Indiana Law Journal

This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)

Scrutinizing Federal Electoral Qualifications, Derek T. Muller

Indiana Law Journal

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering …

The New State Sovereignty Movement, Austin L. Raynor

Indiana Law Journal

In the past decade, states across the country have enacted a flood of legislation to resist perceived federal encroachments on their sovereignty. These opposition statutes assume a variety of forms: some, for instance, merely prohibit state officers from assisting in the enforcement of federal law, while others purport to nullify particular federal regulations. In the fields of controlled substances, immigration, and healthcare, among others, state acts of protest have stimulated the national debate and influenced legal obligations in important ways.

This Article provides the first comprehensive overview of this nascent state sovereignty movement. It categorizes opposition enactments according to the …

Federalism And Family Status, Courtney G. Joslin

Indiana Law Journal

The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters—specifically, family status determinations—are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent …

Big Fish, Small Ponds: International Crimes In National Courts, Elizabeth B. Ludwin King

Indiana Law Journal

The principle of complementarity in the Rome Statute of the International Criminal Court anticipates that perpetrators of genocide, war crimes, and crimes against humanity will be tried in domestic courts unless there is no state with jurisdiction willing or able to do so. This Article examines the situation where a state might be willing to engage in meaningful local justice but temporarily lacks the capability to do so due to the effects of the conflict. It argues that where the state submits a detailed proposal to the International Criminal Court (ICC) outlining the steps necessary to gain or regain the …

Unlocked And Loaded: Government Censorship Of 3d-Printed Firearms And A Proposal For More Reasonable Regulation Of 3d-Printed Goods, Danton L. Bryans

Indiana Law Journal

This Comment analyzes the regulations in place on 3D-printed firearms and proposes a new standard for regulating 3D-printed goods. Part I provides a brief primer on 3D printing and 3D-printed firearms. Part II turns to the events surrounding Defense Distributed’s creation of the world’s first 3D-printed firearm and the subsequent government censorship of the corresponding CAD files. Part III discusses the regulations affecting 3D-printed firearms and why these regulations are ill-suited for CAD files and 3D-printed goods. Part IV analyzes the implications of treating CAD files and 3D-printed goods as equivalents of traditional goods. Finally, Part V offers a proposal …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Indiana Law Journal

No abstract provided.

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt

Indiana Law Journal

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Surrogate Testimony After Williams: A New Answer To The Question Of Who May Testify Regarding The Contents Of A Laboratory Report, Jennifer Alberts

Indiana Law Journal

No abstract provided.

Are Indiana’S Newly Expunged Convictions Still Available For Impeachment?, Graham Polando

Indiana Law Journal

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only …

Judicial Selection In Congress’ Lame Duck Session, Carl W. Tobias

Indiana Law Journal

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

The Rising None: Marsh, Galloway, And The End Of Legislative Prayer, Nicholas C. Roberts

Indiana Law Journal

No abstract provided.

Legislating Labors Of Love: Revisiting Commercial Surrogacy In New York, Deborah Machalow

Indiana Law Journal

After over twenty years of status quo, the New York Legislature has an opportunity to liberalize its surrogacy laws whether during this legislative session or the next. By adopting the proposals with the suggested changes, the Legislature would simultaneously bring the law into conformity with the desires of many New Yorkers and recognize important technological developments. The proposals are marked improvements on the present prohibitory regime; however, they are not perfect. The legislature should consider further protections for the parties to surrogacy arrangements and amend the proposals accordingly. The legislature’s renewed interest in the topic is refreshing; this interest should …

Furtive Encryption: Power, Trusts, And The Constitutional Cost Of Collective Surveillance, Jeffrey L. Vagle

Indiana Law Journal

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic …

Disarming The Dangerous: Preventing Extraordinary And Ordinary Violence, M. Fan

Indiana Law Journal

Mass shootings at Navy Yard, Newtown, Aurora, and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary-school children and six adults. Legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity …

Reforming The Regulation Of Community, Tanya D. Marsh

Indiana Law Journal

The regulatory framework for financial institutions in the United States imposes significant costs on community banks without providing benefits to consumers or the economy that justify those costs. The Dodd-Frank Wall Street Reform and Consumer Protection Act builds on decades of “one-size-fits-all” regulation of financial institutions, an ill-conceived regulatory strategy that puts community banks at a competitive disadvantage as compared with their larger, more complex competitors. The imposition of regulatory burdens on community banks without attendant benefits ultimately harms both consumers and the economy by (1) forcing community banks to consolidate or go out of business, furthering the concentration of …

Dollar Unilateralism: The New Frontline Of National Security, Suzanne Katzenstein

Indiana Law Journal

This Article makes three points. First, it draws attention to a profound shift toward “dollar unilateralism” by the U.S. government as it advances core national security goals. Relying on the special status of the U.S. dollar, the government has enlisted foreign banks to isolate targeted entities and track illicit financial flows. Second, drawing on examples such as Iran’s nuclear program, the Article identifies three formal and informal legal tactics the government has used to implement dollar unilateralism: financial sticks, high-profile blacklists, and direct diplomacy. Finally, the Article discusses the efficacy of dollar unilateralism and its implications for U.S. accountability. Dollar …

Domestic Violence, Gun Possession, And The Importance Of Context, Wesley M. Oliver

Indiana Law Journal

Context is everything.

A federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. 1 This term, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts.2 This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake. And domestic violence, Justice Sotomayor stressed in her opinion, has reached epidemic levels, prompting Congress to get guns out of the …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Indiana Law Journal

The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. Corporate giants line the pockets of senatorial candidates—and purchase influence—while average citizens walk into a polling station and cast a largely symbolic vote. Stated simply, money creates a soft inequality by dominating the political process. Like the “soft bigotry of low expectations,”69 the soft inequality embedded in our political system has created a liberty gap between the prosperous and the poor. McCutcheon was an opportunity to bridge this gap. Instead, the Court enshrined the status quo by holding that Congress could only regulate …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

The Limits Of Child Pornography, Carissa Byrne Hessick

Indiana Law Journal

Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, the Supreme Court has declared that those protections do not apply to child pornography. But the Court has failed to clearly define child pornography as a category of speech. Providing a precise definition of the child pornography exception to the First Amendment has become increasingly important because recent years have seen a dramatic increase in the penalties associated with the creation, distribution, and possession of child pornography.

This Article proposes a clear definition of the child pornography exception. It argues that an image ought to fall …

Admit That The Waters Around You Have Grown: Change And Legal Education, Mari J. Matsuda

Indiana Law Journal

Presented as the Addison C. Harris Lecture at Indiana University Maurer School of Law, Bloomington, Indiana, September 25, 2013.

The Unconvincing Case Against Private Prisons, Malcolm M. Feeley

Indiana Law Journal

In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled …

Charitable Giving And Utilitarianism: Problems And Priorities, Miranda Perry Fleischer

Indiana Law Journal

Charitable giving is redistributive at heart. It is thus surprising that scholarship on the charitable tax subsidies focuses on the efficient and pluralistic production of public goods while largely ignoring distributive justice concerns. Existing scholarship and current law leave crucial questions unanswered: How should we prioritize among charities? Should subsidized groups be required to help the poor? Are criticisms that charities do too little to help the poor valid? This Article is part of a series that examines how each common theory of distributive justice would answer these questions.

More specifically, this Article explores utilitarianism and the charitable tax subsidies …