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Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

Balancing The Scales: Reinstating Home Privacy Without Violence In Indiana, Tyler Anderson

Indiana Law Journal

No abstract provided.

“Oh, It Is You, Is It?”: Closing The Door On Reasonable Resistance To Unlawful Police Entry In Indiana, Jesse Drum

Indiana Law Journal

No abstract provided.

The Jurisdiction Of The Court Of Federal Claims And Forum Shopping In Money Claims Against The Federal Government, Gregory C. Sisk

Indiana Law Journal

No abstract provided.

Procedural Fairness In Election Contests, Joshua A. Douglas

Indiana Law Journal

No abstract provided.

Competition And Crisis In Mortgage Securitization, Michael Simkovic

Indiana Law Journal

U.S. policy makers often treat market competition as a panacea. However, in the case of mortgage securitization, policy makers’ faith in competition is misplaced. Competitive mortgage securitization has been tried three times in U.S. history— during the 1880s, the 1920s, and the 2000s—and every time it has collapsed. Most recently, competition between mortgage securitizers led to a race to the bottom on mortgage underwriting standards that ended in the late 2000s financial crisis. This Article provides original evidence that when competition was less intense and securitizers had more buyer power, securitizers acted to monitor mortgage originators and to maintain prudent …

Gmonopoly: Does Search Bias Warrant Antitrust Or Regulatory Intervention?, Andrew Langford

Indiana Law Journal

No abstract provided.

Lost Life And Life Projects, Sean Hannon Williams

Indiana Law Journal

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …

Rethinking Hiv-Exposure Crimes, Margo Kaplan

Indiana Law Journal

This Article challenges the current legislative and scholarly approaches to HIV-exposure crimes and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities of people with HIV. Current statutes and the scholarship that supports them focus on HIV-positive status, sexual activity, and knowledge of HIV-positive status as proxies for risk, mental state, and consent to risk. As a result, they are dramatically over- and underinclusive and stigmatize individuals living with HIV. Criminalization should be limited to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a …

How Nations Share, Allison Christians

Indiana Law Journal

Every nation has an interest in sharing the gains they help create by participating in globalization. Citizens should be very interested in discovering how well their governments fare in claiming an adequate share of this international income stream, since a government that cannot or will not exert its taxing jurisdiction internationally is potentially missing out on a very large and very productive source of revenue. Yet it is all but impossible for citizens to observe exactly how, or how well, their governments navigate this aspect of economic globalization. The vast majority of international tax law plays out in practice through …

Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson

Indiana Law Journal

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. Recent scholarship …

Reforming The Good Moral Character Requirement For U.S. Citizenship, Kevin Lapp

Indiana Law Journal

This Article explores the impact of the convergence of criminal law and immigration law on the most valued government benefit in the land: citizenship. Specifically, it examines how criminal history influences the opportunity to naturalize through the good moral character requirement for U.S. citizenship.

Since 1790, naturalization applicants have been required to prove their good moral character. Enacted to ensure that applicants were fit for membership and would not be disruptive or destructive to the community, the character requirement also allowed for the reformation and eventual naturalization of those guilty of past misconduct. This Article shows that recent changes in …

The False Promise Of The Converse-1983 Action, John F. Preis

Indiana Law Journal

The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but …

Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia

Indiana Law Journal

In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster …

Governing Badly: Theory And Practice Of Bad Ideas In College Decision Making, Michael A. Olivas

Indiana Law Journal

Jerome Hall Lecture, Indiana University Maurer School of Law, Bloomington, Indiana, January, 2011.

Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas

Indiana Law Journal

No abstract provided.

Originalism In Practice, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.

Reverberations Of The Victim's "Voice": Victim Impact Statements And The Cultural Project Of Punishment, Erin L. Sheley

Indiana Law Journal

No abstract provided.

Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik

Indiana Law Journal

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …

Enforcing Integrity, Katrice B. Copeland

Indiana Law Journal

No abstract provided.

Police Efficiency And The Fourth Amendment, L. Song Richardson

Indiana Law Journal

Much of our Fourth Amendment jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a “stop and frisk,” courts currently assume that, in any given case, the presence or absence of reasonable suspicion can objectively be determined simply by examining the factual circumstances that the officers confronted. This Article rejects that proposition. Powerful new research in the behavioral sciences indicates that implicit, nonconscious biases affect the perceptions and judgments that are integral to our understanding of core Fourth Amendment principles. Studies reveal, for example, …

The Sky Is Not Falling: The Effect Of A Performance Right On The Radio Market, Gregory F. Donahue

Indiana Law Journal

No abstract provided.

Why Twombly Is Good Law (But Poorly Drafted) And Iqbal Will Be Overturned, Luke Meier

Indiana Law Journal

The conventional wisdom with regard to the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal is that these two cases work together to usher in a new era of pleading. This reading of the cases, however, is wrong. In reality, Twombly was a valid application of the uncontroversial principle that a complaint must describe the real-world events on which the suit is based with some degree of factual specificity. The Iqbal opinion, unfortunately, mangled this concept by applying it to a complaint that described the real-world events on which the suit was based with sufficient …

Renewing The Chase: The First Amendment, Campaign Advertisements, And The Goal Of An Informed Citizenry, John Stewart Fleming

Indiana Law Journal

No abstract provided.

"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn

Indiana Law Journal

No abstract provided.

The Paradox Of Statutory Rape, Russell L. Christopher, Kathryn H. Christopher

Indiana Law Journal

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape’s protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged—intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense—a sexually aggressive seventeen-year-old raping an adult now exposes the adult …

Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott

Indiana Law Journal

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.

But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the …

Beyond Bailouts: Federal Tools For Preventing State Budget Crises, Brian D. Galle, Kirk J. Stark

Indiana Law Journal

More than two years after the official end of the Great Recession, state governments still face significant budget deficits that cannot be addressed without further drastic spending cuts or substantial revenue increases. The structural origins of the ongoing state fiscal crisis are well known. Excessively procyclical revenue structures, combined with spending obligations that increase with economic downturns, have resulted in a budget dynamic for the states that is not sustainable over the long term. The consensus solution to this problem is for states to save money during boom times (via budget stabilization or “rainy day” funds) and to draw on …

The Future Of Nlrb Doctrine On Captive Audience Speeches, Paul M. Secunda

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.