Digital Commons Network^™

The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt

Indiana Law Journal

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

To Lynch A Child: Bullying And Gender Nonconformity In Our Nation's Schools, Michael J. Higdon

Indiana Law Journal

No abstract provided.

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Re-Solidifying Racial Bloc Voting: Empirics And Legal Doctrine In The Melting Pot, D. James Greiner

Indiana Law Journal

Racial bloc voting is the central concept in judicial regulation of redistricting. For the past several decades, the definition and proof of this concept have depended on two premises: that polities can be conceptualized in biracial terms and that nearly perfect information on voting patterns can be inexpensively obtained from simple statistical methods. In fact, however, neither premise has been true for some time, as the nation has become multiracial and allegations have increased that Caucasians vote less monolithically than before, with both assertions imposing severe stress on the simple statistical methods previously used to assess voting patterns. In this …

The Material Support Prosecution And Foreign Policy, Wadie E. Said

Indiana Law Journal

No abstract provided.

Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So

Indiana Law Journal

No abstract provided.

Bullycide In American Schools: Forging A Comprehensive Legislative Solution, Jason A. Wallace

Indiana Law Journal

No abstract provided.

Procedure's Ambiguity, Mark Moller

Indiana Law Journal

By leaving the meaning of a statute—or procedural rule—undecided, ambiguous appellate decisions create space for lower courts to adopt a blend of conflicting approaches, yielding an average result that trims between competing preferences. While compromising in this way may seem to flout basic norms of good judging, this Article shows that opaque “compromise” opinions have plausible normative appeal, given premises about good interpretation often labeled “pluralist.” Judicial pluralists think courts should decide cases in ways interest groups would, hypothetically, accept. To demonstrate the pluralist appeal of opaque decisions, I develop, in turn, two related claims: First, interest groups, under the …

Naming, Identity, And Trademark Law, Laura A. Heymann

Indiana Law Journal

As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.

The Costs Of Heightened Pleading, Alexander A. Reinert

Indiana Law Journal

In Conley v. Gibson, the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. Iqbal and Twombly, by many accounts, two-stepped the Court from …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Indiana Law Journal

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo- American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed …

Signing Unconstitutional Laws, William Baude

Indiana Law Journal

It has become fairly common for Presidents to sign laws that they think are unconstitutional, at least in part. Some scholars argue that this is unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today’s government.

Both sides are wrong. In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. Yet the President must exercise this power responsibly. He must have other constitutional duties that justify signing the remainder of the bill into law, and he must be prepared to use his …

Retroactivity And The Fraud Enforcement And Recovery Act Of 2009, Matthew Titolo

Indiana Law Journal

This Article resolves confusion over the scope of the Fraud Enforcement and Recovery Act (FERA), which amends the False Claims Act (FCA), to clarify that it covers fraud against the taxpayers even where committed by and against other government contractors and subcontractors. I focus on a controversial retroactivity clause applying FERA’s expanded liability language to pre-enactment conduct. Ambiguity has led to inconsistent outcomes: some courts have ruled that FERA’s new language applies to pre-enactment conduct while others have reached the opposite result. Much of practical consequence rides on how we resolve this ambiguity—the Department of Justice is currently investigating over …

Merit Pay And Pain: Linking Congressional Pay To Performance, Jonathan D. Mcpike

Indiana Law Journal

No abstract provided.

When Should Asset Appreciation Be Taxed?: The Case For A Disposition Standard Of Realization, Jeffrey L. Kwall

Indiana Law Journal

The realization requirement is one of the most basic elements of the United States income tax. Due to this requirement, any increase in the value of a person’s property is not taxed when it occurs. Rather, the tax on asset appreciation is deferred until the occurrence of a realization event; that is, until the property is transferred in exchange for money or other consideration. By contrast, all other forms of income (e.g., salary, rents) are taxed immediately.

The realization requirement is one of the most basic elements of the United States income tax. Due to this requirement, any increase in …

Community As A Redistricting Principle: Consulting Media Markets In Drawing District Lines, Jason C. Miller

Indiana Law Journal

With the 2011 redistricting process poised to commence across the country, debates are raging as to who should draw district lines, how to keep those individuals from drawing them for partisan advantage, and the best way to draw minority districts. This paper addresses the largely overlooked area of media markets. Districts drawn to conform with media markets experience higher voter turnout. Moreover, linking a city and its economically-connected suburbs together is simply common sense. Discussing the impact of district conformity, or lack thereof, with media market boundaries on campaign strategy, news reporting, voter participation, grassroots organizing, and candidate recruitment, this …

Section 1983 Wrongful Death And Survival Actions In The Seventh Circuit: An Indiana Litigant's Guide To Claims After Russ V. Watts, Michelle R. Gough

Indiana Law Journal

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 …

Fundamental Versus Deferential: Appellate Review Of Terminations Of Parental Rights, Karen A. Wyle

Indiana Law Journal

Any attorney who handles or follows cases involving termination of parental rights will have often read, “This court has long had a highly deferential standard of review in cases concerning the termination of parental rights.” This article addresses several questions that arise from that familiar language:

• Does the Indiana Court of Appeals in fact have a tradition or practice of highly deferential review of termination orders?
• Is this deference greater than the court accords to trial court decisions in other family law matters or in non-family civil appeals?
• If so, on what legal analysis is this special deference based?
• Is …

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Indiana Law Journal

No abstract provided.

On Disguises, Tokens, And Affirmative Action Policies, Mark Strasser

Indiana Law Journal

No abstract provided.

Perspective And Point Of View On Affirmative Action, Kevin D. Brown

Indiana Law Journal

No abstract provided.

Semiotics 101: Taking The Printed Matter Doctrine Seriously, Kevin Emerson Collins

Indiana Law Journal

The printed matter doctrine is a branch of the section 101 doctrine of patent eligibility that, among other things, prevents the patenting of technical texts and diagrams. The contemporary formulation of the doctrine is highly problematic. It borders on incoherency in many of its applications, and it lacks any recognized grounding in the Patent Act. Yet, despite its shortcomings, courts have not abandoned the printed matter doctrine, likely because the core applications of the doctrine place limits on the reach of the patent regime that are widely viewed as both intuitively "'correct" and normatively desirable. Instead of abandoning the doctrine, …

Frames Of Injustice: The Bias We Overlook, Adam Benforado

Indiana Law Journal

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, this Article engages the case of Scott v. Harris, 550 US. 372 (2007), the …

Entitled To Be Heard: Improving Evidence-Based Policy Making Through Audience And Public Reason, Will Rhee

Indiana Law Journal

No abstract provided.

Keep Off The Grass!: An Alternative Approach To The Gun Control Debate, Lance Lindeen

Indiana Law Journal

No abstract provided.

The Devil Is In The Lack Of Details, Ann M. Killenbeck

Indiana Law Journal

No abstract provided.

Piercing The Brilliant Veil: Two Stories Of American Racism, Deborah Jones Merritt

Indiana Law Journal

No abstract provided.

Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Michael Jaros

Indiana Law Journal

The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent-child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child.I argue that procedures for issuing protective orders that were …

"Why Rebottle The Genie?": Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Indiana Law Journal

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …