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Articles 1 - 30 of 55
Full-Text Articles in Law
Population-Based Sentencing, Jessica M. Eaglin
Population-Based Sentencing, Jessica M. Eaglin
Articles by Maurer Faculty
The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses. How have courts responded to this trend? Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques. First, the courts have expanded individual procedural rights into sentencing where they once did not apply. Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment …
Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll
Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll
Indiana Law Journal
A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …
Public Defenders' Offices In Brazil: Access To Justice, Courts, And Public Defenders, Alexandre Dos Santos Cunha
Public Defenders' Offices In Brazil: Access To Justice, Courts, And Public Defenders, Alexandre Dos Santos Cunha
Indiana Journal of Global Legal Studies
This essay discusses the impact of public defenders' offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts.
Part I presents the Brazilian public defenders' offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is …
Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley
Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley
Indiana Law Journal
This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.
Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …
Court Personnel Attitudes Towards Medication-Assisted Treatment: A Statewide Survey, Barbara Andraka-Christou, Meghan Gabriel, Jody L. Madeira, Rod D. Silverman
Court Personnel Attitudes Towards Medication-Assisted Treatment: A Statewide Survey, Barbara Andraka-Christou, Meghan Gabriel, Jody L. Madeira, Rod D. Silverman
Articles by Maurer Faculty
Background: Despite its efficacy, medication-assisted treatment (MAT) is rarely available in the criminal justice system in the United States, including in problem-solving courts or diversionary settings. Previous studies have demonstrated criminal justice administrators' hostility towards MAT, especially in prisons and jails. Yet, few studies have examined attitudes among court personnel or compared beliefs among different types of personnel. Also, few studies have explored the relationship between MAT education/training and attitudes. Finally, few studies have directly compared attitudes towards methadone, oral buprenorphine, and extended-release naltrexone in the criminal justice system.
Methods: We modified a survey by Matusow et al. (2013) to …
Human Rights In State Courts, India Thusi, Robert L. Carter
Human Rights In State Courts, India Thusi, Robert L. Carter
Books & Book Chapters by Maurer Faculty
Human rights are among society’s most powerful ideals. The notion that all people have rights, simply by virtue of their humanity, has sparked new nations, inspired countless freedom movements, and transformed the relationship between people and their governments in places big and small around the globe. The founders of our country declared that we are all created equal and endowed with certain inalienable rights, and that opinions of other nations are entitled to “decent respect.” In the aftermath of the Holocaust and World War II, the United States helped craft the Universal Declaration of Human Rights (UDHR) and the modern …
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Indiana Law Journal
The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …
Scrutinizing Federal Electoral Qualifications, Derek T. Muller
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 …
Beyond The Verdict: Why The Courts Must Protect Jurors From The Public Before, During, And After High-Profile Cases, Scott Ritter
Beyond The Verdict: Why The Courts Must Protect Jurors From The Public Before, During, And After High-Profile Cases, Scott Ritter
Indiana Law Journal
In a time when more and more criminal trials are saturated in news coverage, media outlets race to get as much information as possible to the public. That access to the criminal justice system is a right protected by the First Amendment. But where does the access stop? This Note explores those limits, and the intersection between the First and Fourth Amendments.
The Feasibility Of Litigation Markets, Jonathan T. Molot
The Feasibility Of Litigation Markets, Jonathan T. Molot
Indiana Law Journal
No abstract provided.
Lost Without Translation?: Cross-Referencing And A New Global Community Of Courts, Antje Wiener, Philip Liste
Lost Without Translation?: Cross-Referencing And A New Global Community Of Courts, Antje Wiener, Philip Liste
Indiana Journal of Global Legal Studies
Anne-Marie Slaughter has described the "new world order" as characterized by some "conceptual shifts," including an increasing cooperation of domestic courts across nation-state boundaries. The cross-jurisdictional referencing of legal norms and decisions, as Slaughter holds, would lead into a "global community of courts." This article takes issue with that observation. We argue that for such a community to emerge, cross-referencing would need to be followed by an effective transmission of meaning from one (legal) context to another. Following recent insights in the field of International Relations norm research, however, we can expect such meanings to be contested-in particular, when different …
Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss
Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss
Articles by Maurer Faculty
This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-published study (92 Texas L. Rev. 1317 (2014)) identifying and analyzing Congressional overrides of Supreme Court statutory interpretation decisions since 1967. Christiansen and Eskridge provide a new taxonomy for overrides that distinguishes between "restorative" overrides, which denounce a judicial interpretation as misrepresenting prior Congressional intent, and overrides that simply update or clarify policy. Although political science and legal scholarship has focused on the interbranch struggle implicit in restorative overrides, Christiansen and Eskridge classify only about 20% of the overrides in their total dataset …
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky
Indiana Law Journal
American Association of Law Schools Torts & Compensation Systems Panel
Procedural Fairness In Election Contests, Joshua A. Douglas
Procedural Fairness In Election Contests, Joshua A. Douglas
Indiana Law Journal
No abstract provided.
Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins
Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins
Indiana Law Journal
Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. …
Police Efficiency And The Fourth Amendment, L. Song Richardson
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, …
Using The Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, Norman D. Bishara, David Orozco Professor
Using The Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, Norman D. Bishara, David Orozco Professor
Indiana Law Journal
This Article addresses the legitimacy of competing interests involved in the enforcement of covenants not to compete (“noncompetes”). To date, the courts and legislatures have not relied on a principled theoretical framework to identify and assess the competing interests between firms and individuals in this setting. This Article fills the research void by providing a theoretical framework that identifies the legitimacy of these competing claims. The framework integrates managerial research involving the resource-based theory of the firm and the knowledge-based perspective of competitive advantage with the legal analysis and enforcement of noncompete terms. A descriptive framework of the parties’ competing …
What Do Courts Have To Do With It?: The Judiciary's Role In Making Federal Tax Law, Leandra Lederman
What Do Courts Have To Do With It?: The Judiciary's Role In Making Federal Tax Law, Leandra Lederman
Articles by Maurer Faculty
The Internal Revenue Code is an important source of federal tax law, but it is not the only source. The U.S. Department of the Treasury and Internal Revenue Service issue important guidance, and federal courts interpret all of these authorities. This essay provides an overview of federal tax litigation, at both the trial and appellate levels, and discusses the interplay among Congress, the Treasury, and the judiciary in developing federal tax law.
An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor
An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor
Indiana Journal of Global Legal Studies
This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.
These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …
The War Powers Outside The Courts, William Michael Treanor
The War Powers Outside The Courts, William Michael Treanor
Indiana Law Journal
Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.
Back To Government?: The Pluralistic Deficit In The Decisionmaking Process And Before The Courts, Fulvio Cortese, Marco Dani, Francesco Palermo
Back To Government?: The Pluralistic Deficit In The Decisionmaking Process And Before The Courts, Fulvio Cortese, Marco Dani, Francesco Palermo
Indiana Journal of Global Legal Studies
Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.
Access To U.S. Federal Courts As A Forum For Human Rights Disputes: Pluralism And The Alien Tort Claims Act, Christiana Ochoa
Access To U.S. Federal Courts As A Forum For Human Rights Disputes: Pluralism And The Alien Tort Claims Act, Christiana Ochoa
Indiana Journal of Global Legal Studies
Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.
The Invisible Pillar Of Gideon, Adam M. Gershowitz
The Invisible Pillar Of Gideon, Adam M. Gershowitz
Indiana Law Journal
In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …
Contract Theory In Nineteenth-Century Indiana Courts: An Argument For Non-Bargain Based Promissory Liability, Paul Dubbeling
Contract Theory In Nineteenth-Century Indiana Courts: An Argument For Non-Bargain Based Promissory Liability, Paul Dubbeling
Indiana Law Journal
No abstract provided.
Tort Liability After The Dust Settles: An Economic Analysis Of The Airline Defendants' Duty To Ground Victims In The September 11 Litigation, David Y. Stevens
Tort Liability After The Dust Settles: An Economic Analysis Of The Airline Defendants' Duty To Ground Victims In The September 11 Litigation, David Y. Stevens
Indiana Law Journal
No abstract provided.
Courts And Globalization, Sir David Williams David Q. C.
Courts And Globalization, Sir David Williams David Q. C.
Indiana Journal of Global Legal Studies
Globalization, Courts, and Judicial Power Symposium
The Courts And Legislation: Anglo-American Contrasts (George P. Smith, Ii, Distinguished Professorship-Chair Of Law), Sir David Williams David Q. C.
The Courts And Legislation: Anglo-American Contrasts (George P. Smith, Ii, Distinguished Professorship-Chair Of Law), Sir David Williams David Q. C.
Indiana Journal of Global Legal Studies
On April 12, 2000, Sir David Williams delivered the following lecture at the Indiana School of Law-Bloomington in accordance with The George P. Smith, II, Distinguished Visiting Professorship-Chair of Law and Legal Research endowment. The Chair was established by George P. Smith to broaden students' exposure to scholars and judges of national and international reputation and to allow distinguished visiting scholars the opportunity to do research at Indiana University and share their ideas with the faculty and students of the Indiana University School of Law and Indiana University. George P. Smith, an Indiana native, received his B.S. degree in business, …
Slow And Steady Does Not Always Win The Race: The Nuremberg Files Web Site And What It Should Teach Us About Incitement And The Internet, Nadine E. Mcspadden
Slow And Steady Does Not Always Win The Race: The Nuremberg Files Web Site And What It Should Teach Us About Incitement And The Internet, Nadine E. Mcspadden
Indiana Law Journal
No abstract provided.
Professional Athletes-Held To A Higher Standard And Above The Law: A Comment On High-Profile Criminal Defendants And The Need For States To Establish High-Profile Courts, Laurie Nicole Robinson
Professional Athletes-Held To A Higher Standard And Above The Law: A Comment On High-Profile Criminal Defendants And The Need For States To Establish High-Profile Courts, Laurie Nicole Robinson
Indiana Law Journal
No abstract provided.
Legality, Standing And Substantive Review In Community Law, Paul Craig
Legality, Standing And Substantive Review In Community Law, Paul Craig
Articles by Maurer Faculty
No abstract provided.