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Articles 1 - 30 of 37
Full-Text Articles in Law
Regulating On The Fringe: Reexamining The Link Between Fringe Banking And Financial Distress, Jim Hawkins
Regulating On The Fringe: Reexamining The Link Between Fringe Banking And Financial Distress, Jim Hawkins
Indiana Law Journal
Critics of fringe banking—products like payday loans, pawn loans, and rent-toown leases—frequently argue that these products cause borrowers to experience financial distress. This argument has enormous intuitive appeal: Fringe credit is very costly, and usually the borrowers who use it are already in a serious financial bind. Taking on additional debt and paying high prices for it, the reasoning goes, drive them over the brink. Surprisingly, however, linking financial distress to fringe banking is extremely difficult to do. This Article represents the first attempt to uncover the relationship between fringe banking and financial distress by systematically analyzing the structure of …
Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr
Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr
Indiana Law Journal
One of the most famous Supreme Court tax cases celebrated its eightieth birthday last year. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This Article affirms that family taxation continues to follow ownership, not marriage, despite the federal government’s position that the “ownership equals taxability” rule applies almost exclusively to heterosexual spouses. Verifying the vitality of this principle carries significant implications for all families, particularly nontraditional families. Under the aegis of Seaborn, the principle authorizes certain members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file …
Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke
Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke
Indiana Law Journal
Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …
Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin
Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin
Indiana Law Journal
An emerging consensus among election law scholars urges courts to break out of “the stagnant discourse of individual rights and competing state interests” and instead adopt a jurisprudence of “structural” democratic values that sidelines individual rights. This structuralist approach won out in the great “rightsstructure” debate in election law, and came to dominate the field, during a period in which the main controversies—vote dilution, gerrymandering, ballot access, campaign finance—were all ones in which the structuralist move was illuminating. However, structuralism is now causing both scholars and courts to evaluate the new wave of vote denial controversies, over such issues as …
Reviled Mothers: Custody Modification Cases Involving Domestic Violence, Megan Shipley
Reviled Mothers: Custody Modification Cases Involving Domestic Violence, Megan Shipley
Indiana Law Journal
No abstract provided.
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Indiana Law Journal
No abstract provided.
Behavioral Antitrust, Amanda P. Reeves, Maurice E. Stucke
Behavioral Antitrust, Amanda P. Reeves, Maurice E. Stucke
Indiana Law Journal
No abstract provided.
A Tribute To Patrick Baude, Randall T. Shepard, Lauren K. Robel, Daniel O. Conkle, Laura J. Cooper, Roger B. Dworkin, Jeffrey E. Stake
A Tribute To Patrick Baude, Randall T. Shepard, Lauren K. Robel, Daniel O. Conkle, Laura J. Cooper, Roger B. Dworkin, Jeffrey E. Stake
Indiana Law Journal
The Board of Editors dedicates Volume 86 of the Indiana Law Journal to the memory of Patrick Baude, who taught at the School of Law from August 1968 until his death in January 2011, and who served for many years as the faculty advisor for the Indiana Law Journal. As evidenced below, Professor Baude’s influence spread far beyond the bounds of his classroom walls, and his presence in the Law School’s community will be sorely missed.
Between Victim And Agent: A Third-Way Feminist Account Of Trafficking For Sex Work, Shelley Cavalieri
Between Victim And Agent: A Third-Way Feminist Account Of Trafficking For Sex Work, Shelley Cavalieri
Indiana Law Journal
Feminist legal theorists have devoted enormous attention to conceptualizing the issues of sex work and trafficking for sexual purposes. While these theories vary, they typically fall into one of two camps. The abolitionist perspective, having grown out of dominance feminist theory, perceives sex work as inherently exploitative. In contrast, a second group of theorists adopts a liberal notion of individual choice and draws on the poststructuralist rejection of gender essentialism to envision a theoretical model of sex-worker rights. The legal and public policies that grow from these two models are similarly polarized. Radical feminist abolitionists are often strange bedfellows with …
To Lynch A Child: Bullying And Gender Nonconformity In Our Nation's Schools, Michael J. Higdon
To Lynch A Child: Bullying And Gender Nonconformity In Our Nation's Schools, Michael J. Higdon
Indiana Law Journal
No abstract provided.
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
Indiana Law Journal
No abstract provided.
A Shift In The Wind: The Siting Of Wind Power Projects On Public Lands In The Obama Era, Eric S. Spengle
A Shift In The Wind: The Siting Of Wind Power Projects On Public Lands In The Obama Era, Eric S. Spengle
Indiana Law Journal
No abstract provided.
The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt
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. …
Original Acquisition Of Property: From Conquest & Possession To Democracy & Equal Opportunity, Joseph William Singer
Original Acquisition Of Property: From Conquest & Possession To Democracy & Equal Opportunity, Joseph William Singer
Indiana Law Journal
2010 Harris Lecture, delivered April 5, 2010, Indiana University, Maurer School of Law, Bloomington, Indiana
Judicial Review Of Public Utility Commissions, Jonathan Armiger
Judicial Review Of Public Utility Commissions, Jonathan Armiger
Indiana Law Journal
No abstract provided.
Patents, Presumptions, And Public Notice, Timothy R. Holbrook
Patents, Presumptions, And Public Notice, Timothy R. Holbrook
Indiana Law Journal
Patents are peculiar legal instruments in that they contain both technical and legal information. This Janus-like nature of the documents is important because they serve the legal purpose of affording the owner the right to exclude others from practicing the invention, and third parties need to be able to assess the scope of that right. At the same time, through the patent’s disclosure, the document is intended to contribute to the storehouse of technical knowledge. Superficially, patents are generally viewed through the eyes of the hypothetical person having ordinary skill in the art (PHOSITA), patent law’s “reasonable person.” Unfortunately, the …
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Indiana Law Journal
When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for selfdefense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals―not just communities―have the right to protect themselves from public violence. Individuals―not just militias―have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, …
The Boundaries Of Privacy Harm, M. Ryan Calo
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 …
Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer
Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer
Indiana Law Journal
Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.
Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …
Procedure's Ambiguity, Mark Moller
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
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 …
Coase, Institutionalism, And The Origins Of Law And Economics, Herbert Hovenkamp
Coase, Institutionalism, And The Origins Of Law And Economics, Herbert Hovenkamp
Indiana Law Journal
No abstract provided.
False Forward-Looking Statements And The Pslra's Safe Harbor, Ann Morales Olazabal
False Forward-Looking Statements And The Pslra's Safe Harbor, Ann Morales Olazabal
Indiana Law Journal
Voluntary public disclosure of soft information—corporate projections and predictions and other forward-looking statements—is now the norm, following a brief learning curve after the enactment of the Private Securities Litigation Reform Act’s safe harbor for forward-looking information in 1995. As a consequence, allegations of false forward-looking statements are also quite standard in today’s class action securities fraud pleading. This work addresses an emerging trend, spearheaded by the Seventh Circuit’s decision in Asher v. Baxter International, to introduce a subjective scienter or intent-like inquiry into consideration of the application of the PSLRA’s safe harbor. Numerous district courts have followed Asher’s lead, employing …
Re-Solidifying Racial Bloc Voting: Empirics And Legal Doctrine In The Melting Pot, D. James Greiner
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 …
Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So
Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So
Indiana Law Journal
No abstract provided.
The Material Support Prosecution And Foreign Policy, Wadie E. Said
The Material Support Prosecution And Foreign Policy, Wadie E. Said
Indiana Law Journal
No abstract provided.
Bullycide In American Schools: Forging A Comprehensive Legislative Solution, Jason A. Wallace
Bullycide In American Schools: Forging A Comprehensive Legislative Solution, Jason A. Wallace
Indiana Law Journal
No abstract provided.
Community As A Redistricting Principle: Consulting Media Markets In Drawing District Lines, Jason C. Miller
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 …
Fundamental Versus Deferential: Appellate Review Of Terminations Of Parental Rights, Karen A. Wyle
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 …
When Should Asset Appreciation Be Taxed?: The Case For A Disposition Standard Of Realization, Jeffrey L. Kwall
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 …