Law Commons^™

Congress, Tribal Recognition, And Legislative-Administrative Multiplicity, Kirsten Matoy Carlson

Indiana Law Journal

Most descriptions of federal recognition by political scientists, anthropologists, and legal scholars focus on an administrative process run by the Office of Federal Acknowledgment (OFA) within the Bureau of Indian Affairs (BIA). To the extent that scholars discuss the role of Congress in recognizing Indian nations, they suggest that it plays a diminishing one. In fact, this misconception pervades the field. Most scholars assume that Congress has largely ceded control over the recognition of Indian nations to the BIA.

This discrepancy begs the question: Who has it right? Hollywood screenwriters or the academic experts? The answer to this question matters …

April 2016

Headnotes

No abstract provided.

The Imposition Of Social Justice Morality In Legal Education, Julie D. Lawton

Indiana Journal of Law and Social Equality

No abstract provided.

When Poverty Is The Diagnosis: The Health Effects Of Living Without On The Individual, Emily A. Benfer, Amanda Walsh

Indiana Journal of Law and Social Equality

No abstract provided.

Sequela: Casey, Gonzales, And State Legislatures' Unscrupulous Use Of Science In Crafting Legislation To Regulate Pregnant Women And Women's Access To Reproductive Health, Samantha Von Ende

Indiana Journal of Law and Social Equality

Sparked by the unprecedented number of reproductive healthcare restrictions proposed and enacted by state governments from 2010 to 2014, this Note seeks to document the troubling trend and varying manifestations of legislation premised on unsound scientific evidence and purportedly enacted to advance states' recognized interests in protecting women's health and potential life. Such legal restrictions take many forms and are divided into four categories for the purpose of this paper: (1) Targeted Regulation of Abortion Providers, or TRAP laws; (2) Fetal Protection Laws that criminalize the behavior of pregnant women; (3) Fetal Protection Laws that impose complete bans on abortion …

The Right To Attention, Jasper L. Tran

Indiana Law Journal

What marketing, contracts, and healthcare—specifically informed consent and mandatory ultrasounds—have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective (e.g., how much information the communicator discloses) or on the information itself, but surprisingly, not much on the receiver’s perspective.

This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely …

Collapsing Illusions: Standards For Setting Efficient Contract And Other Defaults, Steven J. Burton

Indiana Law Journal

In this Essay, Professor Burton analyzes and evaluates four commonly used standards for setting efficient default rules and standards. Based on two theoretical insights, he shows that three of them collapse upon analysis into the fourth, a Coasian standard that turns out to be a dead end. The theoretical upshot is that the Coase Theorem often is a good reason to use defaults rather than mandatory rules or standards. But neither the theorem nor reference to a transaction-costless world sustains particular defaults. To set an efficient default, the law should guide courts toward supplying terms that parties should have adopted …

A Welfarist Perspective On Lies, Ariel Porat, Omri Yadlin

Indiana Law Journal

Should a Muslim employee who, in order to avoid discrimination, falsely stated in his job interview that he is Christian be fired for his dishonesty? Should a buyer of a tract of land who, before contracting, conducted an expensive investigation that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land’s mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead …

Standing For (And Up To) Separation Of Powers, Kent H. Barnett

Indiana Law Journal

The U.S. Constitution requires federal agencies to comply with separation-of-powers (or structural) safeguards, such as by obtaining valid appointments, exercising certain limited powers, and being sufficiently subject to the President’s control. Who can best protect these safeguards? A growing number of scholars would allow only the political branches—Congress and the President—to defend them. These scholars would limit or end judicial review because private judicial challenges are aberrant to justiciability doctrine and lead courts to meddle in minor matters that rarely affect regulatory outcomes.

This Article defends the right of private parties to assert justiciable structural causes of action, arguing that …

Silencing Grand Jury Witnesses, R. Michael Cassidy

Indiana Law Journal

This Article addresses one crucial aspect of the ongoing debate about grand jury transparency. Assuming that well over half the states and the federal government continue to employ the grand jury to investigate felony offenses, and assuming that these proceedings continue to be shielded from public view, should witnesses themselves be allowed to discuss their testimony with the press or with each other? This larger question raises two narrow but very important subsidiary issues. First, does a prosecutor who conditions a written proffer or cooperation agreement with a grand jury witness on the witness’s promise not to inform other targets, …

Absolute Conflicts Of Law, Anthony J. Colangelo

Indiana Law Journal

This Article coins the term “absolute conflicts of law” to describe situations of overlapping laws from different states that contain simultaneous contradictory commands. It argues that absolute conflicts are a unique legal phenomenon in need of a unique doctrine. The Article extensively explores what absolute conflicts are; how they qualitatively differ from other doctrines like true conflicts of law, act of state, and comity; and classifies absolute conflicts’ myriad doctrinal manifestations through a taxonomy that categorizes absolute conflicts as procedural, substantive, mixed, horizontal, and vertical.

The Article then proposes solutions to absolute conflicts that center on the rule of law …

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

Indiana Law Journal

There is a 250-year-old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision-making models suggest that criminals must be risk seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different from law-abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill informed, and may therefore …

Judging Adaptive Management Practices Of U.S. Agencies, Robert L. Fischman, J. B. Ruhl

Articles by Maurer Faculty

All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs …

Vol. 50, No. 10 (March 28, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 09 (March 21, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 08 (March 7, 2016)

Indiana Law Annotated

No abstract provided.

The Distractions Of Technology, Kimberly Mattioli

Articles by Maurer Faculty

Since the moment I became a librarian, I have had a problem with technology. It’s not that I can’t keep up with the developments or that I can’t figure out ways to incorporate technology into my work. My problem is much simpler in a way—I find technology too distracting. With my desktop, my phone, and my iPad sitting in my office, how could I not be drawn to the glowing screens and the limitless websites before me? The Internet is never-ending, and so too, it seems, is my ability to be distracted by it. With a little dedication, however, I …

March 2016 Magazine

Ergo

No abstract provided.

Unclaimed Money In Saudi Banks, Abdulrahman Almasnad

Maurer Theses and Dissertations

A law shall not violate its sources, especially if the sources are not subject to being overruled or ignored. However, one of the essential Islamic objectives is preserving the wealth “property.” This preservation requires protecting wealth from being acquired in illegitimate way, which will prevent the owners from controlling and enjoying their wealth. Islam protects true owners themselves from getting harmed or facing suffering caused by engaging in a transaction that involved their property. In making the law, Islamic scholars contend that any deliberate act that creates harm or makes someone suffer is “strictly prohibited” and must be rebuked. This …

March 2016

Headnotes

No abstract provided.

Vol. 50, No. 07 (February 29, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 06 (February 22, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 05 (February 15, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 04 (February 8, 2016)

Indiana Law Annotated

No abstract provided.

February 2016

Headnotes

No abstract provided.

Vol. 50, No. 03 (February 1, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 02 (January 25, 2016)

Indiana Law Annotated

No abstract provided.

Vol. 50, No. 01 (January 18, 2016)

Indiana Law Annotated

No abstract provided.

Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. And yet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professed inability to divine judicially-manageable standards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's …

Tlos And Global Financial Markets: The Case Of Derivatives, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.