Law Commons^™

Alternative Routes For Military Grievance, Courtney Kintz

Indiana Journal of Constitutional Design

Once a country experiences a coup, that country is likely to experience another coup within six years and, since 1950, there have been at least 240 military coups. On average, about half of all coup attempts involve fatalities, with most resulting in governmental and civilian deaths. So, once a country experiences a coup, it is statistically likely that another coup will expose citizens to more uncertainty about their safety. For a citizen whose country has experienced a recent coup, this data is alarming as an incident of one coup starts the stopwatch for another coup occurring within a few years. …

Thirty-Five Years Of The 1988 Brazilian Constitution: Rights, Promises And Democratic Resilience, Luis Roberto Barroso, Patricia Perrone Campos Mello

Indiana Journal of Constitutional Design

This article provides a historical perspective on the moments anticipating the formation of Brazil’s 1988 Constitution, as well as a reflection on the future of Brazilian democracy. It is divided into four parts. Part I recounts the historical circumstances prior to the convening of the Constituent Assembly, which led to the 1988 Constitution. Part II analyzes the changes brought about by the new Constitution, especially regarding the three branches of government, as well as the evolutions in Brazilian constitutional theory over the period. Part III evaluates some of the critical moments experienced during its thirty-five years in force. The article …

Doe Not Worry: Expanding Protections For Unaccompanied Children, Heidi E. Davis

Indiana Journal of Law and Social Equality

A recent Fourth Circuit decision created a circuit split regarding the standard applied to constitutional violations in secure holding facilities. The more “liberal” professional judgment standard—as promulgated by Youngberg v. Romeo and applied to unaccompanied immigrant minors in Doe 4 ex rel. Lopez—is necessary but insufficient for the protection of unaccompanied children. This Note first examines the origins of the professional judgment standard in the Youngberg case. Then, cases are surveyed showing that the Supreme Court has recognized children as a vulnerable population, and current regulations, legislation, and court opinions recognize the vulnerabilities of unaccompanied children. With these ideas in …

Corporate Climate Litigation And Environmental Justice: How Green Amendments Can Be Used To Advance Accountability And Equity, Noah Hines

Indiana Journal of Law and Social Equality

The term “Green Amendment” was first coined by author Maya van Rossum in her 2017 book The Green Amendment: Securing Our Right to a Healthy Environment, in which she argues that modern environmental protection laws are fundamentally failing the most vulnerable people in society and proposes the creation of new constitutional rights as a solution. The provisions van Rossum argues ought to be added to state constitutions as “Green Amendments” are also sometimes called “Environmental Rights Amendments,” and generally enumerate the right of all citizens to a clean or healthy environment. Green Amendments currently exist in Pennsylvania, Montana, Illinois, Hawaii, …

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

Don't Mess With Texans' Rights: Protecting Transgender Youth From The Paternalistic Policies Of State Executives, Mary Franklin

Indiana Journal of Law and Social Equality

Texas Attorney General Ken Paxton issued an opinion in 2022 detailing how gender-affirming care for transgender minors constituted child abuse under the Texas Family Code. As a result of this opinion, multiple families of trans teens engaging in various forms of gender-affirming care were investigated by the Texas Department of Family and Protective Services. This Article applies the constitutional standards imposed by the equal protection clause, substantive due process, and parental authority to Paxton’s recommendation, using both the U.S. and Texas Constitutions. Ultimately, this Article concludes that Paxton’s opinion fails to meet these constitutional standards and recommends action from the …

Tolled Education: An Economic Markets And Goods Analysis Of Inefficiencies In American Public Education, Ethan Dilks

Indiana Journal of Law and Social Equality

The goal of this Comment is to evaluate the failures of the current system of education within the United States via policy and economic market and goods analysis lenses; in doing so, it will establish that public education in the United States is a toll good, and the only way to properly fix the inefficiencies that result is to reduce excludability and convert the education into a public good. First, Part I will overview how we got here by describing relevant laws and history, the current state of federal case law, and the dire situation for many students throughout the …

Cut The Baby Talk: Negotiating Pregnancy Clauses In Women's Athletic Contracts, Courtney Luis

Indiana Journal of Law and Social Equality

Many athletic departments, organizations, teams, and leagues have regulations that address the event of pregnancy in their athletes. As interest and participation in women’s sports continues to grow, along with the number and profitability of female athletes, pregnancy clauses are becoming increasingly common in athletic contracts for women.

Pregnancy clauses are an often overlooked section of athletic contracts and sports deals but can have far-reaching consequences for female athletes. Many athletic departments and organizations have attempted to create standardized regulations on how to deal with female athletes who become pregnant; however, these attempts are usually confusing, unclear, and regularly fail …

Fulfilling The Promise Of The Housing Choice Voucher Program: Blind Review As An Enforcement Method For Source-Of-Income Antidiscrimination Laws, Zachary Wakefield

Indiana Journal of Law and Social Equality

The housing choice voucher program (HCV) is one that provides subsidies to very low-income individuals. These subsidies allow recipients of the vouchers to pay thirty percent of their income out of pocket towards their rent, with the difference being paid by the subsidy from the government directly to a landlord. Although the program itself is federal, it is administered by the states at the local level. As with most housing in the United States, the Fair Housing Act protects HCV recipients from discrimination based on “race, color, religion, sex, familial status, or national origin,” regardless of the state where the …

Disability Discrimination By Clinical Algorithm, Elizabeth Pendo, Jennifer D. Oliva

Articles by Maurer Faculty

In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.

Research demonstrates that clinical overreliance on the risk scores generated by …

Cutting The Gordian Knot: Legislative Courts And Due Process, Martin H. Redish, Austin Piatt

Indiana Law Journal

Legislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle it will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants.

That is where due process comes in. Despite the fundamental …

On Copyright Utilitarianism, Patrick R. Goold, David A. Simon

Indiana Law Journal

Utilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so …

The Rights Of Donor-Conceived Persons In Colorado: America's First Foray Into Abolishing Anonymous Gamete Donation, Madeline Ash

Indiana Law Journal

On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United …

The Criminal Metaverse, Eldar Haber

Indiana Law Journal

Virtual worlds are no longer science fiction. New technologies that promise a world lacking physical or mental boundaries are finally becoming a reality. Commonly referred to as the metaverse, this innovative technology opens a world of opportunities for individuals everywhere to experience an almost unlimited virtual dimension where they can play, work, own property, engage in sexual activities, and fulfill their dreams. Unlike previous virtual worlds, the metaverse could be a gamechanger as it offers an immersive experience. It feels authentic to the users and will become even more realistic with advancements in haptic technology. With its benefits, the technology …

State Taxes And "Pike Balancing", Bradley W. Joondeph

Indiana Law Journal

For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce …

Content Moderation Regulation As Legal Role-Scripting, Sari Mazzurco

Indiana Law Journal

Lawmakers and scholars concerned with content moderation regulation typically appeal to “analogies” to justify or undermine different forms of regulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are “like” speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores.

Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are “right” and “wrong” within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what …

Tax Enforcement By The Private Sector: Deputizing Tax Insurers, Heather M. Field

Indiana Law Journal

The IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with …

A Theory Of Genetic Dimensions In The Law, Yaniv Heled, Liza Vertinsky, Ana Santos Rutschman

Indiana Law Journal

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

The Supreme Court, Constitutional Development, And Evolution Theory: A Critique, Charles M. Lamb Ph.D., Jacob R. Neiheisel

Indiana Law Journal

This article spotlights how University of Chicago Professor David Strauss’s publications present the early stages of a descriptive theory of constitutional interpretation and evolution, and how his theoretical contributions might be strengthened. Specifically highlighted here are ten milestone Supreme Court rulings with the objective of determining which were “evolutionary” as opposed to “modernizing,” based on Strauss’s theoretical formulations. On various occasions these cases demonstrate how Strauss’s theory can be not only refined but broadened. The concluding section assesses Strauss’s contribution to the study of American constitutional development and how it might be revamped. There we argue that despite Strauss’s influence …

Counterman V. Colorado: True Threats, Speech Harms, And Missed Opportunities, R. George Wright

Indiana Law Journal

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.

The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure …

Framing Online Speech Governance As An Algorithmic Accountability Issue, Mehtab Khan

Indiana Law Journal

Automated tools used in online speech governance are prone to errors on a large-scale yet widely used. Legal and policy responses have largely focused on case-by-case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I …

A New Criminal Response Framework: Rejecting The "Four Horsemen Of The Carceral State", George Glass

Indiana Law Journal

Many first-year criminal law courses begin with a discussion of the nineteenth-century English case Regina v. Dudley & Stephens. In this case, a ship was caught in a storm, and while stranded at sea, two men decided to kill and eat a younger man in order to survive. The case considers whether these two men should be punished for killing the third man, and if so, how severe should that punishment be. For many law students, this is one of the rare occasions when they are asked whether punishment is justified. Soon, they will instead be asked which of the …

Patent Term Tailoring, Sarah Rajec

Indiana Law Journal

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

Defining Religion And Accommodating Religious Exercise, Justin Collings, Anna Bryner

Indiana Law Journal

It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also …

The Trade Origins Of Privacy Law, Anupam Chander

Indiana Law Journal

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Interlocal Power Roulette, Daniel B. Rosenbaum

Indiana Law Journal

Local governments inhabit a crowded ecosystem. Cities, counties, and school districts—and many more—share overlapping territorial jurisdictions. Overlapping jurisdiction goes hand-in-hand with redundant local power, defined as a scenario where multiple governments hold independent authority to take the exact same action in the exact same territorial space. In Maine, for example, state law empowers three local bodies to operate the same sewer infrastructure. In Detroit, two separate entities are equally tasked with managing the city’s streetlights. And in communities across the country, local governments are broadly authorized to own the same parcels of public land, including in Oakland, California, where public …

Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell

Indiana Journal of Law and Social Equality

Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …

Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino

IP Theory

The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second …

The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang

IP Theory

The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.

Will the copyright regime continue …

Comparative Intellectual Property & Religion, Tabrez Y. Ebrahim

IP Theory

This Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy …