Law Commons^™

Three Maurer Faculty Awarded Titled Positions, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Vol. 62, No. 01 (January 17, 2022)

Indiana Law Annotated

No abstract provided.

Dau-Schmidt: Scotus Vaccine Ruling Raises As Many Questions As It Resolves, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Racial And Ethnic Ancestry Of The Nation's Black Law Students: An Analysis Of Data From The Lssse Survey, Kevin D. Brown, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

This article proceeds in three substantive parts. In Part I, we discuss the changing racial and ethnic ancestries of Black people in the United States since affirmative action began. In Part II, we discuss the LSSSE data set that we use along with our weighting procedure based on the ABA data. Also in Part II, we discuss the Public Use Microdata Sample (PUMS), a subset of the American Community Survey (ACS). We use the ACS PUMS to provide comparative national data to analyze the relative representation of each group of Blacks among law students. In Part III, we present the …

Overstepping: U.S. Immigration Judges And The Power To Develop The Record, Jayanth K. Krishnan

Articles by Maurer Faculty

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do …

Organized For Service: The Hicks Classification System And The Evolution Of Law School Curriculum, John L. Moreland

Articles by Maurer Faculty

This article traces the origins and development of the Hicks Classification System, an in-house organizational scheme used by the Yale Law Library from the late 1930s to the 1990s. It explores the relationship between the Hicks Classification System and the changing pedagogical methods of the law school curriculum during the early part of the 20th century. It provides a brief biographical sketch of Frederick C. Hicks, creator of the scheme, the need for a legal classification system, a detailed analysis of Hicks’s scheme, its finding aids, and a discussion of the inherent cultural biases in the system.

“The Virus Of Liberty”: John Perry Barlow, Internet Law, And Grateful Dead Studies, Joseph A. Tomain

Articles by Maurer Faculty

In 2019, the Duke Law and Technology Review published a special issue titled, "The Past and Future of the Internet: A Symposium for John Perry Barlow." This essay examines the legal scholarship in the Barlow symposium and frames it in the interdisciplinary terms of Grateful Dead studies. Part I focuses on the two Barlow essays that formed the basis of the symposium. Part II connects issues raised by the Barlow symposium to Grateful Dead studies. The essay concludes that Barlow's legacy should inspire others to engage both the cultural and political paths with “groundless hope,” because protecting the “inexplicable pleasures …

Considering "Machine Testimony": The Impact Of Facial Recognition Software On Eyewitness Identifications, Valena Beety

Articles by Maurer Faculty

This Article uses a wrongful conviction lens to compare identifications by machines, notably facial recognition software, with identifications by humans. The Article advocates for greater reliability checks on both before use against a criminal defendant. The Article examines the cascading influence of facial recognition software on eyewitness identifications themselves and the related potential for greater errors. As a solution, the Article advocates the inclusion of eyewitness identification in the Organization of Scientific Area Committees' ("OSAC") review of facial recognition software for a more robust examination and consideration of software and its usage. The Article also encourages police departments to adopt …

Lexipol's Fight Against Police Reform, Ingrid V. Eagly, Joanna C. Schwartz

Indiana Law Journal

We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force.

This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards. Founded in 2003, Lexipol now writes police policies and trainings for over one-fifth of American law enforcement agencies. As this Article …

Rethinking Juvenile Rehabilitation: Presumptive Waiver And Alternative Sentencing In Indiana, S. Reese Sobol Ii

Indiana Law Journal

Indiana’s juvenile justice system, like all systems of juvenile justice, is premised on rehabilitation. And while Indiana is far from an outdated, overly punitive system, there are several tangible opportunities for improvement. Indiana enacted an alternative sentencing scheme for juvenile offenders waived into adult court in 2013, but alternative sentencing has not been implemented in an effective manner yet. Furthermore, Indiana’s statutory system of waiver contains several aspects that are inconsistent with, or simply fail to account for, modern social science understandings.

This Comment seeks to expound upon relevant social science principles within the context of juvenile justice in order …

Using The Internal Revenue Code To Limit Coaching Salaries: A Proposal To Bring Amateurism Back Into College Football, Blaire Mikesell

Indiana Law Journal

Since formal collegiate athletic competitions began in 1852, they have gained popularity and become a mainstay in American culture. This rise in popularity coupled with increased media coverage allowed college athletics, and particularly college football, to grow into a successful business that generates billions of dollars in revenue each year. Colleges and institutions earn this athletic revenue as tax-free income due to their tax-exempt status under the Internal Revenue Code § 501(c)(3) tax-exemption statute. The basic policy underlying this statute is as follows: colleges and universities provide an important benefit to the public by providing education, and in exchange for …

Acquisitions Entrepreneurship: One Solution To The Looming Business Succession Crisis, David Nows

Indiana Law Journal

In the coming years, there will be a growing supply of small businesses held by aging owners that need to execute a succession plan, transitioning the business to a new owner that can carry the business forward in future years. Unfortunately, very few of these Baby Boomer-led businesses have a plan for who will take over for the primary business owner when the time comes, creating an emerging leadership crisis. However, there is an underutilized acquisition strategy that allows for a motivated and skilled entrepreneur to team with a small group of investors to search for (and ultimately to purchase) …

Bostock And Contact Theory: How Will A Single U.S. Supreme Court Decision Reduce Prejudice Against Lgbtq People?, Mantas Grigorovicius

Indiana Law Journal

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that antidiscrimination laws help to “lead and guide the folkways,” and this Comment explores how …

Mandating Board Diversity, Sung Eun (Summer) Kim

Indiana Law Journal

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who selfidentifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort …

What Will The “Foreseeable Future” Bring For Climate- Imperiled Species?, Olivia Bauer

Indiana Law Journal

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the …

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …

Regulating Noncompetes Beyond The Common Law: The Uniform Restrictive Employment Agreement Act, Stewart J. Schwab

Indiana Law Journal

The common law has never treated a post-employment noncompete agreement between employer and employee like an ordinary contract. Rather, a court will enforce a noncompete only if it is reasonably tailored in time, geography, and scope of business to further a legitimate employer interest. Suppressing competition is an understandable but not legitimate interest.

While the common-law approach works well enough for some occupations, it is problematic for both workers and employers in many cases. It is a challenge for workers who don’t know about the noncompete until after starting work, for lowwage workers who are unlikely to have trade secrets …

The Oslo Accords: A Modern-Day Story Of Occupation Told Through Violations Of The Right To Freedom Of Privacy, Catherine Demetrovich

Indiana Law Journal

The Israeli-Palestinian conflict began in the early 1900s when the disputed land, what is now the West Bank and the Gaza Strip, fell under British rule. After the Six- Day War in 1967, Israel took control of the West Bank, Golan Heights, and the Gaza Strip. Since then, tensions between Israel and Palestine have continued to grow. This Note explores a modern-day occupation question: Israel’s control over Palestine’s information and communication technology (ICT) sector. Along with privacy and human rights violations, Israel’s control is in direct violation of the Oslo Accords— guaranteeing Palestinians limited self-governance in Gaza and the West …

January 2022 Newsletter

Ergo

No abstract provided.

Worth A Shot: Encouraging Vaccine Uptake Through "Empathy", Jody L. Madeira

Articles by Maurer Faculty

Pro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.

This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies …

Can Social Science Teach Congress New Tricks?: Addressing The Need For Educational Support Dogs In Classrooms, Elaina H. Wilson

Indiana Law Journal

In the United States, children with disabilities are afforded protections in three federal statutes: the Individuals with Disabilities Education Act; Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990. However, these laws fail to provide for educational support dogs in public schools, despite the common and successful use of educational support dogs in other countries. The success of educational support dogs abroad is not suprising, as recent waves of social science research make clear the benefits of dogs in schools, from increased productivity within the classroom to improved morale within the school community …

Cannabis Derivatives And Trademark Registration: The Case Of Delta-8-Thc, W. Michael Schuster

Indiana Law Journal

The legal environment surrounding the cannabis industry is ambiguous and constantly changing. While cannabis is prohibited under federal law, a 2018 statute legalized a variant of the cannabis plant (“hemp”) that is low in its most common intoxicating agents. Recognizing this, entrepreneurs began to process hemp to extract and sell chemicals contained therein. Included in this trend is the extraction of Delta-8 Tetrahydrocannabinol (Δ8-THC)—a psychoactive drug with an increasing market presence in states where most cannabis (e.g., “marijuana”) is illegal.

As competition in the Δ8-THC field emerged, firms sought to distinguish their wares through brand recognition and federal trademark registration. …

The Limits Of Regulation By Insurance, Kenneth S. Abraham, Daniel Benjamin Schwarcz

Indiana Law Journal

Insurance is an enormously powerful and beneficial method of spreading risk and compensating for loss. But even insurance has its limits. A new and misleading aspiration for insurance—that it also can and often does substitute for or significantly complement health and safety regulation—is increasingly in vogue. This vision starts from the uncontroversial recognition that insurers typically adopt measures designed to counteract “moral hazard,” the tendency of insurance to blunt policyholders’ incentives to take care. But proponents of this vision go on to contend that the risk-reducing potential of insurance is significantly more extensive than is traditionally imagined, because insurers are …

The Next Pandemic Might Be A Petdemic, Hillary Greene

Indiana Law Journal

A new scientific study shows that COVID-19 can be transmitted from cats to humans. Luckily, this channel of transmission seems extremely rare, at least thus far. But next time—and there will be a next time—we may not be so fortunate. This Article addresses this underappreciated risk of what I term a “petdemic”—a pandemic or epidemic that involves significant disease transmission between pets and humans. With nearly 70% of U.S. households owning pets, a petdemic could be catastrophic. One of our go-to responses for even perceived petdemics, honed over the last century, is to slaughter our pets. This pioneering Article proposes …

Do Social Movements Spur Corporate Change? The Rise Of “Metoo Termination Rights” In Ceo Contracts, Rachel Arnow-Richman, James Hicks, Steven Davidoff Solomon

Indiana Law Journal

Do social movements spur corporate change? This Article sheds new empirical and theoretical light on the issue through an original study of executive contracts before and after MeToo. The MeToo movement, beginning in late 2017, exposed a workplace culture seemingly permissive of high-level, sex-based misconduct. Companies typically responded slowly and imposed few consequences on perpetrators, often allowing them to depart with lucrative exit packages. Why did companies reward rather than penalize bad actors, and has the movement disrupted this culture of complicity?

The passage of time since the height of the movement allows us to investigate these issues empirically, using …

Patent Inconsistency, Saurabh Vishnubhakat

Indiana Law Journal

Despite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article …

Delusions, Moral Incapacity, And The Case For Moral Wrongfulness, Lea Johnston

Indiana Law Journal

Responsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of …

Stealing Organs?, Benjamin Mcmichael

Indiana Law Journal

Every nine minutes, a new person joins a waitlist for an organ transplant, and every day, seventeen people die waiting for an organ that will never come. Because the need for organ transplants far outstrips the number of available organs, the policies and rules governing organ allocation in the United States are critically important and highly contentious. Recently, proponents of a new allocation system—one focused more on sharing organs across the nation instead of allocating organs primarily to local transplant candidates—have gained ground. Bolstered by two separate lawsuits in the past five years, advocates of greater national sharing have succeeded …

Promoting Regulatory Prediction, Jonathan S. Masur, Jonathan Remy Nash

Indiana Law Journal

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

"On The Eve Of Destruction": Courts Confronting The Climate Emergency, Mary Christina Wood

Indiana Law Journal

In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no …