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Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold Oct 2020

Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold

Indiana Law Journal

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.

This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …


Taking Systemic Risk Seriously In Financial Regulation, Todd Henderson, James C. Spindler Oct 2017

Taking Systemic Risk Seriously In Financial Regulation, Todd Henderson, James C. Spindler

Indiana Law Journal

Bank regulation failed in the run up to the financial crisis of2008, as it has numerous times in the course of U.S. history. This is despite the existence of traditional prudential regulation, such as capital adequacy mandates, reserve requirements, and bank examination, as well as more common legal remedies, such as tort and contract litigation. Unsurprisingly, in the wake of these failures, many reforms have been proposed, and some adopted, to try to reduce bank risk taking. These reforms include limiting bank size, requiring bank managers to be paid differently, restricting investment in high-risk financial products, and, of course, tightening …


Don't Let The Facts Get In The Way Of The Truth: Revisiting How Buckhannon And Alyeska Pipeline Messed Up The American Rule, Landyn Wm. Rookard Jul 2017

Don't Let The Facts Get In The Way Of The Truth: Revisiting How Buckhannon And Alyeska Pipeline Messed Up The American Rule, Landyn Wm. Rookard

Indiana Law Journal

No abstract provided.


National Protection Of Student-Athlete Mental Health: The Case For Federal Regulation Over The National Collegiate Athletic Association, Jayce Born Jul 2017

National Protection Of Student-Athlete Mental Health: The Case For Federal Regulation Over The National Collegiate Athletic Association, Jayce Born

Indiana Law Journal

No abstract provided.


Dictation And Delegation In Securities Regulation, Usha Rodrigues Apr 2017

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Indiana Law Journal

When Congress undertakes major financial reform, either it dictates the precise con-tours of the law itself or it delegates the bulk of the rule making to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rule making to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling, and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine …


Congress, Tribal Recognition, And Legislative-Administrative Multiplicity, Kirsten Matoy Carlson Apr 2016

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 …


Filling The D.C. Circuit Vacancies, Carl W. Tobias Dec 2015

Filling The D.C. Circuit Vacancies, Carl W. Tobias

Indiana Law Journal

Partisanship undermines judicial nominations to the U.S. Court of Appeals for the District of Columbia Circuit. With three of eleven judgeships vacant during Barack Obama’s first term, he was the only President in a half century not to appoint a jurist to the nation’s second-most important court. Confirming accomplished nominees, thus, became imperative for the circuit’s prompt, economical, and fair case disposition. In 2013, Obama submitted excellent candidates. Patricia Millett had argued thirty-two Supreme Court appeals; Cornelia Pillard successfully litigated numerous path-breaking matters; and Robert Wilkins had served on the D.C. District bench for three years. The purportedly shrinking tribunal …


The Government’S Lies And The Constitution, Helen L. Norton Dec 2015

The Government’S Lies And The Constitution, Helen L. Norton

Indiana Law Journal

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …


Zoning As Taxidermy: Neighborhood Conservation Districts And The Regulation Of Aesthetics, Anika S. Lemar Oct 2015

Zoning As Taxidermy: Neighborhood Conservation Districts And The Regulation Of Aesthetics, Anika S. Lemar

Indiana Law Journal

Over the last thirty years, municipalities across the country have embraced neighborhood conservation districts, regulations that impose design standards at the neighborhood level. Despite their adoption in thirty-five states, in municipalities from Boise to Cambridge, neighborhood conservation districts have evaded critical analysis by legal scholars. By regulating features such as architectural style, roof angle, and maximum eave overhang, conservation districts purport to protect “neighborhood character” or “cultural stability.” Implicit in these regulations is the unsupported assumption that the essential feature of a neighborhood’s character is its architectural design at a single point in time. The unfortunate result is zoning as …


Superstatute Theory And Administrative Common Law, Kathryn E. Kovacs Jul 2015

Superstatute Theory And Administrative Common Law, Kathryn E. Kovacs

Indiana Law Journal

This Article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act (APA) is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of …


Duty To Defend And The Rule Of Law, Gregory F. Zoeller Apr 2015

Duty To Defend And The Rule Of Law, Gregory F. Zoeller

Indiana Law Journal

This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)


The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt Jan 2015

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt

Indiana Law Journal

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …


Reforming The Regulation Of Community, Tanya D. Marsh Jan 2015

Reforming The Regulation Of Community, Tanya D. Marsh

Indiana Law Journal

The regulatory framework for financial institutions in the United States imposes significant costs on community banks without providing benefits to consumers or the economy that justify those costs. The Dodd-Frank Wall Street Reform and Consumer Protection Act builds on decades of “one-size-fits-all” regulation of financial institutions, an ill-conceived regulatory strategy that puts community banks at a competitive disadvantage as compared with their larger, more complex competitors. The imposition of regulatory burdens on community banks without attendant benefits ultimately harms both consumers and the economy by (1) forcing community banks to consolidate or go out of business, furthering the concentration of …


Should Chevron Have Two Steps?, Richard M. Re Apr 2014

Should Chevron Have Two Steps?, Richard M. Re

Indiana Law Journal

Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a …


Regulating The Corporate Tap: Applying Global Administrative Law Principles To Achieve The Human Right To Water, Kristin L. Retherford Apr 2013

Regulating The Corporate Tap: Applying Global Administrative Law Principles To Achieve The Human Right To Water, Kristin L. Retherford

Indiana Law Journal

No abstract provided.


Regulation, Renegotiation, And Reform: Improving Transnational Public-Private Partnerships In The Wake Of The Gulf Oil Spill, John J. Mckinlay Jul 2012

Regulation, Renegotiation, And Reform: Improving Transnational Public-Private Partnerships In The Wake Of The Gulf Oil Spill, John J. Mckinlay

Indiana Law Journal

No abstract provided.


Bank Capital Regulation By Enforcement: An Empirical Study, Julie A. Hill Apr 2012

Bank Capital Regulation By Enforcement: An Empirical Study, Julie A. Hill

Indiana Law Journal

Improving commercial bank capital requirements has been a top priority on the regulatory agenda since the beginning of the 2008 financial crisis. Unfortunately, some of the information necessary to make informed decisions about capital regulation has been missing. Existing regulations establish numerical capital requirements. Regulators, however, have significant discretion to set higher capital requirements for individual banks. In considering necessary reforms, regulators often focus on specific numerical requirements but sometimes ignore enforcement efforts. Without clear information about capital enforcement, it is impossible to make informed judgments about the current capital regulation system.

This Article provides a more complete picture of …


Judicial Review Of Public Utility Commissions, Jonathan Armiger Jul 2011

Judicial Review Of Public Utility Commissions, Jonathan Armiger

Indiana Law Journal

No abstract provided.


Beyond Chemicals: The Lessons That Toxic Substance Regulatory Reform Can Learn From Nanotechnology, Scott Bomkamp Jan 2010

Beyond Chemicals: The Lessons That Toxic Substance Regulatory Reform Can Learn From Nanotechnology, Scott Bomkamp

Indiana Law Journal

No abstract provided.


Preemption In Green Marketing: The Case For Uniform Federal Marketing Definitions, Robert B. White Jan 2010

Preemption In Green Marketing: The Case For Uniform Federal Marketing Definitions, Robert B. White

Indiana Law Journal

No abstract provided.


The Failure Of Adversarial Process In The Administrative State, Bryan T. Camp Jan 2009

The Failure Of Adversarial Process In The Administrative State, Bryan T. Camp

Indiana Law Journal

No abstract provided.


Maintaining Government Accountability: Calls For A "Public Use" Beyond Eminent Domain, Gregory S. Knapp Jul 2008

Maintaining Government Accountability: Calls For A "Public Use" Beyond Eminent Domain, Gregory S. Knapp

Indiana Law Journal

No abstract provided.


The U.S. Patent And Trademark Office's Proposed Information Disclosure Statement Rules: Too Novel And Nonobvious, Russell S. Magaziner Apr 2008

The U.S. Patent And Trademark Office's Proposed Information Disclosure Statement Rules: Too Novel And Nonobvious, Russell S. Magaziner

Indiana Law Journal

No abstract provided.


Forward, John S. Applegate, Robert L. Fischman Apr 2008

Forward, John S. Applegate, Robert L. Fischman

Indiana Law Journal

Scientific information has become a centralr ationalef or environmental regulation, and scientific uncertainty is viewed as a major obstacle in developing, justifying, and enforcing environmental laws and policies. In the context of environmental regulation, scientific information may be analyzed as subject to both supply and demand. A regulatory system that supplies more scientific information than it demands can operate effectively to impose protective regulation. By contrast, a system that demands more information than it supplies will face a "data gap "and will fail to accomplish its protective goals. The data gap can be addressed by applying regulatory techniques that increase …


Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer Apr 2007

Of Rules And Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction, Richard D. Freer

Indiana Law Journal

No abstract provided.


Examining The Underlying Purposes Of Municipal And Statewide Smoking Bans, Mark J. Horvick Jul 2005

Examining The Underlying Purposes Of Municipal And Statewide Smoking Bans, Mark J. Horvick

Indiana Law Journal

No abstract provided.


A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan Jul 2004

A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan

Indiana Law Journal

No abstract provided.


The Koon Trap: Why Imperfect Entrapment Fails To Justify Departure From The Federal Sentencing Guidelines, Joseph M. Meadows Apr 2002

The Koon Trap: Why Imperfect Entrapment Fails To Justify Departure From The Federal Sentencing Guidelines, Joseph M. Meadows

Indiana Law Journal

No abstract provided.


Investigating The Special: The Symbolic Function Of The Independent Counsel, Judith Roof Apr 2002

Investigating The Special: The Symbolic Function Of The Independent Counsel, Judith Roof

Indiana Law Journal

Symposium on "Law, Morality, and Popular Culture in the Public Sphere" at the Indiana University School of Law-Bloomington, April 6, 2001.


Expert Witnesses Under Rules 703 And 803(4) Of The Federal Rules Of Evidence: Separating The Wheat From The Chaff, L. Timothy Perrin Oct 1997

Expert Witnesses Under Rules 703 And 803(4) Of The Federal Rules Of Evidence: Separating The Wheat From The Chaff, L. Timothy Perrin

Indiana Law Journal

No abstract provided.