Law Commons^™

The Afterlife Of Confederate Monuments, Jess Phelps, Jessica N. Owley

Indiana Law Journal

As communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels—by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where laws …

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Indiana Law Journal

Markets for unique digital property—digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity—have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

Indiana Law Journal

The availability of data related to the employment relationship has ballooned into an unruly mass of performance metrics, personal characteristics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

God Is My Roommate? Tax Exemptions For Parsonages Yesterday, Today, And (If Constitutional) Tomorrow, Samuel D. Brunson

Indiana Law Journal

In 2019, the Seventh Circuit decided an Establishment Clause question that had been percolating through the courts for two decades. It held that the parsonage allowance, which permits “ministers of the gospel” to receive an untaxed housing allowance, does not violate the Establishment Clause of the Constitution. It grounded its conclusion in part on the “historical significance” test the Supreme Court established in its Town of Greece v. Galloway decision.

In coming to that conclusion, the Seventh Circuit cited a 200-year unbroken history of property tax exemptions for religious property. According to the Seventh Circuit, that history demonstrated that both …

Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson

Indiana Law Journal

Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …

Blockchain Wills, Bridget J. Crawford

Indiana Law Journal

Blockchain technology has the potential to radically alter the way that people have

executed wills for centuries. This Article makes two principal claims—one

descriptive and the other normative. Descriptively, this Article suggests that

traditional wills formalities have been relaxed to the point that they no longer serve

the cautionary, protective, evidentiary, and channeling functions that scholars have

used to justify strict compliance with wills formalities. Widespread use of digital

technology in everyday communications has led to several notable cases in which

individuals have attempted to execute wills electronically. These wills have had a

mixed reception. Four states currently recognize electronic …

Contract Law’S Transferability Bias, Paul Macmahon

Indiana Law Journal

When A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, …

The Replicability Crisis In Patent Law, Janet Freilich

Indiana Law Journal

There is a “replicability crisis” in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments—up to 90%—do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether …

Zoning For Families, Sara C. Bronin

Indiana Law Journal

Is a group of eight unrelated adults and three children living together and sharing meals, household expenses, and responsibilities—and holding themselves out to the world to have long-term commitments to each other—a family? Not according to most zoning codes—including that of Hartford, Connecticut, where the preceding scenario presented itself a few years ago. Zoning, which is the local regulation of land use, almost always defines family, limiting those who may live in a dwelling unit to those who satisfy the zoning code’s definition. Often times, this definition is drafted in a way that excludes many modern living arrangements and preferences. …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Indiana Law Journal

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

Indiana Law Journal

Since the birth of the concept of a legally recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, “The Right to Privacy,” common law—with the aid of influential scholars—has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion upon seclusion involving nongovernmental use of drone technology. …

Afterlife Of The Death Tax, Samuel D. Brunson

Indiana Law Journal

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.

This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of …

Privacy Remedies, Lauren H. Scholz

Indiana Law Journal

When consumers sue companies for privacy-intrusive practices, they are often unsuccessful. Many cases fail in federal court at the motion to dismiss phase because the plaintiff has not shown the privacy infringement has caused her concrete harm. This is a symptom of a broader issue: the failure of courts and commentators to describe the relationship between privacy rights and privacy remedies.

This Article contends that restitution is the normal measure of privacy remedies. Restitution measures relief by economic gain to the defendant. If a plaintiff can show the likely ability to recover in restitution, that should be sufficient to pass …

Maintaining Condominiums And Homeowner Associations: How Much Of A Priority?, Stewart E. Sterk

Indiana Law Journal

This Article starts, in Part I, by exploring existing lien priorities, including state variations. Part II analyzes the impact of the recent foreclosure crisis, surveying the case law that has arisen in response to that crisis. Part III focuses on the normative analysis, explaining why legislatures should accord lien priority to associations. Part IV addresses implementation issues.

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Indiana Law Journal

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial …

Licenses And The Property/Contract Interface, Christina M. Mulligan

Indiana Law Journal

INTRODUCTION

I. THE ROLE OF FORMAL CATEGORIES

II. THE COMPOUND-PAUCITAL LICENSE

A. IDIOSYNCRASY AND INFORMATION ASYMMETRIES

B. REGULATING LICENSES

1. THE NOTICE STRATEGY

2. THE PROTECTION STRATEGY

III. RESTRAINTS ON ALIENATION AND USE

A. HARMS CAUSED BY RESTRAINTS ON ALIENATION AND USE

1. INCREASED INFORMATION COSTS

2.WASTE

B. LIMITING HARM WITH PROTECTIVE STANDARDIZATION

1. THE LICENSE V. SALE DISTINCTION IN PRACTICE

2.WHAT IS A DIGITAL SALE?

3. FAVORING SALES WITHOUT LOSING FLEXIBILITY

C. DISTINGUISHING BETWEEN IN REM AND IN PERSONAM LICENSE TERMS

IV. LICENSE REVOCATION

A. TIMING REVOCATION

B. BENEFITS AND CONCERNS

1.MANAGING SHARED RESOURCES VS. UPSET RELIANCE INTERESTS

2. …

Taking The Oceanfront Lot, Josh Eagle

Indiana Law Journal

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the …

Living With Owning, Matt Ampleman, Douglas A. Kysar

Indiana Law Journal

In October, 2011, Terry Thompson committed suicide by gunshot after cutting open the cages of fifty-six exotic animals on his farm in Zanesville, Ohio. Fearing for pub-lic safety, law enforcement officers systematically hunted down the escaped animals in an episode that garnered international attention and prompted renewed discus-sion of the propriety of exotic animal ownership. This Article retells and discusses the circumstances surrounding Terry Thompson’s unhinging, applying frameworks of legal theory, chiefly in the realm of property law, to assess the fabric that held Thompson’s delicate system together and the tensions that led to its unravelling. As an autopsy, the …

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 …

Takings And The Right To Fish And Float In Colorado, Aaron Pettis

Indiana Law Journal

No abstract provided.

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

Effective And Constitutional: Goals For A Hurricane Response Plan In The Aftermath Of Hurricanes Katrina And Rita, Neal Mchenry

Indiana Law Journal

No abstract provided.

The Myth Of Home Ownership And Why Home Ownership Is Not Always A Good Thing, A. Mechele Dickerson

Indiana Law Journal

Home ownership is viewed as key to achieving the "American Dream " and is now an essential element of the American cultural norm of what it means to be a success. The metastasizing mortgage crisis suggests, however, that our home ownership policies are out-dated, misguided, and largely ignore the actual market realities many potential homeowners now face. After briefly describing the current home ownership crisis, this Article argues that the United States should radically revise and restrict home ownership subsidies. Rather than encouraging universal home ownership, the Article argues that the government should replace existing home ownership subsidies with targeted …

Setting Boundaries For Extraterritorial Applications Of The Property Clause: An Assessment Of An Alternative Source Of Authority For Environmental Regulations, Cyril Robert Emery

Indiana Law Journal

No abstract provided.

How Changes In Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, Lior Jacob Strahilevitz

Indiana Law Journal

No abstract provided.

Not In My Backyard: A Critique Of Current Indiana Law On Land Use Moratoria, Thaddeus R. Ailes

Indiana Law Journal

No abstract provided.

Land Title Registration: An English Solution To An American Problem, C. Dent Bostick

Indiana Law Journal

No abstract provided.

Treatment Of Time-Share Interests Under The Bankruptcy Code, Mark C. Eriks

Indiana Law Journal

No abstract provided.

Municipal Zoning Restrictions On Adult Entertainment: Young, Its Progeny, Indianapolis' Commercial Special Exceptions Ordinance,, Kenneth L. Turchi

Indiana Law Journal

No abstract provided.

Indiana's Implied Warranty Of Fitness For Habitation: Limited Protection For Used Home Buyers, Gregory L. Crider

Indiana Law Journal

NOTE: A printing error labeled this issue Spring 1982, it should have been labeled Summer 1982