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Indiana Law Journal

2012

Articles 1 - 30 of 56

Full-Text Articles in Law

How Nations Share, Allison Christians Oct 2012

How Nations Share, Allison Christians

Indiana Law Journal

Every nation has an interest in sharing the gains they help create by participating in globalization. Citizens should be very interested in discovering how well their governments fare in claiming an adequate share of this international income stream, since a government that cannot or will not exert its taxing jurisdiction internationally is potentially missing out on a very large and very productive source of revenue. Yet it is all but impossible for citizens to observe exactly how, or how well, their governments navigate this aspect of economic globalization. The vast majority of international tax law plays out in practice through …


Rethinking Hiv-Exposure Crimes, Margo Kaplan Oct 2012

Rethinking Hiv-Exposure Crimes, Margo Kaplan

Indiana Law Journal

This Article challenges the current legislative and scholarly approaches to HIV-exposure crimes and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities of people with HIV. Current statutes and the scholarship that supports them focus on HIV-positive status, sexual activity, and knowledge of HIV-positive status as proxies for risk, mental state, and consent to risk. As a result, they are dramatically over- and underinclusive and stigmatize individuals living with HIV. Criminalization should be limited to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a …


Lost Life And Life Projects, Sean Hannon Williams Oct 2012

Lost Life And Life Projects, Sean Hannon Williams

Indiana Law Journal

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …


Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson Oct 2012

Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson

Indiana Law Journal

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. Recent scholarship …


Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu Oct 2012

Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu

Indiana Law Journal

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …


Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins Oct 2012

Delaware’S Balancing Act, John Armour, Bernard S. Black, Brian R. Cheffins

Indiana Law Journal

Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation is under threat. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. …


Reforming The Good Moral Character Requirement For U.S. Citizenship, Kevin Lapp Oct 2012

Reforming The Good Moral Character Requirement For U.S. Citizenship, Kevin Lapp

Indiana Law Journal

This Article explores the impact of the convergence of criminal law and immigration law on the most valued government benefit in the land: citizenship. Specifically, it examines how criminal history influences the opportunity to naturalize through the good moral character requirement for U.S. citizenship.

Since 1790, naturalization applicants have been required to prove their good moral character. Enacted to ensure that applicants were fit for membership and would not be disruptive or destructive to the community, the character requirement also allowed for the reformation and eventual naturalization of those guilty of past misconduct. This Article shows that recent changes in …


The False Promise Of The Converse-1983 Action, John F. Preis Oct 2012

The False Promise Of The Converse-1983 Action, John F. Preis

Indiana Law Journal

The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but …


The Price They Pay: Protecting The Mother-Child Relationship Through The Use Of Prison Nurseries And Residential Parenting Programs, Anne E. Jbara Oct 2012

The Price They Pay: Protecting The Mother-Child Relationship Through The Use Of Prison Nurseries And Residential Parenting Programs, Anne E. Jbara

Indiana Law Journal

Over the past century, while advocates of prison nurseries have applauded their individual and societal benefits, opponents have criticized their touchy-feely undertones, arguing that children do not belong behind bars. New York instituted the first modern prison nursery program in 1901 at its Bedford Hills facility, and the nursery has existed ever since. The federal government and a number of other states have followed suit in developing programs that, to varying degrees, give mothers and infants an opportunity to remain together until the infant reaches a particular age. The requirements for such programs vary by state but generally only permit …


Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia Oct 2012

Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia

Indiana Law Journal

In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster …


Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik Jul 2012

Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik

Indiana Law Journal

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …


Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas Jul 2012

Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas

Indiana Law Journal

No abstract provided.


Originalism In Practice, Lawrence Rosenthal Jul 2012

Originalism In Practice, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.


Reverberations Of The Victim's "Voice": Victim Impact Statements And The Cultural Project Of Punishment, Erin L. Sheley Jul 2012

Reverberations Of The Victim's "Voice": Victim Impact Statements And The Cultural Project Of Punishment, Erin L. Sheley

Indiana Law Journal

No abstract provided.


The Sky Is Not Falling: The Effect Of A Performance Right On The Radio Market, Gregory F. Donahue Jul 2012

The Sky Is Not Falling: The Effect Of A Performance Right On The Radio Market, Gregory F. Donahue

Indiana Law Journal

No abstract provided.


Using The Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, Norman D. Bishara, David Orozco Professor Jul 2012

Using The Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, Norman D. Bishara, David Orozco Professor

Indiana Law Journal

This Article addresses the legitimacy of competing interests involved in the enforcement of covenants not to compete (“noncompetes”). To date, the courts and legislatures have not relied on a principled theoretical framework to identify and assess the competing interests between firms and individuals in this setting. This Article fills the research void by providing a theoretical framework that identifies the legitimacy of these competing claims. The framework integrates managerial research involving the resource-based theory of the firm and the knowledge-based perspective of competitive advantage with the legal analysis and enforcement of noncompete terms. A descriptive framework of the parties’ competing …


Police Efficiency And The Fourth Amendment, L. Song Richardson Jul 2012

Police Efficiency And The Fourth Amendment, L. Song Richardson

Indiana Law Journal

Much of our Fourth Amendment jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a “stop and frisk,” courts currently assume that, in any given case, the presence or absence of reasonable suspicion can objectively be determined simply by examining the factual circumstances that the officers confronted. This Article rejects that proposition. Powerful new research in the behavioral sciences indicates that implicit, nonconscious biases affect the perceptions and judgments that are integral to our understanding of core Fourth Amendment principles. Studies reveal, for example, …


Governing Badly: Theory And Practice Of Bad Ideas In College Decision Making, Michael A. Olivas Jul 2012

Governing Badly: Theory And Practice Of Bad Ideas In College Decision Making, Michael A. Olivas

Indiana Law Journal

Jerome Hall Lecture, Indiana University Maurer School of Law, Bloomington, Indiana, January, 2011.


Enforcing Integrity, Katrice B. Copeland Jul 2012

Enforcing Integrity, Katrice B. Copeland

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.


Beyond Bailouts: Federal Tools For Preventing State Budget Crises, Brian D. Galle, Kirk J. Stark Apr 2012

Beyond Bailouts: Federal Tools For Preventing State Budget Crises, Brian D. Galle, Kirk J. Stark

Indiana Law Journal

More than two years after the official end of the Great Recession, state governments still face significant budget deficits that cannot be addressed without further drastic spending cuts or substantial revenue increases. The structural origins of the ongoing state fiscal crisis are well known. Excessively procyclical revenue structures, combined with spending obligations that increase with economic downturns, have resulted in a budget dynamic for the states that is not sustainable over the long term. The consensus solution to this problem is for states to save money during boom times (via budget stabilization or “rainy day” funds) and to draw on …


The Paradox Of Statutory Rape, Russell L. Christopher, Kathryn H. Christopher Apr 2012

The Paradox Of Statutory Rape, Russell L. Christopher, Kathryn H. Christopher

Indiana Law Journal

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape’s protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged—intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense—a sexually aggressive seventeen-year-old raping an adult now exposes the adult …


Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott Apr 2012

Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott

Indiana Law Journal

The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.

What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.

But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the …


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 …


Why Twombly Is Good Law (But Poorly Drafted) And Iqbal Will Be Overturned, Luke Meier Apr 2012

Why Twombly Is Good Law (But Poorly Drafted) And Iqbal Will Be Overturned, Luke Meier

Indiana Law Journal

The conventional wisdom with regard to the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal is that these two cases work together to usher in a new era of pleading. This reading of the cases, however, is wrong. In reality, Twombly was a valid application of the uncontroversial principle that a complaint must describe the real-world events on which the suit is based with some degree of factual specificity. The Iqbal opinion, unfortunately, mangled this concept by applying it to a complaint that described the real-world events on which the suit was based with sufficient …


Renewing The Chase: The First Amendment, Campaign Advertisements, And The Goal Of An Informed Citizenry, John Stewart Fleming Apr 2012

Renewing The Chase: The First Amendment, Campaign Advertisements, And The Goal Of An Informed Citizenry, John Stewart Fleming

Indiana Law Journal

No abstract provided.


"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn Apr 2012

"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn

Indiana Law Journal

No abstract provided.


This Is A Time For Hope And Change, Kevin D. Brown Jan 2012

This Is A Time For Hope And Change, Kevin D. Brown

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana


Becoming Too Small To Bail? Prospects For Workers In The 2011 Economy And 112th Congress, Lonnie Golden Jan 2012

Becoming Too Small To Bail? Prospects For Workers In The 2011 Economy And 112th Congress, Lonnie Golden

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana


Labored Law: Bilateralism Or Pluralism, Ossification Or Reformation, John N. Raudabaugh Jan 2012

Labored Law: Bilateralism Or Pluralism, Ossification Or Reformation, John N. Raudabaugh

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

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