Common Law Commons^™

The Fiduciary Game, Lauren R. Roth

Indiana Law Journal

Fiduciary duties are supposed to bridge the gap between public and private law. Private actors who engage in “public or quasi-public” functions (e.g., corporate directors and pension administrators) are often subject to fiduciary constraints to protect vulnerable parties who lack power in relationships with these actors. Recently, scholars have argued that both courts and legislatures have inappropriately expanded the use of fiduciary duties to purely private relationships. But what if the problem is not the expansion of fiduciary duties to private relationships, but the increasing delegation of public powers to private actors whose behavior cannot be adequately constrained by fiduciary …

Foreign States, Private Proxies, And “Discretionary” Torts On U.S. Soil, George K. Foster

Indiana Law Journal

The tortious act exception to sovereign immunity offers a vital path for tort victims to seek redress against foreign states for harms committed on U.S. soil. Yet some courts have narrowed the exception in troubling ways when rejecting claims alleging clergy abuse cover-ups, cyberattacks, and other serious misconduct. Some have held that the exception applies only to torts committed by state officials and employees, excluding private actors even when acting under state direction. Others have deemed conduct “discretionary”—and therefore immune—even when it patently violated U.S. law or contractual obligations. This Article challenges both readings. Drawing on legislative history, common law, …

The Law’S Failure To Protect Our Drinking Water From Pfas, Emily Levine

Indiana Law Journal

How did per- and polyfluoroalkyl substances (PFAS), the forever chemicals known to harm human health and appear in most Americans’ blood, spread so widely in drinking water? Why didn’t someone with the power and knowledge to stop this crisis step in sooner? Simply imposing limits on PFAS levels in public water systems is the bare minimum to protect American drinking water—a necessary step but only the starting point of a long path toward creating a regulatory framework that can withstand the whims of changing presidential administrations and political influences.

     It is too easy for the EPA Administrator, either out of …

Rethinking Courtroom Presence In The Virtual Era, Jenia Iontcheva Turner

Indiana Law Journal

Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining …

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 …

Outcome Sensitivity And The Constitutional Law Of Criminal Procedure, Lee Kovarsky

Indiana Law Journal

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. …

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 American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones

Articles by Maurer Faculty

Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.

Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …

Judicial Biography In The British Empire, Victoria Barnes, Emily Whewell

Indiana Journal of Global Legal Studies

This article adds to the biographic ''turn" in legal studies. While there is a large body of scholarship examining judges in the United States and the United Kingdom, comparatively little is written on their legal counterparts in the common law world. What can judicial biographies offer for comparative law? Do these studies generate useful information about the movement of law? What can be gained by a better awareness of the lives of those at the top of the colonial legal profession? This article shows that within the common law world, judges, like those in the United States and the United …

Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan

Indiana Journal of Constitutional Design

Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility …

Protecting Consumers As Sellers, Jim Hawkins

Indiana Law Journal

When the majority of modern contract and consumer protection laws were written in the 1950s, ’60s, and ’70s, consumers almost always acted as buyers, and businesses almost always acted as sellers. As a result, these laws reflect a model of strong sellers and weak buyers. But paradigms are shifting. Advances in technology and constraints on consumers’ financial lives have pushed consumers into new roles. Consumers today often act as sellers—hawking gold to make ends meet, peddling durable goods on eBay, or offering services in the sharing economy to make a profit. Consumers and business models have changed, but the laws …

Arbitration And The Federal Balance, Alyssa King

Indiana Law Journal

Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …

A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz

Indiana Law Journal

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns—a …

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to …

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. …

The Prosser Myth Of Transferred Intent, Peter B. Kutner

Indiana Law Journal

The main theme of this Article is that Prosser advanced a mythical doctrine of transferred intent. What Prosser asserted to be the law was not the law when he wrote his article on transferred intent and amended his treatise. The cases he relied on to support his conclusions on transferred intent did not support them. Moreover, despite Prosser’s great influence on American tort law, Prosser’s position on transferred intent is not the law now and should not be. Its consequences are undesirable. Recognition of transferred intent as a basis of liability is due primarily to its inclusion in the First …

Le Concept Dé Dignité Le Droit Américain, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

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 …

A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye

IP Theory

No abstract provided.

Proportionality, Rationality And Review, Paul Craig

Articles by Maurer Faculty

There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages …

Book Review. Cases, Materials And Texts On Unjustified Enrichment, Ralph F. Gaebler

Articles by Maurer Faculty

No abstract provided.

Readings In The Common Law, Paul L. Sayre

Indiana Law Journal

No abstract provided.

The Utilitarian Role Of A Restatement Of Conflicts In A Common Law System: How Much Judicial Deference Is Due To The Restaters Or "Who Are These Guys, Anyway?", Harold G. Maier

Indiana Law Journal

Symposium: Preparing for the Next Century-A New Restatement of Conflicts?

The Case Of Natural Obligations, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

James Wilson's "Assimilation Of The Common-Law Mind", Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

The Adverse Testimony Privilege: Time To Dispose Of A "Sentimental Relic", David Medine

Articles by Maurer Faculty

No abstract provided.

The Collaborative Model Of Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Statutes And Constitutions In An Age Of Common Law, Reed Dickerson

Articles by Maurer Faculty

No abstract provided.